ALJDEC decisions subject to certification as final

2016A-958-ROC · Registrar of Contractors · 2016-12-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bill's Awnings and Construction Co,

COMPLAINANT,

V.

Triple R Roofing Inc., License No: 209226,

RESPONDENT.

No. 2016A-958-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 3, 2016 with the record held originally held open until December 5, 2016 to allow Respondent Triple R Roofing, Inc. (Respondent or Triple R) to perform corrective work and obtain a compliance inspection. A further hearing was convened on December 13, 2016 after it became apparent that it was not possible for Respondent to perform corrective work.

APPEARANCES: Bill’s Awnings and Construction Co. (Complainant) was represented by its qualifying party, Daniel Tharp at the initial hearing, but did not appear at the further hearing. Respondent was represented by its qualifying party Douglas Ray.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Complainant holds Arizona Contractor’s License Nos. 266610 and 090162 and was the general contractor for a roofing project at the Glasgow residence located at 20840 East Concho, Mayer, Arizona 86333.

Respondent holds Arizona Contractor’s License No. 209226 and was a subcontractor for Complainant on the Glasgow’s roofing project.

On December 21, 2015, Bonnie Glasgow filed complaint number 2015-5195 with the Registrar alleging that Complainant had performed substandard work when installing roofing at her home. Complainant alleged Respondent performed portions of the substandard work relating to the wrinkled cricket and peeling front porch roof and filed a complaint against Respondent on March 22, 2016.

The Registrar assigned investigator Jim Diamond to investigate the complaint number 2015-5195.

Diamond scheduled a jobsite inspection for April 12, 2016, which both Glasgow and Complainant attended. Diamond testified at the hearing on complaint number 2015-5915 that he went up on the roof and substantiated that there were issues with: (1) the stagger of the shingles not being installed according to GAF manufacturer specifications; (2) shingles on the pitched roof being out of square; (3) numerous exposed fasteners not being sealed; (4) over-driven fasteners; (5) shingles failing to provide the necessary overhang; and (6) wrinkled roofing. He also found that Complainant had failed to pull the necessary permit before it removed a significant amount of roof sheeting. Diamond also informed Complainant that its contract failed to inform Glasgow of her right to file a complaint with the Registrar.

On May 19, 2016, Diamond sent Complainant a Directive from the Registrar in case number 2015-5195. The Directive stated in pertinent part as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). * * * You are hereby directed to remedy the following violations by the appropriate means:

Item 1- Poor work- The shingles have not been installed in accordance with manufacturer specifications as the shingle stagger requirements were ignored, exposed fasteners (shiners) are present and not sealed and the shingle overhang requirements at the eaves and rakes have not been met.

Additionally, at the west end of the cricket, the modified roofing is wrinkled and at the front of the flat roof, there is a tear that has peeled up at the fascia.

Also at the front porch roof, the shingles were installed in a manner that is not straight and square with the edges and the ridge.

[Complainant] is to correct the condition in an appropriate manner.

Item 2- When a substantial quantity of roof sheathing is replaced, Yavapai County requires that a building permit be obtained and the project inspected. It does not appear that a permit was obtained.

[Complainant] is to obtain the necessary permit and comply with any Yavapai county inspections and requirements in an appropriate manner.

Item 3- [Complainant’s] contract does not comply with the statutory requirements specified in ARS 32-1158.

[Complainant] is to review the attached violation letter and provide a compliant contract to the investigator within the time frame mandated on this directive.

The Directive contained a completion date of June 3, 2016 at 5:00 pm. During the time period specified in the complaint, Complainant did not return to the Glasgow home and did not attempt corrective work.

. Diamond than forwarded complaint number 2015-5195 to the Registrar’s Legal Department for review.

On June 16, 2016, the Registrar issued Complainant a Citation. That Citation contained three charges. Charge 1 reflected “[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).” Charge 2 referenced “[a] violation of A.R.S. §32-1154(A)(12) (“[f]ailure in any material respect to comply with this chapter”) and in particular a lack of compliance with A.R.S. §32-1158(B). Charge 3 specified a violation of A.R.S. § 32-1154(A)(22), namely “[f]ailure 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.”

Hearing was held in complaint number 2015-5195 on August 24, 2016. During that hearing the Tribunal summarized the testimony of Daniel Tharp as follows:

Daniel Tharp admitted on the record that some of the issues on [Glasgow]’s roof required correction. He said that the first issue that needed correction involved the wrinkled roofing on the cricket that had been installed Respondent’s subcontractor, Triple R Roofing. Tharp indicated that Triple R maintained that the wrinkles would resolve on their own and said that Respondent had filed a complaint with the Registrar against Triple R. Tharp agreed that as the general contractor Respondent was responsible for Triple’s R’s work. Tharp also acknowledged that the [Complainant] had not addressed the other issues in the Directive, except for providing Diamond a revised contract and did not return to the [Glasgow’s] house following the issuance of the Directive. He said that prior to the filing of [Glasgow]’s complaint, [Complainant] attempted to settle this matter.

Diamond testified at the hearing on August 24, 2016 as well. The following day, he authored a note opining that the whole roof needs to come off at the Glasgow residence and that corrective work on the cricket could not commence until Complainant performed other corrective work for which it was responsible. As such, Diamond did not send Respondent a Directive, but simply forwarded the file in the above matter to the Registrar’s legal department for review.

On August 26, 2016, the Registrar issued Respondent a Citation. That Citation contained one charge of “[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).”

On the same date, the Tribunal issued its Administrative Law Judge Decision in 2015-5195, which the Registrar adopted in a Final Administrative Decision and Order on September 7, 2016. The ALJ Decision found in pertinent part that:

[Complainant] conceded that its subcontractor performed work of questionable quality on [Glasgow]’s roof and that the work done by [Complainant]’s own men on the roof also needed to be addressed. Diamond offered credible testimony regarding the various issues surrounding the shingles, fasteners and wrinkles on the roof. Thus, [Glasgow] established [Complainant]’s work on the above items was not done in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

On September 7, 2016, Douglas Ray of Respondent filed an answer to the Citation which stated:

The complainant Bill’s Awnings filed a complaint on Triple R Roofing, because his customer filed a complaint against him.

When I checked the job with the customer [s]he did not mention any problem with the work I did.

The problem she was referring to was the shingle roof installer[‘]s mistake and the wood work, both done by Bill[‘]s Awnings employee. The work I did look good to me and it had ice and snow melt off. It did not leak.

I do not know what the exact complaint with the work I did is.

For these reasons, [m]y licensed should not be suspended or revoked.

Ray testified that he learned for the first time at hearing that the Citation stemmed from the wrinkled cricket and a piece of peeling roof above the front porch. Ray admitted to performing the work on the front porch roof and said he could easily fix the problem if Glasgow granted Respondent access to do so.

Diamond agreed to contact Glasgow and see if she would allow this repair to be made. The record was held open to afford Respondent time to correct its work.

Ray denied performing work on the cricket. He recalled that supplies were in the way when he went to access the cricket so he instructed Complainant’s employee on how to perform the work and left.

Tharp said he had no reason to dispute Ray’s testimony regarding who did the work on the cricket and that he was sure Ray was correct, but this was the first time Ray evert suggested he had not performed the work. Tharp said if Respondent did not perform the work as agreed upon, it had abandoned the project, a charge not included in the Citation.

A series of text messages were read into the record that had been exchanged between the parties in which Complainant begged Respondent to help it make Glasgow happy and Respondent denied working on the cricket. Other correspondence between the parties leaves it unclear as to who did what work on the roof. See Exhibits C and D.

Diamond testified that if he had been aware of the dispute over who did the cricket work, he would not have recommended that this item be the basis of workmanship violation against Respondent. He noted that if Respondent corrects the front porch roof or is denied access to do so, that item would also not be the appropriate basis of a workmanship violation.

Following hearing, on November 16, 2016, Diamond sent Glasgow an email requesting that Triple R be granted access to correct the front porch roof.

That same day, Glasgow replied and advised that she had already had the whole roof redone in October 2016 in order to comply with county requirements.

On November 17, 2016, Diamond advised Glasgow that given the circumstances access was not required and no additional inspection by the Registrar would be done.

Further hearing was set for December 13, 2016 to allow the parties to address these new developments. By Order, the Tribunal invited Bonnie Glasgow to appear at the further hearing and testify regarding who had done what work on her roof. Glasgow did not appear at the further hearing.

Diamond testified that in cases where a contractor is not given access to perform corrective work, the complaint is usually closed and a violation of the workmanship standards is not sustained. Diamond indicated that he would not recommend a workmanship violation unless it could be determined which contractor performed the work in question.

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).

Complainant established Respondent’s work on the front porch roof was not done in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3). However, because Respondent was not afforded the opportunity or access to correct his work, the complaint should be closed and no violation found.

Complainant did not establish that Respondent performed any work on the cricket and as such the poor work on the cricket does not support a finding that Respondent violated the Registrar’s workmanship standards.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the complaint be closed due to a lack of access to perform corrective work.

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 will be 40 days from the date of that certification.

Done this day, December 14, 2016.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors