ALJDEC decisions subject to certification as final

2017A-4289-CHC-ROC · Registrar of Contractors · 2018-04-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Fenton Investment Co. Inc.,

COMPLAINANT,

Rock Roofing LLC,

License No: 160029

RESPONDENT.

No. 2017A-4289-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 6, 2018

APPEARANCES: Steven Fenton, Complainant; Cory Larson, Respondent’s legal counsel; Javiar Valensuala, Respondent, Pedro Erceg; John Smith, ROC Investigator.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

Respondent Rock Roofing LLC, [hereinafter ‘Rock”], is the holder of a dual class CR42 License Number 160029 issued by the Arizona Registrar of Contractors (ROC). Javier Valenzuela is the licensee’s qualifying member.

On or about March 15 , 2016, [according to the Complaint in this matter], Fenton Investment Co. Inc., [hereinafter “Fenton”] entered into a contract with Respondent to resurface a roof on one of Fenton’s buildings that had a history of leaking. The actual written contract was not introduced into evidence and the written contract is not of record in this case.

On August 21, 2017, the ROC received a Complaint against Respondent from Complainant alleging Respondent performed poor work resurfacing the roof of one of Fenton’s buildings with the asserted result that the roof leaks which Complaint contends caused damage to the interior of the subject building’s suites,

The Registrar assigned the complaint to Investigator John Smith. On or about October 11, 2018, after a jobsite inspection, Investigator Smith issued a written Directive to Respondent that provided Respondent must provide the Registrar with satisfactory written proof of compliance with the Directive prior to 5:00 p.m. on October 30, 2017 and directed Respondent to remedy the violations specified by appropriate means. The Directive specified the following Corrective Work Order [hereinafter “CWO”]..

There is damage to ceiling tiles and drywall from roof leaks in the following locations: Suite 2101 there is moisture damage to drywall and ceiling tiles in the northwest corner. Suite 2201 there is moisture damage to drywall and ceiling tiles in the northwest corner. Suite 2202 there is moisture damage to drywall and ceiling tiles in the southwest corner, to ceiling tiles close to the center of the suite. Suite 2202A there is moisture damage to drywall and ceiling tiles along the west wall, there is also damage to ceiling tiles below cracking in the roof, close to the northern most scupper, Suite 3201 there is moisture damage to ceiling tiles below the A/C lines, Suite 3202 there is moisture damage to ceiling tiles below the A/C lines

Cracks, and fabric showing through the roof coating in several areas

Following the issuance of the written directive, Respondent filed notice with the ROC Investigator on October 30, 2018 stating as follows:

This is to notify you in writing the repairs order by the Directive regarding (2) West buildings at 5671 N. Oracle Rd. Tucson, AZ. The following have been completed by Rock Roofing LLC:

Resealed scuppers, AC lines and penetrations at said areas with crack and joint compound. Applied asphalt emulsion in drainage areas and pooling areas. Coated areas with aluminum roof coating.

ROC told both Rock Roofing and Fenton Investments that this needed to be done but as of today Rock Roofing has not heard nor seen estimates for this work to be done. Reminded Fenton Investments thru Bianca on 10/24/2017 and said that the maintenance man was going to take care of it but as of today have heard nothing if done.

Cleaned debris at around the in deck drains as needed. Applied asphalt emulsion at said areas. Coated areas with aluminum roofing coating.

Applied asphalt emulsion and roofing cement to said areas as needed. Touched up areas with aluminum roof coating.

On December 6, 2017, Inspector Smith conducted a compliance inspection of the site, Present was the Respondent’s representative Todd Evans, and two other workers. Mr. Smith’s notes indicate the following:

The respondent stated that the roof work was completed prior to today's inspection, however; they came again this morning to do some more touch ups on the coating. They were working on the coating during the inspection. Neither party brought hoses. Most of the coating was still wet and unable to be walked on or water tested. Compliance Findings: The directive has not been complied with.

Leaks were substantiated along the west wall of the south building, around the center of suite 2201A, approximately 8 to 10’ east of the northern most scupper on the south building, around the A/C lines of suite 3201, and around the A/C lines of suite 3203. Work has been done on the roof to correct these areas, however; the coating was still wet and no hoses were provided to perform a water test.

There is damage to ceiling tiles and drywall from roof leaks in the following locations: Suite 2101 there is moisture damage to drywall and ceiling tiles in the northwest corner. Suite 2201 there is moisture damage to drywall and ceiling tiles in the northwest corner. Suite 2201A there is moisture damage to drywall and ceiling tiles in the southwest corner, to ceiling tiles close to the center of the suite. Suite 2202 there is moisture damage to drywall and ceiling tiles along the west wall, there is also damage to ceiling tiles below cracking in the roof, close to the northern most scupper, Suite 3201 there is moisture damage to ceiling tiles below the A/C lines, Suite 3203 there is moisture damage to ceiling tiles below the A/C lines. This item: not complied with. No corrective work has been done to the interiors.

Water is ponding up to 1” deep by the crickets on the south building. Water is ponding 1” deep on a diagonal section of the roof between the north and south buildings. Water is ponding 1” deep on the south walkway cover of the north building. Work has been done on the roof to correct these areas, however; the coating was still wet and no hoses were provided to perform a water test.

This was described [in the CWO} to be cracks, and fabric showing through the roof coating in several areas through the roof sections of both buildings. This Item: complied with. All areas of cracks and visible fabric have been corrected.

The Registrar issued a Citation against Respondent on December 8, 2017, charging possible violations of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3); violation of A.R.S. § 32-1154(A)(12)(“Failure in any material respect to comply with this chapter.”), specifically, a violation of violation of A.R.S. § 32-1158(B) [failure to include statutory contract language] and a violation of A.R.S. § 32-1154(A)(22) [“Failure to take appropriate corrective action to comply].

A hearing was held on April 6, 2018 to determine the merit of the Citation’s charges. Called to testify were Steven Fenton, Complainant, Javiar Valensuala, Respondent, Pedro Erceg and John Smith, ROC Investigator. All witnesses were sworn upon their oath before testifying..

Mr. Fenton testified that he had hired Rock to resurface several building roofs that were leaking. Mr. Fenton admitted that the roof in question had been leaking prior to Rock’s work commencing and the leaks were the reason Rock was hired. Mr. Fenton provided no testimony or other evidence which demonstrate the source of the asserted leak or leaks specifically attributable to Rock’s workmanship rather than from other sources present or suspected. No evidence of the written contract between the parties was presented.

Javier Valenzuela, Respondent, testified that Rock was hired to coat and resurface the roof at 5675 North Oracle in Tucson, Arizona. Rock was also hired to perform similar work for other of Fenton’s contiguous buildings, but the other buildings were not the subject matter of this Complaint. Mr. Valenzuela testified that as to items 1, 3 and 4 of the CWO, Rock resealed the scuppers, air conditioning lines and other suspected penetration areas with crack and joint compound, applied asphalt emulsion in drainage and pooling areas and coated areas with aluminum roof coating.

As to item 3 of the CWO, Mr. Valenzuela testified that Rock was denied access to the interior portions of the building to inspect for damage, evidence of current leaks or to determine the possible source of any leakage. Mr. Valenzuela stated that when Rock was hired, the building was already suffering sufficient leaking for Fenton to contact Rock and engage Rock’s services. He stated that on at least ten to fifteen occasions appointments were made with Fenton to inspect the interiors of the building, but Fenton failed to show up for the appointments preventing Rock’s inspection of the locked building and its suites for leaks or for damage.

Referring to photograph exhibits attached to the Respondent’s Disclosure Statement, Mr. Valenzuela testified that there are numerous rooftop locations which were primary suspects for water access into the building that are unrelated to Rock’s scope of work or workmanship:

Exhibit 1 - A wooden beam with a gap between the stucco would allow water to enter the building.

Exhibit 3 – An electrical outlet with conduit embedded into stucco on a parfait wall would allow water to enter the building.

Exhibit 4 - An electrical outlet with conduit embedded into stucco on a parfait wall would allow water to enter the building.

Exhibit 6 – metal trim exposes a gap where the stucco meets the wood would allow water to enter the building.

Exhibit 7 – Flat roof area with an air conditioner unit near stucco wall with power units penetrating the stucco would allow water to enter the building.

Exhibit 8 – Cooler unit on roof with two power units penetrating the stucco would allow water to enter the building.

Exhibit 9 – same as f) hereinabove.

Mr. Valenzuela stated that had Rock been allowed the opportunity to gain access to the interior of the building, the likely site of leaking, if any, could have been located and leakage stopped. However, Mr. Valenzuela said that access to inspect or work on the interior was denied.

Pedro Erceg was called by the Respondent. Mr. Erceg is an employee of Rock. Mr. Erceg testified that he was directed by Rock to inspect the building in question to see what, if anything, needed to be done. He stated the he went to the location after confirming an appointment by e-mail and telephone calls on six or more occasions, but no one showed up for the appointments. He said he could not get inside the building to confirm leaking, damage or to attempt to run down the source water leakage, if any.

The ROC Investigator John Smith testified consistent with his findings detailed in the October 11, 2018 CWO and his December 6, 2017 compliance inspection notes. [See ¶ 4 and 6 hereinabove]. He testified that although the interior work on this project was beyond the scope of employment of Rock, damage to the interior of Fenton’s building from water leakage was the responsibility of Rock.

At the hearing, Mr. Smith supplemented the findings contained in his in his CWO. He testified that he conducted a pre-hearing compliance inspection on April 5, 2018. No photos were taken at this inspection. Mr. Smith stated that because there was no access provided to the building interiors for inspection at this time and because, again, no hoses were provided to perform a water test, the only item from the CWO that could be evaluated during this inspection is item number 4. Item number 4 was found to be in compliance with the CWO during the compliance inspection. No documentary evidence was introduced or testimony provided of the contract between Rock and Fenton.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on April 25, 2018. Such prior License record reflects that Respondent’s License No. 256686 was first issued on February 2, 2001 and is in a current active status with no disciplinary action noted of record for Rock.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

No evidence presented substantiates, by a preponderance, that any damage to interior ceiling tiles and drywall from roof leaks are attributable to or caused by the Respondent or by poor workmanship of the Respondent.

The evidence established by a preponderance that leaks were substantiated along the west wall of the south building, around the center of suite 2201A, approximately 8 to 10’ east of the northern most scupper on the south building, around the A/C lines of suite 3201, and around the A/C lines of suite 3203; that water is ponding up to 1” deep by the crickets on the south building; water is ponding 1” deep on a diagonal section of the roof between the north and south buildings; water is ponding 1” deep on the south walkway cover of the north building and there were cracks and fabric showing through the roof coating in several areas.

Therefore, Complainant has established by a preponderance of the evidence that Respondent did not perform its work on this roof resurfacing project 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).

Rock’s October 30, 2018 notice of compliance with the CWO was timely filed within the time period specified by the CWO. Pursuant to the October 30, 2018 notice of compliance:

Rock had timely responded to the CWO item number one by resealing scuppers, AC lines and penetrations areas with crack and joint compound; applied asphalt emulsion in drainage areas and pooling areas and Coated areas with aluminum roof coating.

Rock had timely responded to the CWO item number 3 by cleaning debris at around the in deck drains as needed, applied asphalt emulsion and coated areas with aluminum roofing coating.

Rock had timely responded to the CWO item number 4 by applying asphalt emulsion and roofing cement and touched up areas with aluminum roof coating.

Mr. Smith’s December 6, 2017, compliance inspection was conducted without water testing the roof for leakage because no hose was supplied to conduct a test. Moreover, by a preponderance of the evidence, it is demonstrated that several other potential sources of water penetration existed at the time of the inspection but were not ruled out as the source of water leakage by Mr. Smith.

Because there

a. was no water testing attempted on this roof at either compliance inspection;

b. there are other roof sites identified that may reasonably be expected to allow water to penetrate into the building interior; and

c. there is no evidence to support whether leaking damage was caused by previous roof leaks or by Rock’s workmanship,

Mr. Smith’s December 6, 2017 findings of non-compliance in item 1, 3 and 4 are not supported by a preponderance of the evidence.

Similarly, Mr. Smith’s April 4, 2018 Pre-hearing compliance inspection was conducted without performing any water testing of the roof for leakage because no hoses were provided and there was no access provided to the building interiors for inspection. Thus, the April 4, 2018 Pre-hearing inspection provides no new evidentiary support for non-compliance.

On at least six or more occasions it is found, by a preponderance of the evidence, that Respondent was denied access to the interior of the project’s premises to inspect, diagnose or repair damage to interior ceiling tiles and drywall. Thus, as to CWO item number 3, the Respondent has a valid justification for non-compliance with item 3 of the CWO.

Complainant has failed to meet its burden, by a preponderance, to prove Respondent violated A.R.S. § 32-1154(A)(22).

No evidence was presented on the issue of whether Respondent’s contract with the Complainant failed to meet the statutory requirements of A.R.S. § 32-1158(B). Therefore, Complainant has failed to meet its burden of proof to show Respondent violated A.R.S. § 32-1158(B).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Fenton Investment Co. Inc.

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, April 25, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors