ALJDEC decisions subject to certification as final
2018A-1371-CHC-ROC · Registrar of Contractors · 2018-09-04
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Pam Duarte,
COMPLAINANT,
v.
Ray Brothers Construction Inc,
License No:
281811, 244820, 196703
RESPONDENT.
No. 2018A-1371-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 14, 2018, 1:00 P.M.
APPEARANCES: Complainant Pam Duarte appeared on her own behalf; Danny Ray, Qualifying Party, and Clifford Ray, Manager, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Ray Brothers Construction, Inc. (Respondent), is the holder of License Numbers 281811, 244820, and 196703 issued by the Registrar of Contractors (Registrar).
2. On or about March 26, 2018, Pam Duarte (Complainant), filed a Complaint against Respondent with the Registrar alleging poor work in connection with the roofing work performed by Respondent at a residence in Tucson, Arizona.
3. Upon completion of an inspection performed by the Registrar on April 16, 2018, the Registrar issued a Directive, dated April 16, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by May 7, 2018, as follows:
1. "Shingle exposure substandard..." This was described by the complainant's representative to be shingle exposure greater than what the manufacturer's instructions allow.
2. "Shingle fastening substandard..." This was described by the complainant's representative to be nails that were driven in at an angle, nails that are counter sunk, nails that are driven completely through the shingle, nails that are placed too high above the bottom edge of the shingle, and nails that are placed too far away from the vertical edges of the shingles.
3. "Shingle courses substandard..." This was described by the complainant's representative to be rows of shingles that are not reasonably straight across the roof, and shingles that are overlapped instead of just being butted together.
4. "Shingle west valley install substandard..." Shingles at valleys are not installed in accordance with the manufacturer's installation instructions. This includes both front valleys and the two small valleys by the fireplace. The three options available according to the manufacturer are: an open valley, a woven valley, or a cross-cut valley. Additionally one valley of the front gable is overlapped onto the main house roof, the other valley is overlapped onto the gabel roof. The two valleys of the same gable do not match. If the cross-cut valley method is used, the section of roof with higher water run-off should be laid on top of the section with lesser water run-off.
5. "Flashing: vents, boots, jacks substandard (replace w/ new per contract)" This was described by the complainant's representative to be the vents, boots, and jacks not being fastened or sealed down around the bottom edges, exposed and unsealed nails in some areas, missing storm collars on the furnace and water heater chimneys, an old re-used jack on the water heater chimney, an improperly installed cap on the water heater chimney, a broken section of the water heater chimney in the attic, unsealed cracks in the flashing around the fireplace, and unsealed cracks in the flashing around the plumbing vent on the flat roof section.
6. "Rear low slope section not washed and coated (complete per contract)"
7. "All plywood at eaves damaged by nails (replace plywood & paint to match existing)"
4. After a compliance inspection was conducted on May 15, 2018, at which it was observed that corrective work had not been performed or completed, the Registrar then issued a Citation to Respondent, dated May 15, 2018, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for August 14, 2018, at 1:00 P.M. Complainant Pam Duarte testified on her own behalf and presented the testimony of Robert Friedman. Respondent presented the testimony of Danny Ray, Qualifying Party, and Clifford Ray, Manager. John Smith, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 6 and Respondent’s exhibit numbers 1 - 16.
6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that he performed a pre-hearing inspection on August 7, 2018, and observed that no corrective work had been performed.
7. Complainant Pam Duarte testified that Respondent’s roof repair was substandard and was leaking in the attic around one of the jacks. She stated that the only corrective action attempted by Respondent was on May 14, 2018, when a worker showed up at 6:30 P.M. unannounced to paint and when he was asked for identification, the individual refused and left. She stated that Tom Malusa, an individual testified to by Respondent, was an individual she was introduced to that she was told could help her with her roof issues.
8. Robert Friedman, a roofing contractor, testified on behalf of Complainant that a home inspector could point out the substandard items and could affect Complainant’s ability to sell the home. He stated he used to work with Tom Malusa, the individual who initially contacted Respondent.
9. Clifford Ray, Manager of Respondent, testified on behalf of Respondent that in February 2018, an individual by the name of Tom Malusa contacted him and stated that Respondent’s roofing repair for Complainant was substandard and that Responded needed to pay $12,000.00 or Complainant would go to the Registrar. He stated Mr. Malusa told him not to fix the roof and that he heard nothing further until the filing of the subject Complaint. He stated that Marco Garcia, a subcontractor, did the actual work and did corrective work to replace the roof jacks. He also stated Select Adjustors, a public insurance adjustor, had sent someone out to do the painting corrective work. He further testified that Owens Corning was willing to warranty the roof. (Complainant’s Exhibit Nos. 1 , 3).
10. Danny Ray, Qualifying Party of Respondent, testified on behalf of Respondent that since the Directive deadline, a painter was sent out to do corrective work that he claimed was turned away by Complainant. He stated that all roof jacks were replaced after April 13, 2018. He further stated that work with respect to the flat roof had been removed from the original contract. (Respondent’s Exhibit Nos. 9, 10, 14).
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:
3. Violation of any rule adopted by the registrar.
...
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 registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action....
5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”
6. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). The Investigator’s testimony regarding the substandard nature of work listed in Directive Item Nos. 1 – 4 and 7 was unrefuted. Respondent argued that Owens Corning had been willing to warranty the repaired roof but presented no evidence that Owens Corning inspected the roof. Further, even if Owens Corning had been willing to warranty the repaired roof, such a warranty does not necessarily negate a finding that the work was not performed in a professional and workmanlike manner.
7. With respect to Directive Item No. 5, Respondent claimed that it had replaced all roof jacks. The Investigator testified that he observed some jacks that had not been replaced. To the extent that Respondent did not complete corrective action listed in Directive Item No. 5, the Tribunal finds that the uncompleted portion was work that was not performed in a professional and workmanlike manner.
8. With respect to Directive Item No. 6, Respondent claimed that this portion of the work had been removed from the contract because it was not covered by insurance. (Respondent’s Exhibit Nos. 9, 10, 14). Complainant did not refute this testimony. Therefore. The Tribunal finds that the item listed in Directive Item No. 6 was not a violation of A.R.S. § 32-1154(A)(3).
9. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. Respondent did not dispute that all corrective work was completed and presented no evidence to support a finding of a valid justification for Respondent not performing the corrective work.
10. Accordingly, Complainant has established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Ray Brothers Construction, Inc.’s, License Numbers 281811, 244820, and 196703 are suspended for two days.
It is further recommended that the Registrar should require Respondent pay the sum of $250.00 as a civil penalty pursuant to A.R.S. §32-1154(E).
In the event of certification of this 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 the certification.
Done this day, September 4, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors