ALJDEC decisions subject to certification as final

2017A-3689-CHC-ROC · Registrar of Contractors · 2017-11-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Travis Justin Bush,

COMPLAINANT,

v.

T and S Roofing LLC,

License Nos. CR42.272850-D and

R-62.305503-R,

RESPONDENT.

No. 2017A-3689-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 22, 2017, at 9:00 a.m.

APPEARANCES: Travis Justin Bush (“Complainant”) appeared on his own behalf; T and S Roofing LLC (“Respondent”) appeared through Timothy Allen Worth, Sr., its qualifying party/member (“Mr. Bush, Sr.”).

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about June 24, 2011, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR42.272850-D for dual roofing to Respondent. On or about June 3, 2016, the Registrar issued License No. R-62.305503-R for residential minor home improvements to Respondent.

On or about July 19, 2017, Complainant filed a complaint with the Registrar alleging that Respondent had performed six instances of poor workmanship on its contract to replace the roof on Complainant’s vacation house at 1148 N. 43rd Dr., Show Low, Arizona 85901. According to the complaint, Respondent had started work on June 12, 2017, and had stopped work on June 16, 2017.

The Registrar assigned the complaint to its Investigator, Chris Allison, for investigation. On or about August 17, 2017, Investigator Allison performed a jobsite inspection.

On August 23, 2017, Investigator Allison issued a Directive, requiring Respondent to correct by appropriate means all six alleged deficiencies, in relevant part as follows:

Item 1 – 1x2 Trim/Fascia

1x2 trim is not primered as specified in contract item #2. Correct by appropriate means.

Item 2 – 1x2 Trim/Fascia

A section of 1x2 trim is missing on rear of home. Correct by appropriate means.

Item 3 – Vents/pipe Jacks

Vents and pipe jacks are not new as specified in contract item #3. Correct by appropriate means.

Item 4 – Drip Edge

Not all drip edge was replaced and new as specified in contract item #3. Correct by appropriate means.

Item 5 – Fascia Rear of Home

Fascia on rear of home was not replaced as specified in contract. Correct by appropriate means.

Item 6 – Lifted shingles

Some shingles are lifted due to nail sticking up. Correct by appropriate means.

The deadline on the Directive for Respondent to correct its work was on or before 5:00 p.m. on September 10, 2017.

After Respondent did not comply with the August 23, 2017 Directive. Investigator Allison sent the complaint to the Registrar’s Legal Department.

On September 11, 2017, the Registrar issued a Citation that charged cause to suspend or revoke Respondent’s license under A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

Respondent filed a written answer to the Citation, denying any statutory violations and affirmatively alleging that although on September 8, 2017, Respondent had attempted to comply with the August 23, 2017 Directive, Complainant had refused to allow Respondent to perform any work because he disagreed with some of the repairs that Respondent proposed, in relevant part as follows:

[Respondent] requested to meet up with [Complainant] in order to discuss the solutions to the issues he was concerned with. On September 8th 2017 at 9 a.m. we discussed how we could fix a few of the issues he was concerned with such as the drip edge, applying primer to the 1x2 Trim/Fascia, and the roof jacks. The complaint with the drip edge not being new is an issue we do not agree with because the contract states it would be replaced if needed. We told him we would primer the 1x2 trim/fascia which he refused unless they were completely replaced. We also advised him that we would not ruin the structural integrity of the new roofing system just to replace two vents that are still in good shape. The complainant was not happy and refused all services.

The Registrar referred the complaint to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. An evidentiary hearing was held via videoconference from the Registrar’s Flagstaff office on November 22, 2017. Complainant testified, submitted seven exhibits, and presented the testimony of his wife, Michelle Bush, and father, Ted Bush. Respondent’s qualifying party/member, Mr. Worth, Sr., testified and presented the testimony of his son, Timothy Allen Worth, Jr., Respondent’s other member (“Mr. Worth, Jr.”). Investigator Allison also testified.

Additional Hearing Evidence

On or about May 27, 2017, Respondent submitted a bid to substantially replace the roof on Complainant’s vacation home that provided that Respondent would perform certain roofing work for a contract price of $5,400.00, in relevant part was follows:

To remove existing roof haul away all loose debris.

Replace any wood if needed up to 5 sheets free then put on 1x2 trim on fascia [boards] with primer on them.

Replace vents, pipe jacks, and valley flashing with new, 2x2 drip edge.

. . . .

(5) Then 30 year architectural shingles Owen’s Corning [illegible]/ 20 mph.

Roofing includes shed in rear and fascia Boards in rear . . . .

The proposal became the parties’ contract when Complainant accepted it.

General Provision No. 4 on the back of the contract provided that Respondent “shall not be liable for any delay due to circumstances beyond its control including acts of God, equipment failure, [and] unavailability of material.”

General Provision No. 8 provided that “[a]ll changes orders, and or additional work shall be in writing and signed by both Owner and [Respondent].” Neither party submitted any written change orders.

The parties agreed that Respondent installed a different kind of shingle than what the parties’ contract specified because the type of shingle that Complainant had selected was not available in the Show Low area. Complainant agreed that his wife orally agreed to the change.

Mr. Worth, Sr. testified that because pre-primered 1x2 trim and new roof jacks and vents were not available in the Show Low area, Respondent installed trim that was not primered and re-used existing roof jacks and/or vents. Mr. Worth, Sr. testified that he told Mrs. Bush that because these items were not available, Respondent would need more time to secure the items or would need to install substitutes. Mr. Worth, Sr. testified that Mrs. Bush told Respondent to do what it needed to more quickly complete the project.

Complainant and Mrs. Bush both denied that Respondent ever told them that it would install 1x2 trim that was not primered at the factory or re-install the existing roof jacks and vents because these items were not available in the Show Low area. Complainant and Mrs. Bush denied that they had ever approved these changes.

The parties agreed that Respondent scheduled September 8, 2017, as the date on which it would perform repairs to comply with the August 23, 2017 Directive. Complainant testified that Mr. Worth, Sr. arrived at the jobsite and proposed to apply primer to the 1x2 trim and to the roof jacks and vents. Complainant testified that because he felt that Respondent should replace all the trim that was not primered at the factory and replace all the roof jacks and vents, he did not allow Respondent on site to perform any repairs. Complainant testified that he did not see the point of partial repairs. Mr. Worth, Jr. testified that although he tried to reason with Complainant, Complainant refused all repairs.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears 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.”

The contract required Respondent to install 1x2 trim “with primer on them.” The contract did not specify whether the primer must be applied at the factory or in the field. Complainant did not submit any evidence that trim “with primer on them” is a term of art in the construction industry that is understood to mean primer applied during the manufacturing process. Therefore, Complainant did not establish that the parties’ contract required Respondent to install trim that was primered during the manufacturing process or that Respondent’s failure to initially install such trim potentially establishes cause to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(2).

The contract required Respondent to “[r]eplace vents [and] pipe jacks,” all 2x2 drip edge, and all fascia on the rear of the home. Complainant and Mrs. Bush both testified that they did not agree that Respondent could re-use existing vents, pipe jacks, and drip edge or leave existing fascia on the rear of the home. Respondent did not submit a written, signed change order that it could re-use existing vents and pipe jacks because these new materials were not available in Show Low. Therefore, Complainant potentially established cause to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(2) based in Respondent’s failure to install new vents, pipe jacks, drip edge, and fascia on the rear of the home.

Investigator Allison testified that the workmanship that the August 23, 2017 Directive required Respondent to correct, including the missing 1x2 trim at the rear of the home and the shingles that were lifting due to nails sticking up, did not comply with the Registrar’s workmanship standards. Therefore, Complainant potentially established cause to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Because construction is not a perfect art, contractors generally must be afforded at least one opportunity to correct their deficient work before their licenses may be suspended or revoked. Respondent established that Complainant refused to provide reasonable access to allow Respondent to attempt to comply with the August 23, 2017 Directive. If Complainant had allowed reasonable access and subsequently requested that Investigator Allison perform a compliance inspection, Investigator Allison may have concluded that some or all of Respondent’s repairs did not comply with the Registrar’s workmanship standards. However, on this record, such a conclusion would be based on little more than speculation. Therefore, Complainant did not establish case to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(22).

Under the circumstances, it is appropriate to close the complaint for denial of reasonable access. Complainant may attempt to establish his damages in a civil action filed in a judicial forum.

RECOMMENDED ORDER

Based on the foregoing, it is ordered that on the effective date of the final order in this matter, Complainant Travis Justin Bush’s complaint in Case No. 2017-3689 against Respondent T and S Roofing LLC’s License Nos. CR42.272850-D and R-62.305503-R shall be closed based on denial of access to perform repairs to comply with the Registrar’s Directive.

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, November 28, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors