ALJDEC decisions subject to certification as final

2016A-3682-CHC-ROC · Registrar of Contractors · 2018-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Karen Marie Shofron,

COMPLAINANT,

v.

Urban Element Inc,

License No:

193134

RESPONDENT.

No. 2016A-3682-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 19, 2018

APPEARANCES: Karen Shofron, Complainant; Christopher Mater, Attorney for Complainant; Simon Little, Complainant witness; Frank Vanderzee, Complainant witness; Mike Crow, ROC Inspector; Quentin Sashwany, Respondent and Qualifying Party; Venus Davlin, Attorney for the Respondent.

ADMINISTRATIVE LAW JUDGE: Randy Wolfson

_____________________________________________________________________

FINDING OF FACTS

Respondent Urban Element, Inc. (hereinafter “Urban”), holds license number 193134 issued by ROC.

Karen Shofron, Complainant, appeared on her own behalf and was represented by her attorney, Christopher Maters, Esq. Appearing for the Complainant at the hearing was also Frank Vanderzee as an expert roofing contractor witness and Simon Little. Quentin Sashwany, Respondent, is Urban’s qualifying party and owner. Quentin Sashwany appeared and testified on his own behalf and was represented by his attorney, Venus Davlin, Esq. ROC presented the testimony of Mike Crow, its Assistant Chief Investigator.

This matter was previously the subject of Complainant’s previous complaint filed on September 20, 2016.

Ms. Shofron owns a residence located at 1010 E, Weldon Ave., Phoenix, Arizona 8501 which is the construction site referenced in the complaint.

The September 20, 2016 resulted in a jobsite inspection by ROC Inspector Russell Reed on October 12, 2016 whereinafter a corrective work order [CWO]was issued to the Respondent on November 7, 2016. This initial CWO directed the Respondent “...remedy the following violations by the appropriate means:

Remove black tar like substance from garage door and roof joists and decking.

Repair nail blow outs on underside of front porch cover.

Remove wrinkles/ humps in rolled roofing.

Ensure manufacture warranty stands behind substrate that material is installed on.

A compliance inspection was conducted on the November 7, 2016 CWO by Inspector Reed. Inspector Reed’s compliance inspection notes revealed the following:

‘P1- Garage door: Tar substance has been removed.

P2- Front patio cover: Holes caused by nails have been repaired.

P3-Front patio cover: Holes caused by nails have been repaired.

P4- Back Patio: Rolled roof humps were removed.

P5- Back Patio: Most of Tar substance was removed, very minimal ammounts are visible compaired to initial inspection.

P6- Back Patio: Most of Tar substance was removed, very minimal ammounts are visible compaired to initial inspection.

P7- Back patio: some tar still remains visible on exposed pato substrate.

P8- Garage: Most of the tar was removed. Some is still visible.

P9- Garage: Most of the tar was removed. Some is still visible.

P10- Garage: Most of the tar was removed. Some is still visible. Some Areas worse than others.

Inspector Reed’s November 7, 2016 compliance inspection conclusion states:

“I believe the contractor has complied with the corrective work order issued by the Registrar. I also believe the tar leaking through the substrate is a manufacturer defect.

On November 08, 2016, the ROC, through Investigator Reed, wrote a letter to the Complainant advising the ROC is closing her September 20, 2016 complaint. Verbatum, the letter stated:

At the Compliance Jobsite Inspection, the investigator determined that all items in the complaint were resolved. Some of the issues raised in your complaint are not the responsibility of the Respondent. Those issues may be the responsibility of the product manufacturer. (Note: The Registrar makes no determination regarding the product manufacturer’s responsibility). The complaint is hereby closed. Please understand that nothing in this letter is intended to prevent you from seeking relief in another forum.

Aproximatly 10 months later, on September 20, 2017 a second complaint was filed by Karen Shofron alleging workmanship issues regarding the installation of a roof and ongoing black tar seeping onto building surfaces. Notice of the re-opening of the previously closed complaint was issued to the Respondent on September 18, 2017, along with a Notice of a jobsite inspection scheduled for September 28, 2017.

Urban timely filed its Answer to the Complaint on October 24, 2017.

Concurrently with the lodging of its complaint, the Complainant communicated with ROC Inspector Reed via e-mail that transmitted an attachment of copy of a letter sent to the Complainant from Frank Vanderzee of Legacy Roofing [Exhibit C-38] which asserts that the Respondent did not use the GAF Liberty Self-Adhering Roofing System materials for the roofing as contracted as was represented to the Complainant and to the ROC Inspector before this matter had formerly been closed.

In the letter and confirmed by Mr. Vanderzee’s testimony, Mr. Vanderzee’s statement in his letter was based upon a conversation which is alleged to have occurred at the job site with an un-named GAF company representative who told Mr. Vanderzee that the materials on the roof were not GAF materials, but the precise identification of the material’s manufacturer was not able, for unstated reasons, to be determined. The GAF representative did not testify at the hearing.

On October 6, 2017, following the jobsite inspection, a second CWO was issued requiring compliance on or before 5:00 p.m. on October 27, 2017. The second CWO directed the Respondent as follows:

“...remedy the following violations by the appropriate means: black tar like substance has leaked through the substrate and onto floors, personal property, etc. Determine the cause of the tar like substance and repair the cause by the appropriate means. The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.”

On October 30, 2017, a citation was issued by the ROC alleging 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 alleging a violation of A violation of A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action).

On December 19, 2017 the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on January 19, 2018, at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice of Hearing shows that the hearing was set to consider the charges made in the October 30, 2017 Citation and Complaint. At the hearing, the parties agreed that the Citation at issue was issued on October 30, 2017.

At the hearing, Mr. Crow, ROC’s Chief Investigator, testified consistent with the October 27, 2017 CWO and confirmed that the Respondent provided no notice that it had complied with the CWO by the October 27, 2017 and that thereafter the October 30, 2017 citation was issued. Mr. Crow did not know what was causing the roof to seep black tar.

The Complainant testified that the roof did not leak water and that it was waterproof. Her primary complaint was that the roof continued over time to leak black tar onto surfaces that were at the location where roof repairs were made. She testified that with the original roof, there were water leaks, but no tar leaks.

The Complainant made claims with her homeowner’s policy but stated the claim was denied as a non-covered event. The Complainant testified that she initiated a roofing warranty claim with the assistance of the Respondent to GAF. The Complainant declined to pursue her GAF claim but because, among other unstated reasons, GAF required a 3 foot by 3 foot sample of the roof be cut out of her roof and delivered to GAF for inspection.

Frank Vanderzee, a partner in Legacy Roofing for 8 years, testified that Legacy Roofing has been awarded a “GAF Master Elite” designation after training and passing field competitions from GAF.

He testified that with the roofing material, as heat from the sun hits the roof the heat melts the tar. This melting is normal and the melted tar is the substance that holds the material on the roof. The melting tar is by design. He stated that a non-asphaltic base sheet [rolled on and nailed under the cap-sheet – i.e., the shingle] is appropriate to prevent a leak through of tar in cracks, spaces and knot holes. He said he inspected a knot hole on the Complainant’s roof and did not see a base sheet had been installed.

Without any other inspection of the roof - other than a view from the floor of a single knot-hole – Mr. Vanderzee concluded that a base sheet had not been installed. Mr. Vanderzee testified that he did not pull up any of the cap sheet [shingles] or other product to inspect underneath to determine if a base sheet was present or not. With this inspection, he testified at hearing that the Respondent’s installation was below standard and a failure of workmanship not to install a base sheet on this job.

Quentin Sashwany, the Respondent, testified that a proper base sheet was installed on the roof at this site. Mr. Sashwany presented Exhibit R-1, a delivery invoice from RWC Building Products dated January 15, 2015 for a delivery of numerous items to the Respondent at the residence address of the Complainant. The Exhibit R-1 on its face show delivery of 5 roles of GAF base sheet to the Complainant’s address. Mr. Sashwany testified that he did install these rolls of GAF base on the roof before then applying the cap sheet of shingles. Moreover, he testified, the GAF Liberty Self-Adhering Roofing System materials listed in the Exhibit R-1 invoice were the materials installed on the Complainant’s roof. He testified that he had conferred with GAF by telephone and e-mail who instructed that the use of the type of bases sheet with the GAF Liberty Self-Adhering Roofing System materials was a proper method of installation.

Mr. Sashwany testified that he has no opinion or clue as to why the roof installation is leaking black tar. He suspects, although he admits he does not in fact know, it is being caused a manufacture defect in that the product may have not been tested or well suited for the extreme heat conditions of Phoenix.

Mr. Sashwany stated he suggested numerous options to assist the Complainant’s leaking tar issues: e.g. install drywall beneath leaks to avoid them showing; seal leak sites to prevent or slow leaking, etc. – all without additional charges to the Complainant. He suggested that applying an elastomeric coating to the leak areas would cool down the roof, slow the tar drip and eventually stop the tar drip. He testified that the Complainant rejected each proposal.

Notwithstanding that Complainant argues that the Respondent did not install a base sheet on this roof, the preponderance of credible evidence demonstrates that the Respondent did install the base sheet along with GAF Liberty Self-Adhering Roofing System materials.

Notwithstanding that Complainant argues that the cause of the tar leak was poor workmanship which the Respondent failed to remedy, there is no credible evidence of record that workmanship of the Respondent is the cause of the tar leak. There is no credible evidence of record for what is causing the tar leak.

. . .

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

There was no substantial evidence adduced to show that Urban Element Inc. is unscrupulous, unqualified, or financially irresponsible.

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

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3. Violation of any rule adopted by the registrar.

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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 which 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. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

The preponderance of the evidence shows that Urban Element Inc. did not violate Ariz. Rev. Stat. §32-1154(A)(3) by failing to perform its work in a professional manner. The evidence of record shows that there are several locations where tar dripping from the roof occurred, but the cause of that dripping tar has not been proven. It is suggested in the evidence that manufacture defect, not workmanship is the cause of the dripping tar – but again, no evidence of record appears which demonstrates why the roofing leaks tar. Moreover, even if were no manufacturer defect, a failure of workmanship was causing the tar leak is difficult of proof since there is no benchmark or standard to which the dripping tar that has occurred could be compared to determine whether it was within accepted tolerances.

A licensed contractor is not responsible for the installation of a defective product unless it can be shown that the contractor knew the product was defective when installed. There is no evidence of record to demonstrate that the Respondent or its agents or employees were aware that GAF Liberty Self-Adhering Roofing System materials may leak tar under Phoenix, Arizona heat conditions or under any other conditions.

The preponderance of the evidence demonstrates that Urban Element Inc. did not violate Ariz. Rev. Stat. §32-1154(A)(22) by failing to comply with the Directive.

Considering the facts and circumstances of this matter, the Citation in 2016A-3682-CHC-ROC should be dismissed.

RECOMMENDED ORDER

IT IS THE RECOMMENDED ORDER that the Citation in Case No. 2016A-3682-CHC-ROC be dismissed.

Done this day, January 27, 2018

Randy Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors