ALJDEC decisions subject to certification as final

2017A-3686-CHC-ROC · Registrar of Contractors · 2018-02-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William Gilday,

COMPLAINANT,

v.

Gregory David DiMatteo dba,

D & L Commercial Roofing Southwest,

License No: 300036

RESPONDENT.

No. 2017A-3686-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 16, 2018, at 8:30 a.m.

APPEARANCES: William Gilday (“Mr. Gilday” or “Complainant”); Brenda Gilday (“Mrs. Gilday”); Paul Mittelstadt (“Mr. Mittelstadt” attorney for Complainant); Gregory DiMatteo (“Mr. DiMatteo” representative for Gregory David DiMatteo dba, D & L Commercial Roofing Southwest “Respondent”); and Mike Crow (“Investigator Crow” for the Registrar of Contractors “Registrar” or “ROC”).

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. Testimony and evidence were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

Respondent is the holder of Arizona Contractor License No. CR42.300036-D issued on July 14, 2015 by the Registrar for roofing. Gregory David DiMatteo is the qualifying party.

On or about July 19, 2017, William Gilday, Complainant submitted a Complaint with the Registrar alleging against Respondent 10 complaint of items.

Complainant stated he contracted with Respondent for $13,900.00 for roof work to be performed at the residential address of 1544 East Cherry Lynn Drive, Phoenix, Arizona 85013. Complainant paid $6,900.00 of the $13,900.00 contract price.

Work set forth in Respondent’s proposal dated May 23, 2017, included roof repairs at the residential address as follows: (1) remove and dispose of existing two layers—wood shingles and asphalt shingles; (2) remove and replace dry rot or water damaged wood around perimeter; (3) install 2” x 6” fascia around perimeter; (4) remove existing chimney stack down to below roof level (homeowner to keep existing block); (5) install 1⁄2 inch sheeting throughout main home and rear building; (6) install one layer synthetic underlayment throughout; (7) install new pipe and vent flashing . . . install flashing and counter flashing @ A/C unit . . . install attic vents . . .install valley metal at detail; (8) install 30 yr. dementional [sic] shingles throughout . . .color to be selected by homeowner; (9) install ridge detail to match color of shingles (10) seal and paint all vents and pipes; and (11) detail . . . clean up and dispose of all trash and debris generated by above described scope of work.

Investigator Michael Scanlon (“Investigator Scanlon”) was assigned to investigate the Complaint, and performed a Jobsite Inspection on August 14, 2017. Complainant and a representative for respondent were present. Photographs were taken by Investigator Scanlon and uploaded to the evidence locker.

Investigator Scanlon substantiated and observed three (3) of the ten (10) complained of workmanship issues as follows: Item No. 1: I observed the old roof was off, roofing paper was installed on the 2 structures, and the roof was stocked with roofing material but the roof is not complete; Item No. 6: I observed that the porch overhang had been damaged. Daniel (respondent) said that they were going to fix the porch over hang; and Item No. 10: I did observe that there where no vent flashing on some of the sewer vents on both structure.

On August 15, 2017, a Directive was issued to Respondent with a completion date of September 1, 2017, at 5:00 PM, to remedy the following by appropriate means: “Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.”

A warning letter was also sent on August 15, 2017, notifying Respondent that it was found they may be operating beyond the scope of their CR42 license.

In addition, on this day, a letter was sent to the Phoenix Planning and Development Department stating, “We have reason to believe that required building permit(s) were not obtained for a construction project located at: 1544 E Cheery Lynn Rd, Phoenix, Arizona 85014.”

Investigator Scanlon performed a Compliance Inspection on September 7, 2017. Both Complainant and Respondent were present. Photographs were taken and uploaded to the Registrar file.

Investigator noted in his Compliance inspection, “Overhang on front porch has been removed. Nothing has been done to the roof. No repairs or completion of project per contract. The roof did not have tarps on both structures”.

On September 8, 2017, 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 or about September 19, 2017, stating, in part, “The worst area was in the kitchen area which after we were outside he informed me that he had been on the roof and cut a hole in our tarp (without informing us) around a plumbing vent pipe. The leak problem in this area was a direct result from this hole being cut. Mr. Gilday then took me over to the back building which was once a carriage house. When inside there were men in their gutting the sheetrock walls and ceiling looking for moisture. I personally saw them cutting out sheetrock and stated that looks very dry what are you doing. They said they had moisture meters as these men were a restoration company. Three things here this old carriage house sits on a slab and someone at one time or another took out barn doors and installed wood French doors. In monsoons a slab floor such as this will register moisture. Second the floors were also removed; third we were never given notice or an opportunity to look at alleged damages.”

A Notice of Hearing was sent to the parties and an evidentiary hearing was held on January 16, 2018, before an Administrative Law Judge held at the Office of Administrative Hearings.

HEARING EVIDENCE

Complainant’s Counsel provided an Opening Statement to which he stated Complainant contracted with Respondent to perform work on its’ roof, and that because of poor workmanship, Respondent should be disciplined.

Respondent argued that the roof is a steep pitched roof and that at all times the roof was adequately covered to prevent any damage or leakage.

Investigator Crow testified in narrative format as to the Registrar’s involvement in this matter. He stated he was not responsible for the initial jobsite or compliance inspections and that Investigator Scanlon was responsible for sending the matter to legal after conducting a compliance inspection.

The Respondent questioned Investigator Crow regarding preventive measures and responsibility for events that are an act of God such as a monsoon, to which the Investigator replied that failure to take preventative measures falls below workmanship standards because a contractor would ensure the tarp was laid to stay dry in anticipation of weather. Investigator Crow also testified that the red tape used to seal underlayment, while temporary, was not adequate.

Investigator Crow’s testimony is found to be credible.

Mrs. Gilday stated that around May 23, 2017, she and her husband obtained three (3) bids online and selected Respondent for hire. Respondent was paid $6,900.00 on July 5, 2017, and began work on the roof. On July 15, 2017, there was a monsoon rain and wind and a majority of the tarp blew off leaving the roof exposed. Water seeped in and dripped into the main house.

Mrs. Gilday testified that they were out of town and their daughter who was home at this time conducted them immediately. She instructed her daughter to call the 24/7 emergency number for the roofing contractor (Respondent) to which there was no call back until morning.

Exhibits C1 through C4 were entered into evidence of the communications between Complainant and Respondent.

On July 23, 2017, Mrs. Gilday emailed Respondent stating they were reassured by Respondent prior to the rains that the tarps were water tight and there would be nothing to worry about. The emails also stated that they were told the Respondent was close by and would check on things if there was rain. On July 24, 2017, Mrs. Gilday received an email from Steve Harris, representative for Respondent stating they stopped by to evaluate cover, and that were small leaks they were not made aware of and that a third party was there to adjust tarps.

Respondent asked Mrs. Gilday who cut out the tarp over the vent pipe and whether her husband was responsible for that to which she replied he is not skilled in that trade and never went up there. Her husband only went in the attic to place buckets to catch the water leaking into the attic.

Mr. Gilday was also questioned by Respondent on whether he was up on the roof to which he replied, no. Mr. Gilday testified that because the shingles were left to lay on the roof for more than 90 days and the roof was left exposed, they had to hire another contractor as they lost confidence in Respondent to complete the job.

Respondent testified he has been in the roofing industry for 40 years. He also stated the front porch already had a broken beam. Complainant asked Respondent regarding the type of shingle purchased for use on the roof to which the Respondent replied that the shingles are sold locally for installation. Respondent also asserted that it was not negligent and made all attempts to protect and secure the roof.

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 received from Investigator Crow established Respondent performed substandard work, specifically, the failure to adequately seal and tarp the rooftop during monsoon season while undergoing a project. Thus, Complainant established Respondent’s work 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. Because of the emergent nature of the roof leaking, Complainant was faced with expediting its remedies to secure the roof and seal off the leaks.

The preponderance of the evidence established that Respondent failed to provide adequate seal and tarp on the roof of both structures. 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 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

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, License No. C-42. 300036-D of Gregory David DiMatteo dba,

D & L Commercial Roofing Southwest shall be suspended for a period of three (3) calendar days.

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 final order, the Registrar shall 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 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, February 5, 2018.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors