ALJDEC decisions subject to certification as final
2016A-2612-ROC · Registrar of Contractors · 2017-03-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Annette Johnson,
COMPLAINANT,
v.
Universal Tectonics Incorporated,
License No: 207041, 206963, 285428, 221111, 180624.
RESPONDENT.
No. 2016A-2612-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Tuesday, February 21, 2017, at 1:00 PM
APPEARANCES: Annette Johnson (“Complainant”); Dan Chilton (Representative for “Respondent”); Sam Brush (“Witness1” for Respondent”); Brenda J. Lee (“Respondent’s Counsel”); and Randy Cason (“Investigator Cason” for the Registrar of Contractors (“Registrar” or “ROC”).
TELEPHONIC APPEARANCE: Jason Brown (“Witness2” for Respondent).
NON-TESTIFYING ATTENDEES: Craig Johnson (“Friend1” of Complainant) and Steven Anderson (“Friend2” of Complainant).
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. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:
FINDINGS OF FACT
Complainant is the owner/occupant of a residence located at 2007 East Silver Street, Tucson, Arizona 85719.
Respondent is the holder of Arizona Contractor License Nos. CR39.207041-D, CR37.206963-D, CR11.285428-D, B.221111-R, and B-2.1018624.C issued by the Registrar. Respondent’s License is current on February 20, 2017.
On or about July 19, 2016, Complainant submitted a Complaint with the Registrar alleging against Respondent 20 complaint of items to include poor workmanship; specifically, Item No. 19, “New roof had blue PVC glue dripped on it – on shingles right next to flashing for A/C unit, on Arizona room roof.”
Complainant contracted with Respondent upon receipt of their proposal dated June 21, 2016, for a total of $7,968.00. The scope of the work to be performed was:
“Furnish and Install one 3.5 ton package gas/electric Goodman 14 SEER air condition unit mounted on the roof. Existing Evaporative Cooler to remain with new ductwork as needed to replace that which is rusted out; and a new barometric damper installed under existing cooler. New electrical disconnect to be installed at new air conditioner on roof with power wiring run in new conduit from the existing service panel on north wall (breaker designated for electric stove). New manual thermostat with control wiring to be installed on wall in hallway. Condensate piping to be run in PVC from unit down to the ground. Misc sheet metal to be replaced as necessary. Unit to be mounted on factory built roof curb. Old gas furnace to be disconnected and removed from site. Install one new supply register in the ceiling of the kitchen with flexible ductwork from supply duct down from the new unit. Supply ductwork from the new unit to be modified to connect supply to all parts of existing and new duct. Return air grille in ceiling to remain with modification.
No other labor or material included.
Payment: 50% upon signing this proposal; balance due immediately upon completion.”
On June 29, 2016, Complainant made payable to Universal Tectonics check number 3004 in the amount of $4,000.00; followed by check no. 3006 made payable on July 8, 2016 in the amount of $3,000.00.
On July 28, 2016, Respondent filed its reply to Complaint requesting the complaint be dismissed asserting that “any PVC glue on the shingles does not reduce in any way the warranty provided by the Roofing Contractor,” and thoroughly addressing each of the 20 complained of items.
Investigator Randy Cason was assigned to investigate the 20 item Complaint, and performed a Jobsite Inspection on September 23, 2016. No action was taken on 19 of the 20 complained of items, with the exception of Item No. 19.
Investigator’s Observation, “The complainant pointed out the areas in question. There are two locations where there is blue PVC glue spilled on the roof. Picture #2 shows PVC glue splatters on the new asphalt shingles next to the new HVAC unit the respondent had installed and Picture #4 shows PVC glue on the patio’s roof covering – roll roofing material.
Governing Rule: Workmanship Standards Rule 4-9-108: A. A contractor shall preform [sic] all work in a professional and workmanlike manner.”
A Directive issued on October 13, 2016, with a completion date of October 28, 2016, at 5:00 PM, to remedy the following by appropriate means: “New roof had blue PVC glue dripped on it – On shingles right next to flashing for A/C unit, on Arizona room roof.”
Investigator Cason performed a Compliance Inspection on November 17, 2016, and noted, “Compliance Findings: Respondent is not in compliance.” “New roof had blue PVC glue dripped on it – On shingles right next to flashing for A/C unit, on Arizona room roof.” “The respondent had not removed all of the blue PVC glue from the asphalt roof shingles next to the A/C unit. The Arizona Room is in compliance.”
On November 21, 2016, a Citation was issued citing the following: 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) (“Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive.”)
Respondent submitted its Written Answer to the Citation on December 2, 2016, denying any violation.
A Notice of Hearing was sent to the parties on December 9, 2016, that a hearing is scheduled on the charges made in the Citation and Complaint to be held before the Office of Administrative Hearings.
HEARING EVIDENCE
Complainant provided her Opening Statement to which she stated she contracted with Respondent to install a new A/C unit, and asserted she will proved at this hearing that Respondent should be disciplined for poor workmanship; specifically, dripping blue glue on side and dripped on shingles of a pristine, new roof. She also alleged a lack of integrity since none of the workers told her.
Respondent’s Counsel stated in its Opening Statement that of the 20 items listed in the Complainant’s Complaint, only 1 was subject in the Directive, and that personality differences are not related to workmanship. The Evidence will show the blue PVC glue has been removed from the Arizona Room Roof and that the compliance inspection noted blue PVC glue cleaned up with the exception of a few spots the size of a pencil eraser near the A/C unit. Respondent took appropriate corrective action by contacting the original roofer that Complainant hired to install a new roof to comply with the Directive. Testimony will prove that the roof warranty is active and there is no damage to the shingles. Respondent should not be subject to discipline.
Investigator Cason testified he has 10 1⁄2 years’ experience, and that he was assigned to investigate Complainant’s Complaint. He testified that it took time to obtain an inspection date. Investigator Cason also testified that it was unclear whether a permit was required and obtained and that he did not receive a response from the City to his October 13, 2016, letter of inquiry.
Investigator Cason testified that during the jobsite inspection held on September 23, 2016, he took several photos and that upon finding PVC glue as noted, a Directive was issued to Respondent on October 13, 2016, with a completion date of October 28, 2016, and that he received a communication from Respondent that the work was complete. Investigator Cason stated that the Registrar does not tell a Respondent how to take corrective action, but only that it be performed by appropriate means and methods. Thereafter, he performed a Compliance Inspection to which he noted blue glue still existed near the flashing of the A/C unit, and so the matter was sent to Legal who in turn issued the Citation.
Complainant asked Investigator Cason to define “removed.” He replied that in some areas the PVC glue was removed and another area still present. Complainant asked if PVC glue was removed or was grit material applied. Investigator Cason stated he was unable to determine. He testified that the roof over the Arizona Room was cleaned and in compliance but the other area clean-up was not uniform. Photos from the compliance inspection held on November 17, 2016, were taken.
Respondent’s Counsel directed Investigator Cason to Exhibit R4 where 2 arrows noted multiple dots on the rooftop near the A/C unit. When questioned, Investigator Cason stated that the PVC glue was not removed in a professional workmanship manner, and that the few dots left are bigger than a pencil eraser. He further replied that if not completely corrected after expiration date stated in the Directive, then the matter is forwarded to legal for further action, unless the parties agree to an extension. He did testify that the larger spots were removed from the roof.
Respondent’s Counsel asked if the PVC glue is a defect in construction to which the Investigator replied that the workmanship is not fine since the blue PVC glue is evidence of sloppiness and work not complete in a professional workmanship manner but never stated the glue was evidence of any defect to the shingle.
Investigator Cason’s testimony is found to be credible.
Complainant testified that there is a balance owed to Respondent, she was not aware that the corrective repair was taking place, and that upon completion of the initial work, Respondent never mentioned the spill. She testified that Craig Johnson went on the roof and noticed the spillage. Craig Johnson was present but did not take the stand to offer any testimony. Complainant also consulted with an Attorney regarding this matter but Attorney was not represent at this hearing.
Complainant provide no testimony that the A/C unit was not functioning properly or inadequately and centered her testimony on the underlying item leading to the Citation, which is the clean-up of the blue PVC glue left near the HVAC unit.
Complainant asserted that Respondent is not a licensed roofer so they were not in a position to take corrective action. Respondent advised that they contacted her contracted roofer, American Roofing, which seemed the appropriate thing to do since Respondent acknowledged they are not roofers and American Roofing installed the new roof for Complainant and would be in the best position to perform the clean-up required under the Directive since they warrant the roof. American Roofing offered to do the clean-up of the dripped blue PVC glue of which they performed as a courtesy. Complainant stated that in doing so they were not doing her any favors.
Complainant offered testimony that in order to clean up the blue PVC glue around the A/C Unit, the unit needs to be lifted, and that she obtained three (3) estimates from three (3) different roofers. Complainant was reminded that this is a discipline hearing only. When asked by the Tribunal why she continued to delay the Investigator’s jobsite inspection to obtain roofing estimates, she indicated she did not have any experience with the Registrar’s Complaint process and believed she was doing the right thing.
Complainant asked about the method to clean up and testified that a solvent was used that caused damage by eroding the asphalt to the few shingles near the A/C unit.
During the hearing, it was evident that there was a breakdown in communication between Complainant and Respondent. Respondent indicated they were not allowed to access the roof to perform the clean-up, and because they are not licensed roofers, they thought it appropriate to contact the roofer, American Roofing, who Complainant hired to do the new roof install as it seemed most appropriate given Complainant contracted them for the new roof install and warranted the roof.
Witness2 provided telephonic testimony as a representative for American Roofing, the company hired by Complainant to install her new roof. Witness2 testified he has 20 years in the roofing industry. He testified the company installed a Tamko architect asphalt membrane granular shingle, 2-tone, black and white, also referred to as English Pewter for Complainant and that shortly after the roof job he was contacted by Complainant and asked for suggestions on clean up.
When Witness2 was asked if he has seen PVC glue dripped on roofs before, he replied, “yes,” and that glue fades into the shingles to some extent. He testified that Respondent called to ask about clean up and as a courtesy, given it was a minor fix, he sent an employee.
He further stated that his employee used appropriate methods to clean up, and that the sun will fade and blend any discoloration as the roof ages. He was asked if the blue PVC glue can be seen from the ground, to which he replied, no, you would have to be on the roof.
Witness2 was directed to Exhibit R4 and asked if the dots of glue are stains? He replied that the complained of dots of glue are cosmetic and not damaging to the roof and that they could be covered by re-adhering granular.
Witness2 testified that the 5 year warranty on the roof is still in effect, and that the manufacturer provide a limited lifetime warranty which used to be 30 years. He was asked if appropriate means were used to clean-up the PVC glue to which he replied, Yes. He was asked if the shingles needed to be replaced to which he replied, No.
Complainant asked Witness2 if he recalls a discussion in which he was ask if the shingles needed to be replaced to which he replied he does not recall. Complainant further questioned whether he directed her to obtain estimates to replace or restore shingles to which he replied he was responding to her request and never said shingles had to be replaced.
Testimony was obtained from Respondent that the roof is pitched on an angle and sometimes there is spillage but the sun will remove PVC glue through oxidization. Sealant comes through but will oxidize, and they would never use a glue that would damage the roof.
Respondent testified that he took appropriate corrective action and was told by the roofer that their employee knocked at Complainant’s, no one answered, so they completed the roof clean-up.
Witness1 stated he is a retired roofer with 35 years’ roofing experience. He is familiar with Tamko products. He was present at the Jobsite Inspection and personally observed the roof. He testified that when Tamko products are shipped, shingles are stacked one on top of the other and shipped in packages. Upon arrival, the shingles often have black stains until they oxidize, and after a few rains are gone.
Complainant stated in her Closing that she is disappointed in the workmanship, outside of the unprofessionalism she endured, she finds the blue PVC glue to be poor workmanship. She further stated that no one was authorized to make repairs, and that she obtained estimates from three (3) professionals on the cost to repair. That Respondent was not licensed to perform the clean-up since they are not roofers.
Respondent stated in its Closing that they took appropriate means to perform the clean-up. That testimony was provided by both Witness1 and Witness2 that the clean-up manner instituted was appropriate to address clean-up of the dripped blue PVC glue that was classified as cosmetic.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).
Credible testimony established Respondent performed substandard work, specifically, the blue PVC glue that dripped near the HVAC unit. Thus, Complainant established Respondent’s work on the item specified in the Directive was not done in a professional workmanlike manner in violation of A.A.C. R4-9-108 and thereby of A.R.S. § 32-1154(A)(3).
An A.R.S. § 32-1154(A)(22) violation is warranted even though Respondent made good faith efforts to take corrective action for clean-up of the item specified in the Directive, but there was still blue PVC glue at the Compliance Inspection around the HVAC unit. Investigator Cason’s testimony established that Respondent did clean up the PVC glue that dripped over the Arizona Room but failed to fully clean up the PVC glue dripped near the HVAC unit leaving behind a few spots of PVC glue.
Investigator Cason credibly testified that the PVC glue left around the HVAC unit flashing is sloppy workmanship. Complainant credibly testified that Respondent failed to properly clean up the roof, but stated in her testimony that she would not allow access to the roof in order for Respondent to take corrective action to clean up the dripped PVC glue which stands to mitigate discipline for Charge 2. Respondent took appropriate corrective action by contacting the contracted Roofer who warranted and installed Complainant’s new roof for clean-up of the roof, however, the clean-up was substandard. Complainant further stated during the hearing that the American Roofing wasn’t doing her any favors by accessing the roof to perform the clean-up.
Complainant provided three (3) estimates to which she obtained from roofers prior to Investigator Cason’s jobsite inspection. The three (3) roofer estimates set forth costs to include disconnecting and lifting the HVAC unit in order to replace a few shingles that had spots of the dripped PVC glue. Complainant was reminded the purpose of this hearing is to determine whether Respondent should be disciplined for Charge 1 and Charge 2 set forth in the Citation. The Directive provided that workmanship issues be corrected no later than October 28, 2016 by a properly licensed contractor hired by Complainant.
Because Respondent is not a licensed roofer, and the Directive involved clean-up of PVC glue that dripped on roofing shingles, Respondent took appropriate action by contacting the roofer who Complainant hired to install the new roof to perform the clean-up since they would be knowledgeable on the proper means and method to perform the clean-up, and responsible for warranting the new roof.
At the Compliance Inspection, the PVC glue dripped over the Arizona Room was completely cleaned up and in compliance but was incompletely clean up and not in compliance around the HVAC unit where there remained blue PVC glue.
The preponderance of the evidence established that Respondent failed to provide adequate clean-up of the PVC glue around the HVAC unit. This failure resulted in poor workmanship standards. While the Respondent attempted to take appropriate means to comply with the Directive, this Tribunal concludes that Respondent, to some degree, 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 Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s licenses effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered.
In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification
Done this day, March 13, 2017.
/s/ Linda Marie Brown
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors