ALJDEC decisions subject to certification as final

2018A-84-CHC-ROC · Registrar of Contractors · 2018-05-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gerald George Salitros,

COMPLAINANT,

v.

Cal-Pro Roofing LLC,

License No: 306666

RESPONDENT.

No. 2018A-84-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 14, 2018

APPEARANCES: Gerald George Salitros, Complainant, Antonette Scolaro,

Donna Sarver, Steven Urcino, Jorge Urcino, Jr., Respondent and Qualifying Party, Steven Lawton, Senior Investigator, Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

Respondent, Cal-Pro Roofing LLC (“Cal-Pro”) is the holder of license Number 306666 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 14, 2017, Complainant Gerald George Salitros (“Salitros”) entered into a contract with Cal-Pro to tear off a pre-existing foam roof and re-surface the roof with a rubber roofing product for a pre-existing roof on Salitros’ residence.

On or about January 8, 2017, the Registrar received a Complaint against Cal-Pro from Salitros alleging Cal-Pro performed poor work.

The Registrar assigned the complaint to Investigator Timothy Pennington. On February 13, 2018, Mr. Pennington conducted a formal Job Site Inspection [“JSI”]. Senior Registrar Investigator, Steve Lawton, testified - reviewing the job site notes and the case file of Inspector Pennington – that the JSI notes made observations regarding the claimed assertions of the Complaint and indicated that Mr. Pennington made the following inspection observations:

Complaint Item 1: House Appearance Devalued-Covered eaves & trim of house. Investigator’s Observation: I am Unable to substantiate.

Governing Rule: N/A

Complaint Item 2: Roof not done to code.

Investigator’s Observation: I am Unable to substantiate. I talked to the local building official Chip Hart, He stated the structure was built prior to 2000 and cannot determine if a permit was ever obtained, and the respondent didn’t install the structure per contract.

Governing Rule: N/A

Complaint Item 3: Rubber roof bubbled up and lots of patches.

Investigator’s Observation: Substantiated.

Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship

Complaint Item 4: Ceiling pan broken, loose & sagging – Metal pan split.

Investigator’s Observation: Substantiated.

Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship

Complaint Item 5: Where metal pan is split, rubber roof is sunk down.

Investigator’s Observation: Substantiated.

Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship

Complaint Item 6: House roof eaves covered with rubber roofing, metal strips & screws. Investigator’s Observation: Substantiated.

Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship

Complaint Item 7: Left open spaces behind eaves-18” long.

Investigator’s Observation: I am Unable to substantiate.

Governing Rule: N/A

Complaint Item 8: Lots of structural damage.

Investigator’s Observation: I am Unable to substantiate.

Governing Rule: N/A

Complaint Item 9: The whole roof & ceiling pan has to be replaced.

Investigator’s Observation: I am Unable to substantiate.

Governing Rule: N/A

Complaint Item 10: Damaged rain hat over sliding door.

Investigator’s Observation: Substantiated.

Governing Rule: 32 1154 (A) (3) R4-9-108 poor workmanship.

On February 13, 2018, Investigator Pennington issued a Written Directive to Cal-Pro with a Corrective Work Order [“CWO”] that provided as follows:

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 03/02/18

You are hereby directed to remedy the following violations by the appropriate means:

Rubber roof bubbled up and lots of patches.

Ceiling pan broken, sagging at south end first 4 panels, bent down excessively between the first panel and the second panel.

Where metal pan is split, rubber roof is sunk down.

House roof eaves covered with rubber roofing, metal strips & screws.

Damaged rain hat over sliding door.

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 CWO, Mr. Pennington determined that Cal-Pro failed to correct the items listed in the CWO by the March 2, 2018 deadline specified in the CWO.

On March 6, 2018, the Registrar issued a Citation against Cal-Pro, charging

Charge 1: Possible violations of Arizona Administrative Code Rule 4-9-108, (“Minimum Construction Standards”) and in so doing thereby is alleged to have violated A.R.S. § 32-1154(A)(3), and

Charge 2: Possible violation of A.R.S. § 32-1154(A)(22)

On Cross Examination, Mr. Pennington stated that the roofing inspection noted bubbling was occurring on the rubber resurfacing of the roof. It was his opinion that such bubbling on a mechanically fastened roof such as was applied in this case was below standards for workmanship.

A hearing was held on May 14, 2018 to determine the merits of the Complainant’s Complaint.

Complainant’s witness, Donna Sarver testified that she was present when Cal-Pro workers were on the roof working. She experienced loud pounding and inside the home observed the ceiling moving up and down with “stuff” falling from the ceiling. Mr. Salitros ran outside and caught the attention of the Cal-Pro workers and demanded they stop pounding in order to see what damage they were doing to the ceiling. She said the ceiling had been bowed. She said the workers obtained a ladder and placed a jack under the ceiling’s I-Beam which she said was bent and moved.

She further testified that Cal-Pro had removed the “rain hat” from the area of the roof that covered a sliding door. She observed that once removed, the area where the “rain hat” had been was sunken down allowing rain water to flow off the roof in front of the sliding door resulting in puddling in the area. She said Cal-Pro had pulled the “rain hat” off and threw it into the dumpster.

Complainant Gerald Salitros testified that he believed the ceiling pan was broken and the ceiling was sagging and bent down. Complainant offered Exhibit C-6 identified as the report of an inspector from Purist Home Inspection that was performed prior to the September 20, 2013 closing on the purchase of the Salitro’s residence. This report states:

“Recommend evaluation and repairs by a licensed roofing contractor. Your home inspector has recommended a roofer check all aspects of the roof, inspection photos are not indicative of all potential problems. The roof covering showed signs of blistering at the time of the inspection, this indicates air pockets below the roof covering, which may burst and create a leak path. Recommend contacting a licensed roofer for evaluation and repair. The roof covering showed signs of alligatoring type of cracking at the time of the inspection, recommend contacting a licensed roofer for evaluation and repair.

Also attached to Exhibit C-6 is Complainant’s list of repair items required before closing on his residence’s purchase as follows: “Repair roof on patio - cracks and blisters. Inspect. Repair any issues. Request Licensed and bonded roofer.

Complainant witness Antonette Scolaro testified that she was present on January 26, 2018 when Mr. Salitros inspected the damage to the interior ceiling of the residence and a representative from Cal-Pro. She said she observed that the ceiling’s

I-Beam was bent.

Steven Urcino, testified that he was the person who provided Mr. Salitros the quote for work on this project. He testified that Mr. Salitros wanted approximately 300 square feet of the home’s patio roof be removed and replaced with a foam roof. Mr. Urcino testified that he advised Mr. Salitros that the roof did not need to be removed since, in his opinion, the current roof may be appropriately covered with a double-ply roof instead – which Mr. Urcino recommended be done. Mr. Urcino said Mr. Salitros was adamant that the entire roof be torn off so that Mr. Salitros could examine the underlying lumber and that then, the roof was to be re-surfaced with foam. Mr. Urcino insisted that the roof could be re-roofed with the existing conditions, but Mr. Salitros insisted the roof be torn up and replaced with a foam roof.

Mr. Urcino testified that it is commonly known and not unusual that when a rubber roof is applied using mechanical fasteners, such as is the case with Mr. Salitros’ job, the roof surface will tend to bubble. The pre-existing roof had bubbling. Bubbling is normally caused by water evaporating with the stress of heat and, such bubbling, may permit water to infiltrate the roof. It is for this very reason that this type of roof was not recommended to the Complainant for this job. But, because Mr. Salitros insisted, a rubber roof was applied with mechanical fasteners rather that applying a foam roof.

Mr. Urcino explained that Cal-Pro was not aware of the condition of the underlying of the structure that supported the roof when the job was undertaken. He does not know the cause of the ceiling bowing or the pan splitting.

Mr. Urcino admitted Cal-Pro did not comply with the CWO. He stated that Cal-Pro filed an Answer to the Complaint and then understood that it was not required to comply with the CWO until after Cal-Pro was afforded a hearing.

Administrative notice is taken of Cal-Pro’s previous license record as reflected on the Registrar’s public website on May 31, 2018. Such prior License record reflects that Cal-Pro’s class CR42 dual LLC license number 306666 was first issued on July 29, 2016. There are no Complaints that have resulted in discipline against this contractor.

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 Cal-Pro’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 burden of persuasion, generally, at an administrative hearing falls to the party asserting a claim, right or entitlement, or an Agency seeking to impose a penalty. The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion, in this case Complainant Gerald George Salitros, is more probably correct on the issue(s) in dispute.

The credible evidence presented at hearing established that at the time of the Complaint there were items of Complainant’s project that required repair. Specifically, the rubber roof bubbled up and shows a lot of patches; ceiling pan appears broken and is sagging; where metal pan is split, the rubber roof is sunk down; the roof eaves are covered with rubber roofing, metal strips & screws and a damaged rain hat over sliding door.

By a preponderance, Complainant has failed to prove that the following observed conditions are caused by Respondent’s poor workmanship rather than by pre-existing structural conditions or unknown causes:

Rubber roof bubbled up and lots of patches;

Ceiling pan broken, sagging at south end first 4 panels, bent down.

Ceiling pan broken, loose & sagging – Metal pan split.

It is established by a preponderance of the evidence that the Complainant has met it burden of proof as to the following particulars demonstrating poor workmanship:

Where metal pan is split, rubber roof is sunk down.

Damaged rain hat over sliding door;

House roof eaves covered with rubber roofing, metal strips & screws.

Therefore, Complainant has established, by a preponderance of the evidence, that Cal-Pro 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).

The Respondent has admitted on the record that it did not comply with the CWO. By a preponderance of the evidence it has been established that Cal-Pro violated A.R.S. § 32-1154(A)(22).

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional manner.”

A. R. S. §32-1154(E) provides that the Registrar may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of A. R. S. §32-1154(A)(22).

Considering that Cal-Pro has admitted at hearing that it did not comply with the CWO and considering its stated reason for that failure, the imposition of a $250.00 civil penalty is appropriate.

Upon consideration of all the facts and circumstances presented by this case, the Administrative Law Judge concludes that Cal-Pro’s’ Class CR42 dual LLC license number 306666 should be suspended. However, the suspension should be conditional and Cal-Pro should be given the opportunity to avoid suspension being given the opportunity to correct the items listed in ¶ 5 of the Conclusions of Law hereinabove. In the alternative, Cal-Pro should be provided the opportunity to avoid suspension by entering into a mutually acceptable arrangement with Complainant.

RECOMMENDED ORDER

Based on the foregoing,

IT IS HEREBY RECOMMENDED that commencing on the effective date of the Order entered in this matter, Cal-Pro Roofing LLC,’s’ Class CR42 dual LLC license number 306666 shall be suspended. Cal-Pro Roofing LLC, can avoid suspension if the Registrar receives credible proof that Cal-Pro Roofing LLC, has complied with the following alternative conditions:

Cal-Pro Roofing LLC, has remedied by the appropriate means each of the following:

Where metal pan is split, rubber roof is sunk down.

Damaged rain hat over sliding door;

House roof eaves covered with rubber roofing, metal strips & screws.

OR

2. Cal-Pro Roofing LLC, has entered into a mutually acceptable arrangement with Complainant.

If the Registrar receives credible written proof that Cal-Pro Roofing LLC, has complied with the foregoing conditions on or before the deadline identified above, then the above provided license suspension shall not take place.

IT IS FURTHER RECOMMENDED that on or before the effective date of the final Order in this matter, Cal-Pro Roofing LLC must pay to the Registrar of Contractors in certified funds a civil penalty of $250.00.

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, May 31, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors