ALJDEC decisions subject to certification as final

2017A-5931-CHC-ROC · Registrar of Contractors · 2018-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Charles Alan Linaker Jr,

COMPLAINANT,

v.

J M S Roofing LLC,

License No: 259660

RESPONDENT.

No. 2017A-5931-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 19, 2018

APPEARANCES: Charles Linaker, Complainant, Jesus Serventi, Respondent

and Qualifying Party, Joe Gardner, Respondent employee, Stephan Lawton, Sr. Investigator, Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

Respondent. J M S Roofing LLC, (hereinafter, “JMS”) is the holder of License No: 259660 issued by the Arizona Registrar of Contractors (ROC).

On or about October 24, 2015, Charles Alan Linaker Jr, (Complainant) entered into a contract with Respondent to, among other things, construct a copper roof on Complainant’s newly built home construction.

On or about November 27, 2017, the ROC received a Complaint against Respondent from Complainant alleging Respondent performed poor work in that several of copper drainage scupper boxes on the exterior of the residential project appeared crooked.

The Registrar assigned the Complaint to Investigator Stephan Lawton, Sr. Investigator for the ROC [hereinafter, “Lawton”]. On or about January 22, 2018, the Registrar issued JMS a Written Directive to take appropriate corrective action [the “CWO”]. The CWO provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on February 7, 2018. You are hereby directed to remedy the following violations by the appropriate means:

Copper deco scuppers are not level.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Inspector Lawton conducted a compliance inspection on February 21, 2018. JMS failed to correct the leveling of the copper deco scuppers as was required by the CWO.

On February 22, 2018, the ROC issued a Citation against JMS charging possible violations 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) and 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 ROC).

In accordance with the Notice of Hearing properly issued in this case, a hearing was held on April 19, 2018, the scope of which was to allow an independent Administrative Law Judge to receive evidence in order to determine whether grounds exist to support the charges made in the Citation.

Investigator Lawton testified, consistent with his CWO and accompanying job site notes, that JMS undertook to perform roof work for the Complainant based upon an October 24, 2015 Proposal. An itemization for the work to be performed dated August 9, 2016, (provided to the Complainant by JMS), indicated [among other items of roofing labor and materials] that as part of the work to be performed JMS was to install a “copper package” and a “Trim Package”. Neither the “copper package” nor the “Trim Package” is described in any specific detail. The only itemization for the “copper package” states it included copper, trim and screws. The Trim Package itemization only stated that it included screws. Investigator Lawton testified that it was his conclusion that the “copper package” and “Trim Package” included installation of the copper scuppers and their copper decorative boxes. It was the copper decorative boxes which appeared to be unlevel and was the basis for Mr. Lawton’s poor workmanship determination. Mr. Lawton testified that JMS denied to him that it had installed the copper scuppers or the copper scupper decorative boxes. Mr. Lawton testified that since JMS installed the Complainant’s copper roof, Mr. Lawton can then conclude JMS also installed the copper scuppers and copper decorative boxes. He also testified that this Complaint was re-opened based on e-mails presented with the new Complaint that Mr. Lawton said established JMS had installed the scuppers along with copper facia.

In its December 15, 2017 Answer filed in this case, JMS stated:

[The Complainant] had filed a previous complaint regarding the installation of the scuppers at the named residence. We had contacted the previous investigator and informed that our company had not installed the scuppers. We sent a representative to the residence at that time to get photographs so we could see for ourselves what the problem was. Our representative was denied entry to take photos, and was told if he was there to correct the problem, he would be allowed to do so. That is when I contacted the investigator, Ted Stodder, and advised him about these facts. He never re-contacted me, but when I checked our license online, it showed no open

complaints. The previous complaint was 2017-4231.

Complainant Charles Alan Linaker Jr, testified that he hired JMS to roof his home. He said that along with the bid on his roof, JMS was to have provided a “copper package” and a “trim package. “ He admitted that although the bid referred to the “copper package” and a “Trim Package,” the bid did not break out in detail to help define what labor or materials were offered in the bid. He agreed that he just assumed that the copper scuppers and copper decorative boxes were part of the copper package and trim package. He said that after his first Complaint was closed, he discovered two e-mails from JMS which confirms that JMS was the installer of the copper scuppers and copper decorative boxes

Testifying for the Respondent was the qualifying party and member of JMS, Mr. Jesus Serventi and Joe Gardner, office manager and employee of JMS. Through Mr. Gardner, an exhibit [R-1] was offered. Laying a foundation for the introduction of the exhibit, he testified that he had contacted Advanced Sheet Metal and was able to obtain a June 9, 2016 invoice from Rivera Homes [the builder of Complainant’s home]. Objection was sustained baring admission of Exhibit R-1 for JMS’s failure to disclose the exhibit to the Respondent. The contents of Exhibit R-1 is not considered in this matter.

Mr. Serventi testified that as part of labor and materials for this project, he installed the sheet metal upon which the copper scuppers were to sit. The copper scuppers would extend on top of the sheet metal from the roof through the exterior wall for roof drainage. He said that in order for anyone to apply copper to the sheet metal that he had installed and for anyone to have installed the copper decorative boxes [the specific subject matter of the Complaint], the stucco contractor had to complete its work before the decorative boxes could be fastened to the wall. Mr. Serventi testified JMS installed the sheet metal through which the copper scuppers are inserted, but JMS’s work ended with the sheet metal install. Mr. Serventi testified JMS did not install the copper scuppers or the copper decorative boxes. He said JMS has never installed copper scuppers or decorative boxes for any customers in the past. Mr. Serventi said he could probably surmise who it was that installed the copper scuppers and decorative boxes, but that he does not know by personal knowledge or other evidence who in fact did the copper scupper and copper decorative boxes installation – but he does know that it was not JMS.

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 JMS’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).

The credible evidence presented at hearing established that at the time of the Complaint there were items of Complainant’s project that needed to be completed. Specifically, copper boxes surrounding roof scuppers were not level. However, by a preponderance, there is insufficient credible evidence in this case to prove the identity of the contractor that installed the copper scuppers and decorative copper boxes on this project. It has not been established, by a preponderance of the evidence, that JMS installed the copper scuppers or installed the copper decorative boxes.

Complainant did not prove by a preponderance of the evidence that JMS was the contractor that installed the copper scuppers or the decorative copper scupper boxes at issue in this case.

Complainant has failed to meet its burden of proof that JMS did not perform work 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).

Therefore, Complainant did not, by a preponderance of the evidence, establish JMS violated A.R.S. § 32-1154(A)(22).

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 Charles Alan Linaker Jr.

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 the 7th day of May, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors