ALJDEC decisions subject to certification as final
2016A-3755-CHC-ROC · Registrar of Contractors · 2017-03-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Chelye A. Black,
COMPLAINANT,
v.
Crest Roofing, LLC,
License Nos. 295109 and 299792,
RESPONDENT
No. 2016A-3755-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 22, 2017
APPEARANCES: Chelye A. Black on her own behalf; Michael Anthony Blass for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
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FINDINGS OF FACT
On January 6, 2017, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on February 22, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.
Respondent Crest Roofing LLC (“Crest”) holds license numbers 295109 and 299792 issued by ROC. Michael Anthony Blass is Crest’s qualifying party.
The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.
Through the Citation, ROC alleges that Crest may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Crest’s license.
In January 2016, Crest entered a contract with Complainant Chelye E. Black through which Crest was to remove and replace Ms. Black’s existing built-up roof.
On September 26, 2016, Ms. Black filed a complaint with ROC alleging poor workmanship on Crest’s part.
There was financing in place to pay for the work. In her complaint Ms. Black declared that Crest had been paid $6839.07 and that Crest was “paid by bank before work complete & signed off.” This declaration was not true and at the hearing Ms. Black testified that the loan was not put through and Crest has not been paid anything for its work.
On October 19, 2016, ROC Investigator Arlo Houston conducted a job-site inspection.
On October 27, 2016, ROC issued to Crest a Directive ordering Crest to correct by appropriate means three items: 1) many areas of parapet walls and roof jacks have peeling elastomeric coating and there is blistering on roof; 2) uncured material in corners of parapet walls and inside corners not properly flashed; and 3) areas of the roof appear to holding water (improper cants) with blistering of roofing material in these areas.
Through the Directive ROC required Crest to provide written proof of compliance by November 14, 2016.
Through its answer and Mr. Blass’s testimony, Crest accepted responsibility for the poor workmanship regarding the elastomeric coating and the flashing at the parapet walls, but not the ponding.
On December 1, 2016, Mr. Houston conducted a compliance inspection. Mr. Houston’s opinion was that Crest did not comply with the Directive because it had not properly repaired all the peeling elastomeric coating, that the corners of the parapet walls did not meet the workmanship standards because there was uncured material present, and that Crest did to fix the ponding water did not meet the workmanship standards because ponding was still occurring.
On December 6, 2016, ROC issued the Citation.
Mr. Blass testified that Crest does not dispute that the elastomeric coating still needs repair or that there were spots at the parapets that were not initially properly sealed. Crest does not agree that it is responsible for the drainage issue.
Crest is willing to completely recoat the roof, but it would not make sense to do so until any other work on the roof is completed.
Regarding the uncured material at the parapets, Mr. Blass testified that the material is plastic and takes months to cure. Even after it is cured, the material will be soft during the summer and would not work properly if it did fully harden because it would be subject to cracking.
The roof is not draining properly because the deck is low in relationship to the scuppers. The roof that was removed was two layers, it had a built up area, and areas with rotting wood.
The underlying condition of roof deck could not have been ascertained without removal of the old roof.
The contract at sub-sections “If Additional Roof Layers are Found” and “If Wood Replacement is Determined” cross references the “Changes in Work” section, which shows that replacement wood is to be at an additional charge.
The roof’s failure to properly drain could be fixed by (1) lowering the scuppers; or (2) building up the deck.
Mr. Blass’s opinion was that building up the deck would be a bad choice because the slope of the roof would be reduced and the deck/slope is already shallow.
Lowering the scuppers is a viable option, but Ms. Black is unwilling to pay and Crest does not believe that this is within the scope of the contract.
In its answer, Crest asserted that the parties discussed the cost of lowering the scuppers, but Ms. Black did not want to pay to have it done.
Mr. Blass acknowledged that he had not personally talked to Ms. Black about the cost of moving the scuppers, but he was of the belief that Crest’s estimator Pete, had done so. Mr. Blass’s understanding was that Ms. Black had financial issues that affected her ability to pay for the work.
Mr. Blass could understand why someone might not have the scuppers done right away, particularly if costs were a concern, because the scuppers could be fixed at a later date.
Ms. Black disputes this and denies talking to Crest about the scuppers. Because Ms. Black submitted a false declaration in her complainant, she is not considered to be a reliable witness regarding her interactions with Crest. At the hearing Ms. Black testified that she is not willing to pay to have the work done.
Mr. Houston’s opinion is that Crest is responsible for any ponding water under the “acceptance of the surface” doctrine.
According to Mr. Houston, because Crest removed the existing roof, it accepted responsibility for the underlying surface. Ms. Black presented no argument in support Mr. Houston’s opinion and no discussion about the doctrine.
According to ROC’s Substantive Policy Statement 2017.01, under the acceptance of the surface policy, ROC requires a contractor that will perform work on a surface prepared by another to inspect the surface and call the owner’s attention to any defects in that previously prepared surface.
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.
“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).
“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).
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).
The scope of an Agency’s power is measured by its statutes and it cannot enact rules or policies that go beyond the legislative grant. Sharpe v. AHCCCS, 220 Ariz. 488, 207 P.3d 741 (App. 2009). Substantive policy statements are advisory only and do not impose additional requirements or penalties on regulated parties. Ariz. Rev. Stat. § 41-1001(22).
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).
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.”
Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).
Crest acknowledges that there were deficiencies in its workmanship with regard to the elastomeric coating and the sealing of the flashing at the parapets, which shows that Crest violated Ariz. Rev. Stat. section 32-1154(A)(3).
Regarding the drainage on the roof, the preponderance of the evidence does not show any workmanship violations on Crest’s part. Although Mr. Houston testified that Crest was responsible because it had “accepted the surface,” it has not been proven that the doctrine applies in this matter because the surface at issue (the roof deck) could not be inspected prior to Crest removing the old roof, Crest included information to this effect in the contract, and after the defect was discovered, Ms. Black declined to have Crest remedy it.
The preponderance of the evidence shows that Crest violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive without valid justification in that its attempt to correct the peeling elastomeric was not successful. It has not been shown by a preponderance of the evidence that Crest failed to comply with ROC’s directive to seal the parapets or to fix the drainage because the weight of the evidence shows that the material used to seal the parapets is expected to be soft and because the drainage was not the result of Crest’s workmanship.
Because Crest has violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22), ROC has authority to discipline its license.
In this case, Crest’s willingness to recoat the entire roof is considered a factor in mitigation. It appears that this work could have been completed already but for the dispute related to the scuppers. The fact that Ms. Black has not made any payments to Crest is also an important consideration.
Considering the violations at issue and the facts and circumstances of this matter, the imposition of a $100.00 civil penalty is appropriate.
RECOMMENDED ORDER
IT IS RECOMMENDED that on the effective date of the final Order in this matter,
Crest Roofing LLC must pay to the Registrar of Contractors in certified funds a civil penalty of $100.00.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order is forty days after the date of that certification.
Done this day, March 13, 2017.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors