ALJDEC decisions subject to certification as final
2017A-978-CHC-ROC · Registrar of Contractors · 2017-09-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Angela Williams,
COMPLAINANT,
v.
Ace Roofing and Remodeling Co LLC,
License No: 223965, 223964
RESPONDENT.
No. 2017A-978-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 13,, 2017
APPEARANCES: Complainant Angela Williams was represented by Gary David Knoeller, Esq. Jeffrey Kollar Qualifying Party, appeared on behalf of Respondent Ace Roofing and Remodeling Co LLC.
ADMINISTRATIVE LAW JUDGE: Suzanne Marwil
_____________________________________________________________________
FINDINGS OF FACT
Ace Roofing and Remodeling Co LLC (Respondent) is the holder of License Nos. 223965 and 223964 issued by the Arizona Registrar of Contractors (Registrar).
Complainant sought out Respondent’s help in ensuring that work done by a previous contractor was corrected such that it could pass inspection by the City of Phoenix. Complainant recalled walking through the residence and discussing what she wanted to be done.
On February 10, 2015, Complainant signed a document that stated in pertinent part as follows:
Objective:
Restore entire dwelling and all applicable phases to compliance with City I County Building Codes and Ordinances and to achieve a 'compliance' certificate and/or building permit(s) compliance(s) for all required phases.
It is also noted that some areas of needed repairs, remodeling, and/or restoration do not require building permits, but the objective is to restore the home to suitable, livable conditions as outlined by normal standards and those outlined by the Homeowner.
Initial Work Detail:
• Change all locks systems to nickel (coloring) and re-key.
• Communicate with City Planner and/or site Inspector to facilitate and achieve compliance for all required permits.
• Evaluate add-on area in back section (all phases).
• Create all sketching and drafting for Phoenix City Planner
• Create and supply all required building (site) plans and related permits.
• Air conditioning and ducting system.
• Electrical system (including panel and utilities hook-up).
• Roof inspection and roof decking (and all related structure).
• Overall structural conditions.
• Hot water heater system.
• Evaluative all phases and give outlined reports of condition and needed restoration with projected costs as they become available.
Although Complainant testified that she thought this document was an estimate and that she thought she would be given a formal contract at a different date once she determined what she could afford, the terms of the document are more akin to a time and materials agreement, inasmuch as it provides that Respondent will be paid $45 per hour along with a 15 percent overhead charge. Complainant paid Respondent a $2,500.00 deposit in accordance with that agreement.
On March 11, 2015, Complainant signed a document that stated in pertinent part as follows:
Scope of Work (extension of Phase I):
Complete dwelling and all related attached structures involving remodel. Restoration and upgrades as noted from Homeowner on February 27 2015 walkthrough[.]
The below described areas below are combined with the overall Objective signed on February 9. 2015 allowing Contractor to restore entire dwelling and all applicable phases to compliance with CityI County building codes and Ordinances and to achieve a ·compliance' certificate and/or building permit(s) compliance(s) for all required phases.
It is also noted that some areas of needed repairs, remodeling, and/or restoration do not require building permits, but the objective is to restore the home to suitable. Livable conditions as outlined by normal standards and those outlined by the Homeowner.
This agreement laid out plans to restore various rooms in the house. Complainant testified that she understood this agreement to be an estimate as with the February 10, 2015 agreement, but it contained the same language suggesting it was a time and materials contract. She gave Respondent another deposit.
Complainant signed a third agreement on March 16, 2015. It contained the following language:
Scope of Work:
Teardown and Rebuild of Interior Hallways. East hallway Ihallway closet area. Common bathroom walls (adjoining and common to east hallway due to water damage and visible mold I mildew) - Phase 5
Discovery:
After completing the rough teardown of drywall and the ducting removal in all soffit areas, the east hallway leading to master bedroom, the common walls that divide the bathrooms and the east hallway have been exposed to continuous water damage from the leaking roof creating the growth of mold in the drywall, insulation, and framing .
The roof deck area directly above shows holes where water has been leaking directly through and in the direct area of the ABS vent pipe from the bathrooms.
The roof sheathing is discolored and displays buckles from the layers of ply's that are separating[.]
Because these areas are hidden and isolated, there is no direct heat or air flow to dry up the moisture therefore it will continue to rot until removed.
It is undetermined the amount of damage that has been evolving, but the indication of some of the removed framing and sheetrock displays a significant amount[.]
The only way to know the full extent of this internal water damage is to remove the visible damage starting at the east hallway top plate (involving the hallway closet and common wall to master bath and continue inward until there are no more signs of damage.
Procedures:
• Remove all contents of east hallway closet including shelving (This may require a new sliding door system due to damage [from removal and it being nonsalvageable] to the fixed door sliding rail assemble)
• Remove any I all fixtures from guest and master bath walls inciud1ng mirrors (as necessary)
• Remove drywall as necessary to locate water damage
• Cut approximately 12· X 12" holes in common bathrooms walls to camera inspect areas between wall studs
• Remove any I all cabinets, countertops, and fixtures as required to remove water damaged materials
• Create a temporary patch to roof system to help prevent any further leakage
• Once all areas are removed, opened and inspected, a report will be written outlining the extent of the damage and needed restoration
• Lab test mold to determine its type.
• Cleanup and remove all project debris.
This agreement contained the same language as the prior agreements.
Complainant and Respondent agree that Respondent did some tear down and demolition work on the project. It is also undisputed that Respondent did not obtain permits for the project. Respondent claims it was told by a City of Phoenix inspector that a permit could not yet be issued while Complainant claims she was told otherwise.
Complainant indicated that the demolition on the project was far more than she anticipated. Respondent noted that it kept making discoveries of problems that required more demolition.
Respondent worked on the project until the end of March 2015 and then asked that Complainant signed a change order relating to subsequent discoveries. Complainant said she did not wish to sign the change order and wanted proof of mold testing so an abatement and remediation company could be hired if appropriate. Complainant noted she revised the change order on two occasions and sent it back to Respondent, but Respondent would simply send it back with the same language.
Around this time, Complainant became ill with a pulmonary embolism and advised Respondent that the project would be put on hold. Respondent submitted evidence that he stayed in touch with Complainant via text and asked her when the project could resume.
The disagreement over the change order occurred toward the end of April 2015. During this time, Kollar also travelled to California for work and to visit family.
Upon his return, he checked in with Complainant via text to see how she was feeling. Via email dated May 27, 2015, Kollar asked about the change order and said he hoped to get back to work before the monsoons.
Complainant did not respond to this email, but did change the locks without notice to Respondent because she had moved some items from another residence and wanted to protect them. She denied locking Respondent out, but said she did not know how to proceed because Respondent insisted on the change order.
On June 18, 2015, after noticing Respondent no longer had access to the property. Respondent wrote a letter to Complainant detailing its efforts to correspond with her regarding continuing the project. The letter concluded as follows:
On June 3, 2015, I noticed that a new security door was installed on the front (south side) and that the lock I installed on the west side gate was changed, and that the west Side garage door entry locks were re-keyed.
I received no prior correspondence of any such work being performed.
Although I can appreciate that your health and medical treatments are the utmost importance and your diagnosis was severe, I was also told that you visited the office to cut checks on a Friday a few weeks ago, so I would expect some effort of communication from you.
In one of my voice mails to you I even suggested you have you daughter contact me with just an update, since you told me she was taking care of you in one of your text message from May 20, 2015.
I need to know your intentions for completing this project and fulfilling your contractual agreements.
If you wish to be released from your contracts, I can calculate your balance due and submit to you an Invoice, and once paid I can release you from all contracts.
If you wish to continue with the project, then we need to discuss this in person
Please respond to me by mail or email within 15 days of the date of this letter.
Complainant acknowledged receiving this letter and that she did not respond to it. Complainant denied receiving any additional correspondence from Respondent.
Respondent submitted letters addressed to Complainant in July and September 2015, stating that Respondent considered the contract terminated and enclosing invoices.
On or about February 23, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project. Complainant alleged she had paid Respondent $32,500.00 and received little to no work in return.
The Registrar assigned the complaint to Investigator Steve Klein. After a jobsite inspection to verify the unfinished condition of the property, Klein issued a written directive to Respondent that 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 provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 12, 2017.
You are hereby directed to remedy the following violations by the appropriate means:
Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, and local building codes and manufacturers installation instructions.
The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.
Following the issuance of the written directive, Respondent did not make efforts to perform the corrective work outlined in the directive prior to the deadline set forth in the directive. Kollar did communicate with Klein, including sending him a letter asking how to comply when the contract had been breached and terminated but made no effort to contact Complainant and perform corrective work. After the deadline in the directive expired, Investigator Klein was notified no corrective work had been performed.
The Registrar issued a Citation against Respondent, charging possible violations of; A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(22).
Klein testified that he knew there were disputes between the parties regarding the scope of their agreement, whether the agreement had been modified verbally, whether Respondent had been given access to do work, and whether the agreement had been terminated. He stated that he did not get involved with these types of disputes and simply sent it for a Citation so these matters could be sorted out in an administrative hearing.
Both Complainant and Kollar testified consistently with the facts detailed above.
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 violations 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 evidence established that Respondent attempted to contact Complainant to restart the work in 2015 following her illness. Respondent’s June 18, 2015 letter expressly invited Complainant to contact Respondent if she wanted further work done on the project and agreeing to provide her an invoice and refund if she did not wish to continue. Therefore, the evidence does not establish that Respondent abandoned the project in violation of A.R.S. § 32-114(A)(1).
Without some underlying violation, the Administrative Law Judge has no basis to find that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).
The dispute in this case appears to be more akin to a money dispute than an abandonment—Complainant claims she did not receive sufficient work for the amount she paid—and that Respondent had not issued her a refund. The Registrar does not get involved with these types of money disputes, which are more properly the subject of a superior court action.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that Complainant’s complaint be dismissed.
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, September 25, 2017.
/s/ Suzanne Marwil
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors