ALJDEC decisions subject to certification as final

2019A-00975-CHC-ROC · Registrar of Contractors · 2020-02-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kelly Peterson,

COMPLAINANT

Atlas General LLC,

DBA: Castile Roofing,

ROC License: ROC 277937, 278252,

RESPONDENT

No. 2019A-00975-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 27, 2020

APPEARANCES: Complainant Kelly Peterson appeared on her own behalf.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Atlas General LLC doing business as Castile Roofing (Respondent) is the holder of License No. 277937 and 278252 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 22, 2018, Kelly Peterson (Complainant) signed a contract with Respondent for the installation of a new roof. The total contract price was $9841.96.

On or about February 27, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Lisa Melton. On June 10, 2019, after a jobsite inspection, Investigator Melton 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 June 28, 2019.

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

Complaint Item 1: Roof has nails and staples exposed. The contractor has been attempting to fix multiple times but the problem still [exists] today. We have sent photos of staples glistening in the sun but the contractor has requested we send a detailed list of issues.

Investigator’s Observation: Photos from Inspection show exposed nails and staples. Malarkey Laminate Shingle Installation Instructions (Complainant provided electronically subsequent to Inspection to both Respondent and myself) state: If installed correctly, fasteners should be covered by the overlying EZRidgeTM shingles to come, leaving none exposed. Also stated: The use of staples is not an approved fastening method. (See JSI Photos #3 - #4)

Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

Complaint Item 3: The shingle packaging & the website both state that staples are not acceptable and will void the warranty.

Investigator’s Observation: Photos from Inspection show staples. Malarkey Laminate Shingle Installation Instructions (Complainant provided electronically subsequent to Inspection to both Respondent and myself) state: The use of staples is not an approved fastening method. (See JSI Photos #6)

Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

On or about July 10, 2019, Complainant filed an Addendum to the Complaint.

On or about July 22, 2019, Investigator Melton issued an Amended Directive from the Registrar which provided, in pertinent part, as follows:

You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on August 8, 2019.

. . . .

AMENDED Complaint Item 16: The issue with the patio cover is that it has buckles and rolls that are extended all the way to the open edge. There are photos attached from my prior email to Castile dated June 17 that show the top of the patio and I am attaching some from today that show the rolls extend all the way to the open end of the roof. Under one of the "bumps" you can see that a staple was used to hold the drip strip and is within 1/16" from the edge, that is too close. These should have been nailed. The second photo, when zoomed in, shows multiple areas of concern. Castile roofing has promised previously to make this right but is now stating that because it isn't a directive from the ROC that it will not be taken care of. The original complaint only stated that this patio area had already been replaced multiple times due to poor installation practices and did not include any direct issues.

Investigator’s Observation: Roofing material does not have bubbles. The “buckles and rolls” are typical when two sides of a material with expansion/contraction properties are affixed. Roof seams are not curling but some seams, and the edge of the roof in some places, are not completely sealed. Staple was visible in the “drip strip”. Staples are not approved for edge flashing per manufacturer literature provided by Respondent.

On or about August 12, 2019, Investigator Melton issued a 2nd Amended Directive from the Registrar which provided, in pertinent part, as follows:

At the request of the parties, the Date and time of the Amended Directive has been extended. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on September 4, 2019.

At some point prior to the deadline in the directives, Respondent replaced the roof on Complainant’s home.

After the deadline in the 2nd Amended Directive from the Registrar expired, Investigator Melton conducted a compliance jobsite inspection. On or about November 18, 2019, Investigator Melton issued her Compliance Jobsite Inspection Notes, which provided, in pertinent part, as follows:

Compliance Jobsite General Notes: Complainant requested compliance inspection due to concerns regarding: “It appears that the insulation was affected and we want to insure no mold issues. Additionally, the roof shingles appear to be buckling in various places.”

Compliance Findings: Insulation that was inspected was not wet at the time of inspection. Advised Complainant that Registrar has no jurisdiction over mold. There were shingles which appeared to be somewhat raised, slightly fish mouthing. Respondent’s onsite representative acknowledged the issue. They could not determine the cause. It was decided that the manufacturer would be contacted to perform an inspection.

Malarkey Roofing Products performed an inspection and subsequently provided their opinion (see attached) on October 31, 2019:

“The inspection and review found that the majority of the buckles were caused by butting the shingles too close together. In many cases the shingles ends were pushing up against each other or overlapping. There also appeared to be some buckles, although to a much lesser extent, caused by underlying deformities with the underlayment and/or deck. The shingles were merely reflecting that underlying distortion. There appears to be no manufacturing related issues that would justify a warranty settlement and the claim is considered denied and closed.”

Note: At the time of these notes the Complainant has refused to allow additional access for any further corrections.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

Investigator Melton testified that she recommended the inspection by the manufacturer to provide clarification of the cause of the problem, but that she had no authority to further extend the deadline for corrective work to be done. Investigator Melton also noted that, because the new issues with the roof were the result of the corrective work done by Respondent, new workmanship issues would indicate that Respondent failed to correct the original workmanship issues in an appropriate manner.

Complainant testified that the initial installation of the roof was not properly spaced and was notably incorrect. Complainant stated she merely wished to have a visually appealing roof that was installed properly. Complainant denied that she prevented Respondent from working on the project prior to the deadline expiring given that she worked from home and was always available on the project. Complainant asserted that she had written a check and mailed it to Respondent the total payment on the project, but that it had not yet been cashed by Respondent.

Alfonso Larriva, Managing Partner, testified that Respondent was willing to correct the new issues on the roof, but Complainant was denying Respondent access. Mr. Larriva acknowledged that the issues still existing on the roof were the result of the corrective work that Respondent did to comply with the written directives from the Registrar. Mr. Larriva also argued that Complainant failed to pay the contract in full and was looking for a way to avoid paying the full contract amount. Mr. Larriva denied having received Complainant’s check for payment in full.

Administrative notice is taken of Respondent’s prior License record on February 18, 2020. Such prior License record reflects that Respondent’s License No. 277937 was first issued on March 30, 2012, and is current. Such prior License record also reflects that there was one other open complaint and no prior complaints against Respondent’s license. Such prior License record also reflects that Respondent’s License No. 278252 was first issued on May 3, 2012, and is current. Such prior License record also reflects that there were no open or no prior complaints against Respondent’s license.

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’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that, while Respondent attempted to complete the corrective work following the directives being issued, the attempts to correct the workmanship issues created new workmanship issues. Therefore, Complainant established 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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 277937 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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.

-54864001

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-137160-45720000Done this day, February 18, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000