ALJDEC decisions subject to certification as final

2020A-00033-CHC-ROC · Registrar of Contractors · 2020-07-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Richard Vitiello,

COMPLAINANT

Solarm City, LLC,

License No. ROC 318195,

RESPONDENT

No. 2020A-00033-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 15, 2020

APPEARANCES: Complainant Richard Vitiello appeared on his own behalf. Zachary Garshasb appeared on behalf of Respondent Solarm City, LLC. Registrar of Contractors Investigator John Smith appeared as well.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Solarm City, LLC (Respondent) is the holder of License No. 318195 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 8, 2019, Richard Vitiello (Complainant) entered into a contract with Respondent for Respondent to: i) remove and reset 39 solar panels, including the removal of the solar water heater; ii) remove and dispose of 18 squares of flat tile, including the removal of the existing flashing and underlayment; iii) install 18 square feet of flat tile, estimated labor 83 hours, including the installation of 40 pound underlayment; iv) supply 100 square feet of flat tile and roof supplies, including all fasteners, underlayment, and installation hardware accessories; and v) perform interior drywall repair of a 2 feet x 2 feet section of drywall replacement, taping, texturing, and painting to match. See Administrative Record, page 5.

The contract did not contain Respondent’s mailing address, the estimated date of completion of the work, or information concerning Complainant’s right to file a complaint with the Registrar. Id.

On or about December 31, 2019, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the complaint to Investigator John Smith. After a jobsite inspection, Investigator Smith issued a Written Directive to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on February 28, 2020.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, revoked, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item 2: “Damaged Solar panel during construction work...”

This was described to be one solar panel at the lower left corner of the array with shattered glass, several loose panel mounting clips, and several mounting clips re-installed without the springs.

Investigator’s Observation: Verified: All conditions described were present. The solar panel on the lower corner of the array is not secured on the left side due to improperly installed mounting clips, and also shattered glass. Due to the improperly installed mounting clips, this panel is allowed to move and flop in the wind.

Several of the mounting clips are not installed properly and are not securing down the panels. Numerous mounting clip assemblies are missing the springs that are intended to be installed over the shaft of the bolts.

As described in Complaint Item 14, several of these springs are now embedded into the spray foam roof of the patio cover.

. . . .

Complaint Item 3: “Wire around solar panels to obstruct birds is loose it was not loose before the roof work”

Investigator’s Observation: Verified: The wire mesh installed to keep birds from getting below the solar panels is very loose. The fasteners are approximately 6 feet apart. The loose wire mesh has several voids and will not serve its intended purpose of keeping birds from getting below the solar panels.

. . . .

Complaint Item 4: “Unsightly valleys, loose and missing tile”

Investigator’s Observation: Verified: The cutline of the tiles in the valleys are irregular, uneven, and unsightly. There are also several loose and/or missing tiles from the valleys.

. . . .

Complaint Item 5: “Tile is not fastened as per the building code”

Investigator’s Observation: Verified: Industry standard, the International Residential Code, and the Tile Roofing Institute all require the top three rows of tiles, the bottom three rows of tiles to be fastened to the roof deck, and also all tiles within three feet of the edges. The second row of tiles has no fasteners. All tiles should be fastened/secured as required.

. . . .

Complaint Item 6: “Several broken and chipped tiles”

Investigator’s Observation: Verified: There is an excessive amount of chipped, cracked, and broken tiles through the roof. All tiles that are broken, cracked, or that have chips larger than the size of a quarter should be replaced.

. . . .

Complaint Item 7: “Flashing(s) installed incorrectly and are damaged”

Investigator’s Observation: Verified: All metal flashings at roof penetrations are damaged. Several flashings are lifting from the tiles, several flashings are over-exposed, one flashing does not cover or seal a plumbing vent stack, some flashings are not properly rolled over the top edges of the plumbing vent stacks, at least one flashing is smashed/flattened below the solar panels.

. . . .

Complaint Item 8: “Tile installed incorrectly, not properly off set may not have proper exposure”

Investigator’s Observation: Verified: There are several rows of tiles where the vertical seams are not offset. Industry standards for flat tiles to have an approximate 50% offset.

. . . .

Complaint Item 9: “Cut tile installed incorrectly near the solar panels”

Investigator’s Observation: Verified: Some tiles have been cut to fit between full tiles. These cut tiles vary from 2 to 3 inches in width. Industry standard is for cut tiles to be on the ends of rows only; and only full tiles throughout the row.

. . . .

Complaint Item 10: “Improperly flashed penetrations at the solar water heater”

Investigator’s Observation: Verified: There are water pipes penetrating the roof tiles with no plumbing jacks, boots, or metal flashings.

. . . .

Complaint Item 11: “Debris stacked around and electrical junction box”

Investigator’s Observation: Verified: The electrical conduit for the solar panels is not flashed properly. There is no flashing at the underlayment, the flashing is not sealed to the tiles or the conduit, the flashing is being held in place by debris stacked on the roof.

. . . .

Complaint Item 13: “Mortar installed improperly...”

Investigator’s Observation: Verified: Original mortar packs at the ridges were re-used have new mortar added to them. The original mortar is painted; the new mortar is not painted. Industry standard is to replace all mortar packs when re-roofing a tile roof.

. . . .

Complaint Item 14: “Damage to SPF low sloped roof that was not there before the roof work was done.”

Investigator’s Observation: Verified: There are numerous penetrations, breaks, and voids in the spray foam roof at the bottom of the tile roof worked on by the respondent.

There are numerous coil springs penetrating and embedded into the foam roof. These springs are form the solar panel fastening clips removed and re-installed by the respondent.

. . . .

After the deadline in the directive expired, Complainant notified Investigator Smith that none of the corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(12); and A.R.S. § 32-1154(A)(22).

Investigator Smith testified that on July 13, 2020, he conducted a prehearing inspection at which time he noted that none of the required corrective work had been performed.

Investigator Smith testified regarding his observations at the jobsite inspection and his testimony was consistent with the Written Directive. Investigator Smith explained that the re-installation of the solar panels performed by Respondent was performed poorly. Notwithstanding Respondent’s assertion that the solar panels had originally been installed poorly by another contractor, Investigator Smith testified that it was incumbent upon Respondent to re-install the solar panels pursuant to building code and industry standard. Investigator Smith testified that the solar panels as they are currently installed pose a safety hazard because they are not secure and could fall from or blow off of the roof with high winds.

Complainant testified Respondent never advised him that the solar panels had been originally installed poorly, that Respondent accepted the work pursuant to contract, and Respondent should have re-installed the solar panels properly.

Zachary Garshasb, Respondent’s owner, testified that Complainant was aware that the original solar panel installation was performed poorly. Mr. Garshasb further testified that Respondent accepted $4,000.00 less than the original contract amount because Complainant told him he could not afford the full contract price. Mr. Garshasb contended that it was not Respondent’s responsibility to improve the original installation and that such “burden should not be dumped on him.” Mr. Garshasb also contended that some of the issues are attributable to storm damage. Mr. Garshasb admitted responsibility for the poor workmanship delineated in Written Directive Numbers 5, 6, 7, and 11, and to “potential responsibility” for Number 14, and the “back part” of Number 10.

Mr. Garshasb asserted that Respondent could not return to the jobsite because he felt that Complainant would “blame more on him.” Further, Mr. Garshasb explained that Respondent’s “license is gone.”

Administrative notice is taken of Respondent’s prior License record on July 17, 2020. Such prior License record reflects that Respondent’s License No. 318195 was first issued on February 27, 2018, and was revoked on April 23, 2019. Such prior License record also reflects that there is one other open complaint 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 and Respondent admitted that the roof tiles are not fastened according to the building code. Therefore, Complainant established that Respondent departed from or disregarded applicable building codes in violation of A.R.S. § 32-1154(A)(2)(b).

The evidence established that Respondent’s work identified in the written directive was not in conformity with the Registrar’s standards. The solar panels were not properly re-installed and were in fact, a hazard. Respondent admitted deficiencies in the fastening of the tile, the fact that there were broken and chipped tiles, that flashings were installed incorrectly and were damaged, and that there was debris around the jobsite. 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 Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not complete the corrective work following the Written Directive being issued. 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 revoke Respondent’s License No. 318195.

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)(7), 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.

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-137160-45720000Done this day, July 29, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000