ALJDEC decisions subject to certification as final
2018A-1904-CHC-ROC · Registrar of Contractors · 2018-09-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Luis M Carpinteiro,
COMPLAINANT,
v.
Lopez Roofing LLC,
License No. 140050
RESPONDENT.
No. 2018A-1904-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 27, 2018
APPEARANCES: Luis Carpinteiro on his own behalf; Jennifer Maldonado, Esq. for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
_____________________________________________________________________
FINDINGS OF FACT
On July 13, 2018, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on August 27, 2018 at the Office of Administrative Hearing.
Respondent Lopez Roofing LLC, holds license No. 140050 issued by ROC. That license expired on January 1, 2018 and the LLC has been terminated. Frank Matus Lopez was the qualifying party and member of the LLC.
The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint.
Through the Citation, ROC alleges that Lopez Roofing may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Lopez Roofing’s license. The Citation shows that ROC could not determine whether Lopez Roofing has actually committed any of the alleged violations, which is why the matter was set for hearing. The Citation also shows that the Citation itself is not evidence that Lopez Roofing has violated any statute or rule.
In March 2016, Complainant Luis M. Carpinteiro contracted to have Lopez Roofing conduct roofing work at his house. On April 24, 2018, Mr. Carpinteiro filed with ROC his complaint against Lopez Roofing.
In that his complaint, Mr. Carpinteiro alleged that the roof began leaking in August 2016 causing damage to the house. Mr. Carpinteiro also alleged that that there was damage to the chimney from the tear off of the old roof and that flashing had not been replaced.
In response to Mr. Carpinteiro’s complaint, ROC Investigator Gregory Johndrow conducted a jobsite inspection on May 17, 2018. At that inspection, ROC allowed Mr. Carpinteiro to amend his complaint to include: no roof jacks/pipe flashing was installed; no seal on shingles in valley; lifting of shingles; no seal on face nails; and flashing needs to be replaced on front porch.
On May 24, 2018, ROC issued to Lopez Roofing a Directive that required Lopez Roofing to correct by appropriate means:
"on 8/9/16 it started to rain, roof began to leak from 2nd floor which traveled to 1st floor which caused damages to ceilings and walls."
"There were damages also to chimney from tear off that was never repaired"
"Flashings were never replaced"
"Roof Jack" (addendum item and complainants description of no roof jacks/pipe flashing installed)
"No seal on Valley" (addendum item and complainants description of the valley shingles not adhering to the shingles beneath)
"Lifting of shingles"(addendum item and complainants description of the loose / lifting of ridge and field shingles)
"No seal on Face nails" (addendum item)
"Flashing need to be replaced on front porch" (addendum item)
Rcc014 Corrective Work Order1.rtf (in administrative record)
The Directive shows that ROC had determined that any other workmanship violations alleged in Mr. Carpinteiro’s complaint were unsubstantiated.
The Directive required Lopez Roofing to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. June 11, 2018.
Because Lopez Roofing was no longer licensed when the Directive was issued, ROC informed Lopez Roofing that the workmanship violations could only be remedied by paying a properly licensed contractor hired by Mr. Carpinteiro to remedy the deficient workmanship or by reaching a financial settlement with Mr. Carpinteiro.
No repairs were made, and on June 18, 2018, ROC issued to Lopez Roofing the Citation.
Neither party complied with the requirements of Ariz. Admin. Code section R4-9-118 and consequently, no documentary evidence was accepted into evidence, but the Administrative Law Judge informed the parties that he would take notice of Mr. Johndrow’s work product located in the ROC administrative record. Messrs. Carpinteiro, Lopez and Johndrow all testified.
Mr. Carpinteiro testified that he had telephoned Lopez Roofing on August 9, 2016, and informed Mr. Lopez of the leak, and that he had called on two other occasions, but he did not recall on what dates. Mr. Lopez disputed that Mr. Carpinteiro had made any calls and he testified that the first he learned of the allegations was when he received from ROC notification that a complaint had been filed. There is insufficient evidence to show that Mr. Carpinteiro did call Lopez Roofing in August 2016.
Mr. Johndrow testified to the effect that:
During his inspection the roof leaked during a water test and that this water test occurred in the area where there were no roof jacks or flashing on vent pipes, which was an obvious place at which water could enter the house;
He observed voids and/or damaged stucco by the chimney that appeared to have resulted from the roof tear-off;
Flashing near the chimney was damaged and had not been replaced;
There was no sealant used in the valley, which does not meet manufacturer’s specifications;
There were loose and lifting shingles in the field and on the ridge line;
There were nails that did not have any sealant, which does not meet manufacturer’s specifications;
Respondent replaced flashing near the front porch, but the work was not done properly and the flashing that was used did not match the existing flashing.
Mr. Johndrow observed that water was leaking into the house at the two upstairs bathrooms during the water test and that the in downstairs bathroom moisture could be seen.
Mr. Johndrow acknowledged that he had not been on the roof before Lopez Roofing did its work, and so he did not know the condition prior to that time. Similarly, he could not say whether any water damage had occurred in the house prior to Lopez Roofing doing its work.
Mr. Lopez testified that he had not received from Mr. Carpinteiro any bids or proposals to have done the work that ROC ordered Lopez Roofing to perform. He also testified that Mr. Carpinteiro had been unresponsive to Lopez Roofing’s attempts to settle the matter.
Mr. Lopez testified to the effect that the chimney had damage in several areas above the roofline and that these areas may have been the source of any leaks. Although it is possible that these other areas may allow water into the house, there was no evidence adduced to show that water was sprayed that high during the water test.
Regarding the flashing that had not been replaced (Complaint Item 3), Mr. Lopez testified that this was near the chimney and is an “L” shape with a portion embedded in the stucco. Mr. Lopez was of the opinion that this could not be replaced, but the metal was in good shape and they sealed the metal before adding the roofing underlayment.
Mr. Lopez acknowledged that there were no roof jacks or flashing installed around the vent pipes, and that these should have been sealed. He acknowledged that this was a possible source of the leak.
Mr. Lopez did not agree that the use of sealant was necessary in the valley or on the nails (except for those along the edges).
Mr. Lopez did not agree that any shingles were lifting on the roof.
Regarding the flashing near the front porch, Mr. Lopez testified to the effect that an “L” shaped metal is the correct application, but the piece that Lopez Roofing removed was a straight piece. Lopez replaced the piece with a piece of five-by-five L metal, properly sealing the area and using a two-by-four to fill the area.
Mr. Lopez, through his testimony, questioned whether Mr. Johndrow had any special expertise in roofing matters. The only evidence adduced regarding Mr. Johndrow’s qualifications and knowledge was the fact that he is an investigator for ROC.
CONCLUSIONS OF LAW
Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.
“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).
“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).
The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
Ariz. Rev. Stat. section 32-1154(A) provides that
The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:
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3. Violation of any rule adopted by the registrar.
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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. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”
Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).
The preponderance of the evidence shows that Lopez Roofing violated Ariz. Rev. Stat. section 32-1154(A)(3) by failing to include roof jacks/flashing at the pipe penetrations and by failing to properly seal the chimney area.
The preponderance of the evidence does not show that Lopez Roofing committed a workmanship violation by not sealing the valley or the nails. Mr. Johndrow did not testify that these were workmanship issues but rather that these represented deviations from the manufacturer’s specifications, but no specifications were introduced into evidence, and Mr. Lopez provided credible testimony that sealing was not required.
The preponderance of the evidence does not show that the flashing near the chimney should have been replaced. Consequently, it has not been proven that Lopez Roofing’s failure to replace this flashing was a workmanship violation.
Mr. Johndrow provided credible testimony related to his observation of loose and lifting shingles. The preponderance of the evidence shows that this is a workmanship violation by Lopez Roofing.
Although Mr. Johndrow testified that the wrong flashing was used in near the front porch, Mr. Lopez provided credible testimony that Lopez Roofing used the correct flashing and that it was the existing flashing that was improper. Consequently, it has not been proven that Lopez Roofing committed a workmanship violation related to this flashing.
Mr. Lopez provided credible testimony that Mr. Carpinteiro was not responsive to Lopez Roofing’s attempts to resolve the matter after the Directive was issued. This provides a valid justification for Lopez Roofing’s failure to comply with the Directive in the time required work within the time set out in the Directive. Consequently, the preponderance of the evidence does not show that Lopez Roofing violated Ariz. Rev. Stat. section 32-1154(A)(22).
Because Lopez Roofing has violated Ariz. Rev. Stat. section 32-1154(A)(3), ROC has authority to discipline its license, including imposition of a civil penalty.
RECOMMENDED ORDER
IT IS RECOMMENDED that on the effective date of the final Order in this matter Lopez Roofing LLC’s license number 140050 is suspended for seven days.
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 is forty days after the date of that certification.
Done this day, September 7, 2018
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors