ALJDEC decisions subject to certification as final

2017A-3101-CHC-ROC · Registrar of Contractors · 2017-10-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gerald Adelbert and Joan Michelbrink

COMPLAINANT,

v.

RGB Restoration and Builders LLC,

License Nos. B.277891-R

B-1.277890-C,

RESPONDENT.

No. 2017A-3101-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 16, 2017, at 1:00 p.m.

APPEARANCES: Gerald Adelbert Michelbrink and Joan Michelbrink (“Complainants”) appeared telephonically on their own behalf; RGB Restoration and Builders LLC (“Respondent”) appeared George Alper, its member.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about April 26, 2012, the Arizona Registrar of Contractors (“the Registrar”) issued License Nos. B.277891-R for residential general contracting and B-1.277890-C for commercial general contracting to Respondent.

On or about June 19, 2017, Complainants filed a complaint with the Registrar against Respondent alleging 15 specific items of allegedly poor workmanship in Respondent’s performance of its contract to replace the roof on Complainants’ house at 2830 College Heights Rd., Prescott, Arizona 86301.

The Registrar assigned the complaint to its Investigator, Chris Allison, for investigation. On or about June 28, 2017, Investigator Allison performed a jobsite inspection. Based on his inspection, on June 30, 2017, Investigator Allison issued a directive to Respondent to repair 8 items of complaint on or before 5:00 p.m. on July 17, 2017.

On or about July 24, 2017, and August 1, 2017, Investigator Allison performed compliance jobsite inspections. Inspector Allison reported that Respondent had fully corrected 6 of the items on the directive, but that the following two items still required some correction:

All items were correct except items 1 and 8.

Item 1: There was a section of roof that had to be removed by Respondent to correctly nail the base layer. This section of roof was leaking into the master bedroom.

Item[] 8: The transition from the flat roof to the parapet was not done per manufacture[r] installation. There should be a cant strip and the roofing should be torched down.

Investigator Allison referred the complaint to the Registrar’s Legal Department. On August 8, 2017, the Registrar issued a Citation against Respondent’s contractor’s licenses, charging cause to revoke or suspend the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Respondent’s member Mr. Alper filed a timely written answer to the Citation, stating that Respondent’s license should not be suspended because Complainants were difficult, Respondent had repaired the leak, and Respondent had installed a cant strip underneath the transition area of the modified bitumen roof that Respondent had installed.

An evidentiary hearing was held on October 16, 2017. Complainants testified and submitted thirteen exhibits. Mr. Alper testified, submitted one exhibit, and presented the testimony of Eric Person, Respondent’s project manager for the construction of Complainants’ roof. Investigator Allison also testified

Hearing Evidence

Investigator Allison testified that at the July 24, 2017 compliance inspection, Respondent had removed a section of the roof to correct the Glasbase and that Complainants stated that the roof was leaking where the section of roof had been removed and replaced. He scheduled the August 1, 2017 compliance inspection to verify the roof leak. Investigator Allison testified that he saw evidence of a roof leak at the August 1, 2017 compliance inspection.

Inspector Allison testified that although the roof no longer showed “areas that [were] lifting, bubbling, and creasing,” which were the deficiencies that item #1 of the June 30, 2017 directive had required Respondent to correct, because the roof was now leaking Respondent had not fully corrected the noted deficiencies in the roof.

Complainants acknowledged that within seven days of the August 1, 2017 compliance inspection, Respondent returned to repair the roof and that the roof was no longer leaking. Complainants acknowledged that Mr. Person had quickly responded to all of their complaints, but expressed concerns about whether they would be able to sell their house and whether it would remain weather tight through a Prescott winter.

Mr. Alper stated that the roof had a 10-year warranty.

Complainants testified that the roof that Respondent installed looks terrible and that other contractors had told them that the roof could not be repaired but would have to be replaced. Complainants submitted photographs of the roof showing areas of that had been pulled up to show an alleged lack of adhesion.

Investigator Allison testified that the roof did not look like what was shown on Complainants’ exhibits when he performed his jobsite inspections. The damage to the roof that was shown in the photographs would have been difficult to miss.

Mr. Michelbrink denied having damaged the roof. He testified that the roof was not stuck down, which is the only reason it could be lifted.

Investigator Allison testified that the Registrar does not perform destructive testing to see what is underneath a surface that a contractor has constructed. Investigator Allison testified that he had assumed that no cant strip was present because of the air gap between the roof and underlayment, which allowed him to press down on the transition area and see how much it moved.

Respondent submitted a photograph that Mr. Alper stated showed the cant strip beneath the transition area between the flat roof and parapet. Investigator Allison agreed that if the cant strip were not present, the photograph would have shown bare wood under the roof.

Investigator Allison acknowledged that it appeared that Respondent had installed a cant strip. Investigator Allison testified that although the roofing on the parapet could be nailed, the manufacturer’s specifications required the transition area to be torched down. Because Respondent had not torched down the area over the transition, Respondent’s work still did not meet the Registrar’s standards.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of Respondent’s prior disciplinary history as shown on the Registrar’s public website. On this date, the website showed that Respondent’s license was placed on finite suspensions as a result of another complaint between November 26, 2014, and November 30, 2014. Although four complaints were closed as resolved/settled/withdrawn, no negative inferences can be drawn from Respondent’s apparent willingness to work with its customers to resolve complaints.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

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

Complainants established that Respondent did not fully comply with the Registrar’s or industry workmanship standards because it failed to torch down the roofing over the cant strip in the transition area between the parapet and the flat roof. Complainants thereby established cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Complainants also established that Respondent failed to fully comply with the Registrar’s directive, thereby establishing cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22).

Complainants did not establish that any other aspects of Respondent’s construction of the roof were deficient in any respect. Respondent established that it has been responsive to Complainants’ concerns. Respondent still must warranty the roof for two years under the Registrar’s statutes and ten years under its contract with Complainants. However, Respondent is not responsible for any damaged that Complainants or others caused to the roof.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, License Nos. B.277891-R and B-1.277890-C of Respondent RGB Restoration and Builders LLC shall be suspended for a period of one (1) business day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Respondent’s license, 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 Respondent tenders payment of any outstanding prior civil penalty.

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 five days from the date of that certification.

Done this day, October 19, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors