FINACT2018A-05667CHC-ROC.pdf

2018A-05667-CHC-ROC · Registrar of Contractors · 2019-07-24

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Gary James Johnson, Case No. 2018-05667 COMPLAINANT, Docket No. 2018A-05667-CHC-ROC v. Roofing Technologies LLC, FINAL ADMINISTRATIVE DECISION License No. ROC 313839, AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an

administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the

Registrar must provide written justification setting forth the reasons for the modification or rejection.

REGISTRAR’S ACCEPTANCE

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts

it.

CONCLUSION

Because the Registrar has accepted the administrative law judge’s decision, that decision is the

final administrative decision in this case and becomes effective on September 1, 2019.

Dated July 23, 2019. Registrar of Contractors /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal and Recovery Fund

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Copy mailed via USPS First Class mail July 23, 2019 to: Respondent Roofing Technologies LLC PO Box 6136 Yuma, AZ 85366 Complainant Gary James Johnson 9695 E 35th Pl Yuma, AZ 85365 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar

Office of Administrative Hearings Diane Mihalsky, Administrative Law Judge Case No. 2018-05667 / VE

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 07/11/19 LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gary James Johnson, No. 2018A-05667 CHC-ROC COMPLAINANT, v. ADMINISTRATIVE LAW JUDGE Roofing Technologies LLC, DECISION License No. ROC 313839, RESPONDENT.

HEARING: June 21, 2019, at 1:00 p.m. APPEARANCES: Gary James Johnson (“Complainant”) appeared on his own behalf; Roofing Technologies LLC appeared through Raymon Wolff, its member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________ FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website,1 on June 14, 2017, the Registrar issued License No. ROC 313839 for Specialty Dual CR-42 Roofing to Respondent. Respondent’s member is Raymon Wolff. 2. On November 29, 2018, Complainant filed a complaint with the Registrar, alleging that Respondent had performed poor work on its contract to tear off the roof and reroof Complainant’s manufactured home at 9695 E. 35th Pl., Yuma, Arizona 85365. 3. Complainant attached to his complaint a copy of Respondent’s Proposal and Contract to tear off and reroof Complainant’s manufactured home for $3,500.00. The contract did not apprise Complainant of his right to file a complaint with the Registrar against Respondent for violations of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A). In addition, the contract stated that Respondent would replace

See A.A.C. R4-9-117 (“In any disciplinary proceeding conducted by the registrar, the licensee’s entire license file including the record of prior citations and decisions may be considered by the registrar in making a decision and order in the case.”). Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 07/11/19 LEGAL

the continuous ridge vent with a hip ridge overlay, but did not state that Respondent would replace the existing 11” vent with a 7” or 8” vent. 4. The complaint was assigned to the Registrar’s Investigator Steve Lawton for

investigation. Investigator Lawton performed a jobsite inspection on January 3, 2019.

On January 24, 2019, Investigator Lawton on behalf of the Registrar issued a Directive

that required Respondent to perform certain corrective work on or before February 12,

2019, at 5:00 p.m., in relevant part as follows:

1. Complaint Item 1: The 11” ridge vent installed by home manufacturer was replaced by the Respondent with a 7” ridges vent and did not go end to end of ridge of the roof as the original vent installed by the manufacture of mobile home. 4’ foot on both ends were lacking ridge vent. Investigator’s Observation: It was observed that the ridge vent did not run from end to end of residence and was 4 ft. short on both ends. It was to be installed per manufacture specs.

2. Complaint Item 2: Drip edge is not completed on south end of roof at the ridge. Investigator’s Observation: It is substantiated that the drip edging is not completed at south side of residence at the peak.

3. Complaint Item 3: On 09/30/2018 and 09/31/2018 we had 1 ¾ inch of rain, the interior [vaulted] ceiling leaked from end to end inside. There is water damage and possible mold contamination. Investigator’s Observation: It was substantiated that there was water damage at peak of vaulted ceiling in the residence from end to end of residence. The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action. ....

You may not perform or hire other contractors to perform work that is outside the scope of your license. If any workmanship violations listed above are designated as outside the scope of your license, then you may remedy RECEIVED 07/11/19 LEGAL

those violations only by paying a properly licensed contractor hired by Complainant to correct your deficient workmanship or by reaching a financial settlement with Complainant.

After Complainant informed Investigator Lawton that Respondent had not complied with the directive, Investigator Lawton forwarded the complaint to the Registrar’s Legal Department. 5. On March 18, 2019, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to suspend or revoke the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(12), namely A.R.S. § 32- 1158(A), and 32-1154(A)(22). 6. Mr. Wolff on behalf of Respondent filed a timely written answer to the Citation, setting forth the following narrative: While examining the ridgeline on the mobile home, it was noted that customer had vented ridge caps from the manufacturer that are 11 inches. We informed the customer that if we install the hip and ridge with the 11-inch vent cap, the vent cap would stick out on both sides and would not look aesthetically pleasing. We suggested customer go with a smaller 8-inch ridge cap so that the hip and ridge and vent cap so that everything would be set correctly and look aesthetically pleasing and they agreed.

Unfortunately, we had a storm that brought severe wind and rain. The wind caused the rain to be blown at an angle, and the whole ridgeline got water into it. Mr. and Mrs. Johnson stated they got rain in their house from the vent. When they called me about the leaks, I immediately went out there to cover the ridgeline with tarp. According to the factory, ridge vents are not waterproof nor water resistant. Also, to factory specifications, it is not required on a 40-foot ridgeline to have the vents completely cover the ridge line from end to end. The minimum coverage at that pitch of roof would be feet.

Mr. and Mrs. Johnson complained of leaks, and Mr. Johnson stated he wanted the original vent caps from the factory (11- inch) installed. I ordered the new 11-inch vent caps and I went out on Friday, January 4, 2019, to install them. The RECEIVED 07/11/19 LEGAL

ridge vents were removed, the hip and ridge were removed, and a new 11-inch ridge vent was reinstalled with a standard ridge cap. Installation of the vent, ridge caps and roofing was done to code. I then received a letter from [the Registrar] regarding the leaks that they had received and called Mr. Johnson to ask if I may come down and take a look at them. There were a few areas north and south of the building where there was a small indication of leaks. I scheduled to meet them and offered to Mr. and Mrs. Johnson to do the repairs on the roof or redo the ridge caps. Mrs. Johnson stated she did not want me on the roof ever again. They had an opportunity to get bids to fix the interior damage (3 in total) so that we could come to some agreement. I called him Friday March 29, 2019 to offer to come out and repair the ridgeline. I asked him if he received the 3 quotes for the repair and he stated he only received one quote, and that cost came in far more that what [the] whole roof costs to replace. I told Mr. Johnson that I would pay for only fixing the interior ridgeline damage (texture and paint). At this time there has not been any agreement. From a service perspective, I feel like I went above and beyond to please the client regarding this matter.

7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 8. A hearing was held on June 21, 2019. Complainant submitted twenty-one exhibits, including numerous photographs, and testified on her own behalf. Respondent submitted four exhibits and presented Mr. Wolff’s testimony. Investigator Lawton also testified. ADDITIONAL HEARING EVIDENCE 9. Investigator Lawton testified consistently with his directive. Investigator Lawton testified that Respondent could not perform drywall repairs because such work was not within the scope of its roofing license. Investigator Lawton testified that he had numerous conversations with both parties. On February 8, 2019, and March 4, 2019, Complainant said that he was waiting to hire a contractor to repair the drywall because he was waiting on the results of a mold test. Investigator Lawton testified that, in

RECEIVED 07/11/19 LEGAL

addition, Complainant stated on March 4, 2019, that it was ridiculous to repair the drywall while the roof was still leaking. 10. Mr. Wolff testified consistently with the written answer to the citation that he

filed on Respondent’s behalf. Mr. Wolff showed a text from the national weather

service that showed on September 30, 2018, heavy wind-driven rain of up to 26 knots

with gusts up to 47 knots hit the Yuma area. Mr. Wolff testified that the wind blew rain

into to hip roof vent, which is not designed to be weather tight.

11. In response to Mr. Wolff’s examination, Investigator Lawton testified that,

even if Coravent, the ridge vent manufacturer, stated that it required a minimum ridge

vent of 26’ on a 40’ ridge, he still would have issued the directive because Respondent

replaced the 11” ridge vent with a 7” or 8” ridge vent. Investigator Lawton testified that

if the contract had provided for the replacement, he might have reached a different

conclusion.

12. Mr. Wolff testified that on January 4, 2019, Respondent replaced the 7” or

8” ridge vent with a brand-new 11” ridge vent and caps. Respondent submitted the

December 3, 2018 order detail for the Coravent 11” ridge vent and caps.2

13. Mr. Wolff testified that, when Respondent attempted to comply with the directive, Complainant’s wife informed him that she did not want Respondent on the room of her home. Respondent submitted a signed statement from general contractor Fabian Morales, providing in relevant part as follows: [O]n February 6, 2019, Mr. Wolff and I took a trip to the Johnson’s family located at 9695 E. 35th Pl in Yuma, AZ. When we arrived at their home, I immediately noticed that both of the Johnsons started giving Mr. Wolff a hard time about the roof situation. Mr. Wolff was there and brought me there with the intent to remediate the situation . . . . The Johnsons stated that they did not want Mr. Wolff to fix the problem and they expressed they did not want anyone to address any issues unless the work was previously inspected by a Registrar of Contractors Member.

2 See Respondent’s Exhibit 2. RECEIVED 07/11/19 LEGAL

Based on my experience and knowledge, it became apparent that the Johnsons were no longer looking for a solution to the problem but were actually looking to profit from the situation. The Johnsons also expressed they had paid a visit to their Doctor in order to address problems with allergies they allegedly started experiencing as a direct result of the humidity on their ceiling.3

14. Complainant acknowledged that his wife refused to allow Respondent on the roof to attempt to comply with the directive. Complainant testified that his wife was in poor health and was distressed about the roof leaks and repairs. 15. Complainant acknowledged that the roof has not leaked since September 2018, but testified that the Yuma area has not gotten any significant rain. Complainant testified that he is not satisfied with Respondent’s repairs because he believes that it did not comply with Coravent’s specifications or the Registrar’s standards.4 Complainant requested that the Registrar require Respondent to pay him $1,468.22 to repair the ridge vent. 16. Investigator Lawton testified that, because he is based in Phoenix and Complainant’s manufactured home is in Yuma, he did not perform a prehearing inspection. 17. Complainant submitted the results of a mold test performed by Nicklaus Engineering dated February 16, 2019, that stated that no visible microbial growth was observed and that analytical results did not show any elevated spore counts in the interior air samples when compared to exterior samples.5 Nonetheless, Complainant asked the Registrar to require Respondent to pay him $750.00 for the test. 18. Complainant submitted photographs of the drywall damage caused by the leaks.6 The photographs show damage only in the peak of the vaulted ceiling under the ridge vent. 19. Complainant submitted a bid to repair the damaged drywall in the peak of the vaulted ceiling, as well as a hole in the bedroom wall, and to paint the interior

Respondent’s Exhibit 4. See Complainant’s Exhibits 9, 10, 11, and 12. 5 See Complainant’s Exhibit 13. RECEIVED 07/11/19 LEGAL

ceiling of the building, as well as the master bedroom walls, east wall of the guest room, and the south accent wall of the living room next to the door, in the amount of $2,887.00.7 The bid was not itemized. Complainant requested that the Registrar

require Respondent to pay him this amount.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction.8

2. Complainant bears the burden of proof to establish cause to discipline

Respondent’s contractor’s license by a preponderance of the evidence.9 Respondent

bears the burden to establish affirmative defenses by the same evidentiary standard.10

3. “A preponderance of the evidence is such proof as convinces the trier of fact

that the contention is more probably true than not.”11 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.”12 4. The evidence establishes that Respondent’s contract did not contain within its scope of work that it would replace the 11” factory ridge vent with a 7” or 8” ridge vent to make the hip roof more aesthetically pleasing and did not include the Registrar’s website and telephone number or advice to Complainant of his right to file a complaint with the Registrar for a violation of A.R.S. § 32-1154(A) within the time allowed by A.R.S. § 32-1155(A), as required by A.R.S. § 32-1158(A).13 Grounds See Complainant’s Exhibit 8. 7 See Complainant’s Exhibit 20. See A.R.S. § 32-1154(A). 9 See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, Ariz. 369, 372, 249 P.2d 837 (1952). See A.A.C. R2-19-119(B)(2). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). A.R.S. § 32-1158(B) provides that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved after December 31, 2007 must be in writing and must include the following minimum terms: 1. The name of the contractor and the contractor’s business address and the license number. RECEIVED 07/11/19 LEGAL

therefore exist to suspend or revoke Respondent’s license under A.R.S. § 32- 1154(A)(12).14 5. Construction is not a perfect art and, normally, a homeowner must allow a

contractor to attempt to repair its poor work before the Registrar will suspend or revoke

the contractor’s license. Respondent established that it replaced the 7” or 8” ridge vent

with an 11” factory ridge vent after Complainant filed the complaint but before the

Registrar issued the directive and, when Respondent attempted to address

Complainant’s remaining concerns about the roof during the time allowed by the

directive, Complainant and his wife did not allow Respondent to go on the roof to make

repairs. Under the circumstances, because Respondent established that Complainant

did not allow reasonable access for Respondent to perform repairs, Complainant did

not establish cause to suspend or revoke Respondent’s contractor’s license under

A.R.S. § 32-1154(A)(3),15 namely, A.A.C. R4-9-108,16 or A.R.S. § 32-1154(22)17 based

on deficiencies in the roof.

2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in ten point bold type. . . . A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” RECEIVED 07/11/19 LEGAL

6. With respect to Respondent’s failure to pay a contractor chosen by Complainant to repair the damaged drywall under the roof vent, Complainant refused to provide a bid until after if obtained a mold report. Complainant did not obtain the mold

report until after the deadline on the directive had expired. The mold report was

negative. The bid that Complainant submitted at the hearing included repairs to many

areas that were not damaged by the leak from the ridge vent in September 2018.

7. The legislature has not empowered either the Office of Administrative

Hearings or the Registrar to adjudicate or award money damages.18 The Registrar may

resolve contractual disputes if such resolution in ancillary to its regulatory mission and

may penalize a contractor’s license by ordering payment of restitution if a contractor

cannot remedy a proven statutory violation.19 Restitution may be appropriate when a

contractor cannot perform repairs that are beyond the scope of its license.20 In this

case, Respondent’s inability to pay Complainant’s appropriately licensed contractor to

repair the drywall damaged by the leak is due to Complainant’s desire to inflate his

damages instead of allowing Respondent to expeditiously resolve the complaint.

Therefore, restitution is not appropriate in this administrative forum. Complainant may

seek his damages in a court of competent civil jurisdiction. RECOMMENDED ORDER Based on the foregoing, it is ordered that thirty days after the effective date of the final order in this matter, Respondent Roofing Technologies LLC’s License No. ROC 313839 shall be suspended. It is further ordered that if, on or before 30 days after the effective date of the final order in this matter, Respondent has provided satisfactory written proof to the A.R.S. § 32-1154(A)(22) includes among the grounds to suspend or revoke a contractor’s license, “[f]ailure 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.” (Emphasis added.) See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). See A.R.S. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (Ct. App. 1990). In Sunpower, the Arizona Court of Appeals upheld the Registrar’s power to order a contractor to return to a property owner the cost of a solar heater where, although the contractor had made several attempts to repair the heater, he could not make it provide a habitable degree of heat. See id. RECEIVED 07/11/19 LEGAL

Registrar that it has revised its form proposals and contracts to reflect the terms required by A.R.S. § 32-1158(A), the Registrar shall not suspend Respondent’s license but, instead, shall close Complainant Gary James Johnson’s complaint in Case No.

2018-05667 for denial of access.

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, July 8, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors