ALJDEC decisions subject to certification as final

2016A-2345-ROC · Registrar of Contractors · 2017-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jill Lynn Baker,

COMPLAINANT,

v.

International Contracting Co Inc dba,

Premier Roofing and Water Proofing Company ,

License No: 074044 and 293635

RESPONDENT.

No. 2016A-2345-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 22, 2016 at 1:00 PM

APPEARANCES (TELEPHONIC/TUCSON): Jill Lynn Baker (“Complainant1”); Chris Baker (“Complainant2”); Robert Hill (“Respondent” Corporate Officer for International Contracting Co., Inc. dba Premier Roofing and Water Proofing Company); Scott Humble (“Attorney” for Respondent); and Anthony Romero (“Witness1” Superintendent for Respondent).

PHOENIX APPEARANCES: Steven Lawton (“Investigator Lawton” for the Registrar of Contractors (“Registrar” or “ROC”).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar of Contractors. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

Background and Procedure

Respondent is the holder of License No. B-1.074044-R, CR42-293634-D which are current as of July 6, 2016, and CR42-293635-D which is listed as voluntary withdrawn.

Jill Baker filed a Complaint on or about July 1, 2016, and provided three (3) proposals attached to the Complaint as follows:

January 21, 2016: Re: Recoat Roof. Scope of Work: 1. Clean roof thoroughly; 2. patch all pipe penetration, cracks and other roof penetrations, and 3. apply one coat of white elastomeric roof coating. Price is $1718.00.

January 21, 2016: Re: Install new 1⁄2” leveling board and polyester and roof coating at ponding area over garage door 13’x30’. Scope of Work: 1. Install 1⁄2” fiber board insulation with plates and screws, apply roof coating and embed 3’ polyester fabric, smooth out all wrinkles and ensure polyester fabric is full adhered. Let dry and apply final coat roof coating. Price is $600.00.

January 28, 2016: Re: 6732 E. Calle Cadena. REROOF. Scope of Work: Remove existing roof to substrate & clean throughly. Inspect plywood to ensure soundness. (an added charge of $32 for 1⁄2”x 4’x8’ sheet of plywood installed if needed). When roof is made ready we will install a fiberglass base sheet sprinkled mopped with hot asphalt followed by two fiberglass ply sheets fully mopped in hot asphalt. Apply one coat of emulsion let cure at least 12 hrs. Apply 1” coat of white roof coating let cure for at least 12 hrs. Apply final coat of white roof coating. Price is $8325.00+tax.

Price includes new 1/2” fiberboard insulation over north side of carport starting on the east side 12’ N. to S. in a triangle 28’ E. to W. 2’ N. to S. [I believe the direction may be received. The longer area runs N/S while the shorter areas runs E/W]. 9. New roof jacks, new metal edge, and new skylite domes for 6—2’x2’ and 1—4’x4’. Cricket on west center location will receive 1⁄2” fiberboard over it. Three small crickets will be added at small walls that are blocking water flow.

EXCLUSIONS; ANY ITEM NOT MENTIONED ABOVE

The proposal set forth payment upon completion with assessed interest for unpaid amounts.

The Proposal stated, “It should be expressly understood that the warranty included only that roofing installed by us and that our liability herein is not to be construed as that of an insurer for damage of any kind caused by leaks and it shall extend no farther than the repair of such leaks by us with no charge to owner.”

accepted a proposal prepared by Respondent dated January 28, 2016 to perform “reroof” work at residence located at 6332 E. Calle Cadena, Tucson, Arizona 85715 (“Residence”).

Of the three (3) proposals submitted with the Complaint by Complainant, the Proposal dated January 28, 2016 for a price of $8325.00 was signed on February 4, 2016 as “Acceptance” by the Owner or Agent of Owner for the residential work to proceed as Re: 6732 E. Calle Cadena. REROOF. This is also reflected as the Contract amount on the Complaint Form as Contract Amount $8,325 + tax.

Complainant noted work stopped on May 20, 2016, and no payments have been made to Respondent.

Complainant stated Respondent did not properly perform and alleged noise and air concerns with the skylights, improper fit with the 4’x4’ skylight, original ponding issue not resolved, and concerns with metal flashing.

The Registrar sent Complainant a request for additional information to Complainant on July 8, 2016, that stated “We are missing Item 1, Contract ((you submitted a signed proposal) and an explanation of a verbal contract with Premier.”

On July 8, 2016, a copy of the Complaint was sent to Respondent, Respondent replied to the Notice on July 15, 2016, and further stated, “We have been trying to resolve this with the owners but we can’t come to an agreement as what should be done. . . “

A jobsite inspection was conducted on August 2, 2016, with all parties present. It was noted that it was raining at the time. Complainant alleges that the roof is ponding at the garage of at least 1 1⁄2 inches and that the sky lights are not for a flat roof.

Investigator Lawton noted four complaint items as follows:

Complaint 1: New skylights used for there roof bring concerns about noises and air. Were these the correct skylights for a flat roof. Investigator’s Observation: it was observed that these skylights had been installed per manufacturers specs and were the right lens for the frame. Governing Rule: N/A

Complaint 2: 4x4 skylight lens does not fit properly and the metal does not connect on the inside. Investigator’s Observations: Per a statement provided by the Respondent that they are aware that the skylight lens is a 1⁄4 inch to wide causing the frame not to connect. Respondent informed me that they have the correct lens at the inspection. Governing Rule: Workmanship Rule: ARS § 32 32-1154(A)(3); Namely R4-9-108.

Complaint 3: Ponding over garage is 1 1⁄2 inches in depth. Investigator’s Observation: On this day it was raining and it was observed that there is ponding and is 1 1⁄2 inches in depth and covers 1/3 of the span. Ponding is causing coating to peel and possible leaking into the garage. Could not substantiate leaking. Governing Rule: Workmanship Rule: ARS § 32 32-1154(A)(3); Namely R4-9-108.

Complaint 4: Metal flashing is missing above parapet at back patio. Investigator’s Observation: It was observed that there was not any flashing at this parapet and is not required and is not part of the contract. Governing Rule: N/A

On August 4, 2016, a Directive was issued to Respondent to remedy the following violations by the appropriate means:

4x4 skylight lens does not fit properly and the metal does not connect on the inside.

Ponding over garage is 1 1⁄2 inches in depth and 1/3” the span.

Roof coating is peeling off.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Written proof of compliance was required no later than 5:00pm on 08/18/2016.

A Compliance Jobsite Inspection was conducted on September 27, 2016. All parties were present. The roof was flooded with a garden hose to test for possible ponding issues.

Compliance Findings

It was observed that there is ponding at the area of the roof near a skylight on the west side of the house that was created when the Respondent corrected the original issue in the complaint of ponding over the garage area. The area over the garage is now draining off after the test, but is now needs to be determined if the roof is dry within 48 hours. Complaint went up on roof to check for ponding and sent picture to me showing there was a 1⁄4 inch of rain water still left on the roof.

4x4 skylight over kitchen has been repaired per corrective.

Roof coating on the roof is still bubbling and cracking in the area of the ponding and alligatoring in various areas of the roof.

On October 7, 2016, the Registrar issued a Citation citing the following possible violations: Charge 1: A violation of Rule 4-9-108, titled ‘Minimum construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3) and Charge 2: A violation of A.R.S. § 32-1154(A)(22).

Respondent’s Attorney filed its’ Written Answer to Citation and Complaint on October 24, 2016, citing defenses to the charges on the grounds of access denied to Respondent to remedy at the time the Citation was issued and further supporting their positon with copies of communications exchanged between the parties.

A Notice of Hearing was sent notifying the parties that a hearing will be held by the Office of Administrative Hearings on December 22, 2016 at 1:00 PM.

Hearing Evidence

In opening statements, Complainant stated there is still ponding and Respondent was provided several opportunities to remedy and they lost confidence in Respondent.

Respondent’s Attorney stated the evidence presented will prove that the Respondent has been ready, willing and able to do the work but it was denied access.

Complainant testified that they allowed access to Respondent on or around September 12, 2016

Respondent asserts that in all fairness one opportunity is not adequate to remedy. Other concerns were the weather in that this is Monsoon season so there is a lot of rain that caused delay.

Investigator Lawton provided testimony in narrative format as to his involvement in the matter including a recap of his Jobsite Inspection Notes, preparation of the Directive and the Compliance Jobsite Inspection. He also stated that after it became apparent that the parties were no longer working together, he referred the matter to the Registrar’s Legal Department.

During the hearing, Investigator Lawton set forth the workmanship requirements to roofing standards and cited page 29, Item 9 of the Rules that allows for an acceptable amount of ponding, specifically, 1/4 inch. Range Allowance 1/3 inch minor to 1⁄2 inch deep.

Discussion ensued surrounding installing scuppers, as proposed by Respondent to remedy any ponding issue, of which would require permit and plans.

Investigator Lawton stated the parties are free to continue to work together to resolve the matter up to and including the date of the hearing.

Investigator Lawton’s testimony is found to be credible.

Complainant2 provided testimony that no contact was had with Respondent until August 11 to arrange to remedy the issues listed on the Directive.

Respondent’s Attorney questioned Complainant2 if whether he is a professional roofer? No. If he was on the roof with broom when the roof was wet sweeping? Unaffirmed. If he is aware that sweeping the roof when wet could cause damage to the emulsion coat? Unaffirmed.

He also questioned Complainant2 on whether any monies have been paid for services received from the date the estimate was provided and accepted to which he replied no.

Respondent’s Attorney asked Complainant2 if access was denied to Respondent during August 4 through August 18 to which he replied his wife does the scheduling.

He was asked what type of device was used to take the photo that was referenced in the Compliance Jobsite Inspection, to which he replied a camera phone. Date and time: Oct 5 at 5:48pm.

He was asked if it was raining. He replied, it was raining off and on.

He was asked whether there was any precipitation within 48 hours of taking the photo? Not sure.

Respondent’s Attorney asked if that was his thumb in the photo referenced as C17 to which he replied, yes. He asked if that was wood? Yes. And asked if Respondent was provided with a copy of the photo, to which he replied, “not aware.”

Complainant1 testified that she did not deny access to Respondent during August 4 to August 18. Respondent’s Attorney asked if she could refer to Exhibit B of the Answer to the Citation and if that was her communication. She replied, Yes.

Respondent’s Attorney asked if Mr. Hill requested a copy of photo of ponding to evaluate any ponding and fixing the problem? Believe the Registrar would forward.

Complainant was asked by the Tribunal if she received a copy of the Citation and was aware of the 15 day window of opportunity placed on Respondent to repair to which she replied yes. Complainant continued to testify that access was not denied and that she was waiting for direction from the Registrar.

Respondent testified that it is the current owner of International Contracting Co., Inc. DBA Premier Roofing and Water Proofing Company and has been for the last 54 years.

In its’ years of business, the company has had one complaint filed against it that was later dismissed.

Respondent testified that it attempted to continue to work with Complainant and that it was denied access. That it requested a copy of the photo to see the issue and work to fix. That it completed the job in February 2016 for a total of $8,000 and change and that to date the company has not received any payment. It requested a joint inspection on August 11 and received a response from Complainant to not do another thing. Respondent asserts the Complainants would not let them in prior to the 18th and they were not given an opportunity to perform a 48 hour ponding test.

Complainant2 asked Respondent if it was aware of the testing after the cricket was installed. Respondent replied it wasn’t aware.

Complainant1 asked Respondent to review Exhibit C5 dated June 1 2016 that was also attached to the initial Complaint and asked if it was responsible for sending the communication. Respondent replied, yes.

Witness 1 testified that he has 34 years of experience as a roofer. That this work on this job was to apply a 3 ply roof emulsion coating. The process involves laying asphalt, emulsion, and final coat. He indicated that the stages take time to apply.

Testimony was provided that any tar on the patio was cleaned up, that the skylight was remedied, and that they never spilled a bucket of tar on Complainant’s property. Witness 1 testified that the business has gone above and beyond to work to satisfying the Complainant’s end product of reroofing.

Witness 1 stated weather conditions also caused delay since a good 4 dry days is needed to apply coatings to allow time to dry before setting the next layer.

Witness 1 testified that to repair the flaking, that they would need to recoat and this requires so many days to perform properly. He also testified that using a wet broom on the surface causes damage to the coating. He wanted to resolve and did not see photo of ponding until the hearing, and that he has discussed with Complainants installing scuppers to which they seem to reject.

Complainant 1 asked Witness 1 if he stated, “don’t know how to fix, do you?” to which he replied that at times remedies require some trial and error and can take multiple times to repair.

Witness 1 testified that while they await payment, the reroof work carries a two year warranty.

In closing, Complainant2 stated that Respondent has had ample time to fix and has failed to correct the complained of issues.

Respondent’s Attorney stated that Respondent is ready, willing and able to repair but that they have been denied access. They have not been able to address the additional ponding noted in the Compliance Jobsite Inspection or even see to confirm the peeling of coating.

All the parties testimony is found to be credible.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1154(A).

The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”

Respondent credibly testified that it has made several good faith attempts to working with Complainant to obtain their satisfaction with the workmanship but has been denied access. This Tribunal finds that the record supports continued good faith efforts made by Respondent to working with the Complainants to obtain their satisfaction even though it has not been paid any portion of the contract dollar amount.

This Tribunal finds that the attached Proposal signed as Acceptance by Complainant to the Complaint setting forth the scope of work to be performed was not specific to remedying any existing ponding issues even though Respondent testified that this was part of the work to be performed.

Additionally, this Tribunal finds the references made and exhibits attached to Respondent’s Written Answer to be substantiated as to supporting a finding that Respondent has been denied access to remedying.

This Tribunal finds testimony obtained from Witness 1 to be credible in that Respondent has continued to warrant its work and attempts to work to obtain the Complainant’s satisfaction but has been unreasonably denied access.

This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

RECOMMENDed order

In view of the foregoing, it is recommended that this matter be dismissed.

Done this day, January 11, 2017.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors