ALJDEC decisions subject to certification as final

2020A-01122-CHC-ROC · Registrar of Contractors · 2020-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brian Bettini,

COMPLAINANT

Stell Roofing, LLC,

License No. ROC 277061,

RESPONDENT

No. 2020A-01122-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 12, 2020

APPEARANCES: Complainant Brian Bettini appeared on his own behalf. Daniel Esparza, Esq. represented Respondent Stell Roofing, LLC. Arizona Registrar of Contractors Investigator Christopher Fultz was present. Respondent’s witnesses Michael Stell, Regan Anderson, Gary Watson, and Vincent Taylor, Jr. were present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Stell Roofing, LLC (Respondent) is the holder of License No. 277061 issued by the Arizona Registrar of Contractors (Registrar).

On or about July 12, 2017, Brian Bettini (Complainant) contracted with Respondent for the installation of a new roof. The total contract price was $51,450.00. Pursuant to the contract terms, the scope of the work was as follows:

Tear off & haul away the entire roof

Install a 75# fiberglass base sheet - mechanically fastened w/1” ring shank simplex nails

Envelope all metal with modified

Install all new 18x18 box vents (33 total)

Install all new 26 gauge metal flashings

Install a Zero Maintenance 4.5 mil modified torch-down roof system

Install 1900’ of new wall kickers

Seal all penetrations & roof jacks w/acrylic & Tie Tex & paint to match

Re-flash walls where necessary w/new #1 counter flashing

Total jobsite clean-up left free of all roof related debris

On or about March 5, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project, specifically that Respondent damaged the roof drains resulting in interior water damage.

The Registrar assigned the Complaint to Investigator Christopher Fultz. On April 20, 2020, Investigator Fultz conducted a jobsite inspection. Investigator Fultz’s jobsite inspection notes state the following:

Jobsite General Notes:

JSI photos were taken with my Cell phone. JSI audio was recorded with my Olympus Digital Voice Recorder. Refer to Compliance JSI photos for reference. Photos and recordings have been uploaded to the case file.

On 04/20/2020 at about 1230 hours, I conducted a jobsite inspection at the home of Brian Bettini reference his allegations against Stell Roofing LLC. No one from Stell came to represent the company. It appears they went “inactive” with the ROC on 3/12/2019.

I spoke with Brian and he stated that he hired Stell in June 0f 2017 to apply a torch down roof. Almost rigght after the install, he began having issues with the drians ion his roof and flooding. Stell had come out numerous times to try and fix the issue with the last time being 2/24/2019. The walls were currently open at each roof drain and there was damage in every one of those locations. Please see attached pictures.

Since Stell is inactive, I will forward this case to the legal department for review of citations against the poor workmanship and abanodonment.

Compliance Item: 1 - Stell Roofing was hired to install a replacement roof on our home. While installing the roof, they damaged the roof drains, resulting in interior water damage.

Investigator’s Observation: There is extensive interior damage resulting in the damage to the roof drains. it appears to be a drain failure at every location on the roof.

Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in

accordance with professional industry standards.

A.R.S. 32-1154 (A) (1), Abandonment of a contract or refusal to perform

after submitting a bid on work without legal excuse for the

abandonment or refusal.

(Errors and Emphasis in original.)

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

Investigator Fultz testified that although Complainant and Respondent contracted in 2017 and the roof installation was performed in 2017, Respondent performed additional work to the roof through July 24, 2019. Therefore, Respondent performed work on the roof within two years of the filing of the Complaint, thereby subjecting Respondent’s work on the project to the Registrar’s jurisdiction. Investigator Fultz explained that Complainant relayed to him that he and Respondent had “great contact” and Respondent attempted repairs on “numerous” occasions. Investigator Fultz testified that every location on the roof that had connections to the drains leaked and caused invasive damage. Investigator Fultz opined that Respondent’s work performed on the roof affected the drains. Investigator Fultz further explained that he did not issue a Written Directive in this matter because Respondent placed his license on “inactive” status sixteen days after its last attempt at corrective work.

Investigator Fultz explained that on a flat roof, drains are installed in certain locations in order to enable water to drain off of the roof. The roof drains are connected to pipes installed in the walls of the home allowing water to flow through and exit the pipes through this drainage system. Investigator Fultz testified that no work had been performed to the drains after the roofing was done and the drains existed when the roofing was installed. As such, Respondent accepted responsibility for the condition of the drains when it performed its work. Investigator Fultz expounded that Respondent accepted the drainage system and the purpose of the drains to funnel water off the roof. Respondent removed the existing roof and installed a new roof that were both attached to the drains. It was only after Respondent’s removal of the existing roof and installation of the new roof that the drains failed.

Investigator Fultz testified that the drains were visible because the walls had been removed to show the water damage. Investigator Fultz testified regarding photograph 5 taken at the jobsite inspection. That photograph depicts water damage in an area where the water supply originated from the top and ran down the wall.

Complainant testified that he purchased his home in March 2017 and was performing improvements to the home, including new flooring and painting. None of the improvements performed to the home would have affected the roof or roof drainage system. Because the house was constructed in 1999 and the roof was original to the home, Complainant believed it would be prudent to replace the roof due to its age and to protect the interior improvements. Complainant credibly testified that when he purchased the home an inspection was completed and there were no issues observed with the roof. Further, Complainant had resided in the home for six months, through monsoon season, prior to having the roof replaced by Respondent, and did not experience any leaks.

Complainant contracted with Respondent on July 12, 2017. Respondent began work on the roof on September 5, 2017, and completed the roof installation on September 15, 2017.

On November 27, 2017, Complainant send Respondent an email which stated in pertinent part, “. . . I noticed after it rained that water was pooling around the drains outside the master bedroom. I am not sure if that should happen and whether there are other areas it is occurring.”

Complainant experienced three or four leaks over an approximate two year period. Each time Complainant discovered a leak, Complainant contacted Respondent and Respondent was responsive, although unsuccessful at stopping the leaking. In early 2019, Respondent last performed work to Complainant’s roof. After that, Complainant was told Respondent had gone out of business.

Complainant testified that seven of the roof drains leaked and that he experienced a major leak that caused extensive damage to the upstairs game room and dining room. Complainant made a claim with his insurance company. Complainant contended that Respondent damaged the drains during the roof installation.

Complainant submitted into evidence a January 9, 2020 report prepared by Augspurger Komm Engineering, Inc. at his insurance company’s request. According to the report, an inspection was conducted on January 3, 2020. Photographs were taken at the inspection. Photograph 260 depicts an area within a wall cavity. The yellow arrow superimposed on the photograph identified an opening in the connector between the roof drain and the plumbing line. The report indicates, “Rain water that is discharged through this drain would readily escape through this opening, infiltrating the wall cavity and residence.”

The report further provided:

The cause of leak 1 was readily identified as a failed flexible coupling. It is possible that the pan for the roof drains was moved when the roofing work was done, placing unnecessary transverse loading on these couplings, resulting in their failure. It is also possible that they have been loaded since the original installation and have simply failed due to wear and tear. Further investigation would be needed to differentiate between these causal factors.

Failed/failing couplings are the likely cause for leaks 2, 3, and 5 as well. As the issue appears to be systemic, it is likely the other couplings are either imminent for failure or have begun to fail as well. Because of this, I recommend they all be examined and/or replaced.

Leak 4 is unique in that it occurs at a scupper drain. This section of roofing was an [sic] added to the home between 2005 and 2006. The scupper is unique in that it is round, where other scuppers draining water from the second-story roof onto the first-story roof are square. Because of this, flashing this scupper would be different, and more difficult due to the circular geometry. The sealed flashing on the south wall was seen in other areas of the roof, consistent with repair efforts by the roofer to correct other leaks that were not properly identified. Therefore, it is likely that this area was leaking prior to this work being performed. Because of this, poor workmanship around the scupper has been identified as the likely cause of this leak.

There was no evidence to suggest the roof has been damaged by hail, wind, or other storm-related phenomena.

The report concluded:

Based on my experience, inspection, research, and analysis, and within a reasonable degree of engineering certainty, I offer the following:

The source of moisture intrusion in most of the identified areas is failed couplings on the roof drains. The issue appears systemic, suggesting that others have or will fail.

The leak identified as area 4 is likely related to flashing for the scupper drain above. This area should be explored further to identify the exact cause.

Complainant has since replaced his roof in order to solve the problem with the leaks.

Regan Anderson, owner of Anderson Roofing, testified on behalf of Respondent. Mr. Anderson opined that the PVC pipe in the walls has come apart and any resulting water damage was due to the couplings becoming loose. Mr. Anderson opined that this was due to a lack of glue or primer or freeze/thaw conditions.

Gary Watson, owner of Hays Roofing, testified on behalf of Respondent. Mr. Watson testified that the drains are immovable and that only the compression rings can be moved. Mr. Watson explained that once a drain is bolted in place, the drain pipe should not move. Mr. Watson opined that damage to the drains would be a plumbing issue which would require a plumbing license to address. Mr. Watson testified that piping would not come apart if it were installed correctly, and that coupling coming apart would be due to improper gluing of the pipe. Mr. Watson opined that a roofer cannot damage piping and that taking a ring off a drain would not move the drain. Mr. Watson stated that it “would be hard to damage [a drain] much less more than one.”

Neither Mr. Anderson nor Mr. Watson have been to Complainant’s home and neither observed the drains or the work performed by Respondent.

Mike Stell, Respondent’s qualifying party and member, testified that he processed the sale of the new roof to Complainant for Respondent. Mr. Stell testified that he “was shocked” that Complainant was replacing his roof, but he also testified that it was prudent to replace a roof that is twenty years old given Arizona’s weather conditions. Mr. Stell acknowledged that it would be “unusual” for seven drains to leak after the roof was installed. However, Mr. Stell stated that he has been in business for twenty-five years and has never seen anything like this situation.

Vincent Taylor, Jr. testified on behalf of Respondent. Mr. Taylor installed the roof on Complainant’s home and investigated the issues therewith in an effort to identify the cause of the leaks. Mr. Taylor testified that the drains are fixed in place and immobile, and opined that “something is wrong with the PVC.”

Administrative notice is taken of Respondent’s prior License record on August 18, 2020. Such prior License record reflects that Respondent’s License No. 277061 was first issued on February 13, 2012, and has been inactive since March 12, 2019. Such prior License record also reflects that there are no other open complaints and 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 Administrative Law Judge concludes that the existence of the roof drains was pre-existing and that Respondent, by proceeding to remove and replace the existing roof, had effectively accepted the surface/condition of the drains as being adequate to support its work. Upon contracting to install a new roof, and in conjunction therewith guarantee its workmanship, a contractor accepts the surface as being adequate to support its work.

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 of record further established that notwithstanding initially attempting to rectify the leaks in the roof, Respondent failed to find the cause and remedy the issue. Therefore, Complainant established that Respondent abandoned the contract in violation of A.R.S. § 32-1154(A)(1)

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. 277061 for a period of five (5) 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 will be 40 days from the date of that certification.

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-137160-45720000Done this day, August 27, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000