ALJDEC decisions subject to certification as final
2020A-02534-CHC-ROC · Registrar of Contractors · 2020-10-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jessica Rodriguez,
COMPLAINANT
v.
Arizona Fire and Water Restoration Inc., License Nos. ROC 065873, 072526,
RESPONDENT
No. 2020A-02534-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 23, 2020
APPEARANCES: Complainant Jessica Rodriguez appeared on her own behalf via Google Meet. Lyle Book appeared via Google Meet on behalf of Respondent Arizona Fire and Water Restoration Inc. Michael Wiskow, Investigator for the Registrar of Contractors, appeared via Google Meet. Witnesses Jeff Hughes, Don Crandell and Hector Suppici all appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Arizona Fire and Water Restoration, Inc. (Respondent) is the holder of License Nos. 065873 and 072526 issued by the Arizona Registrar of Contractors (Registrar).
On or about April 20, 2020, Jessica Rodriguez (Complainant) signed a contract with Respondent for repair of her roof and other internal damage caused by a wind storm which then lead to water damage.
On or about May 22, 2020, the Registrar received a Complaint containing 31 items against Respondent alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator Michael Wiskow. The original inspection was performed on June 16, 2020.
Investigator Wiskow then issued a written directive on or about June 17, 2020, 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 July 8th, 2020.
. . .
You are hereby directed to remedy the following violations by the appropriate means:
Compliance Item: 2 - Shingles not sealed to roof
Investigator’s Observation: The corners of the roof and the four small rakes are not fastened or sealed. Contractor should fasten and seal all shingles by appropriate means.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 5 - Roof not sealed where water has caused damage.
Investigator’s Observation: Roof installed a modified roof to wall flashing for custom area. Contractor should caulk all exposed nails
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 12 - Structural damage to truss and patio wood by protruding nails and cracked wood all throughout.
Investigator’s Observation: There are some spots on the underneath side of the roof sheathing at the eves where staples shot through and splintered the wood. Contractor should make repairs by appropriate means
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 13 - Improper Insulation
Investigator’s Observation: Per Photo supplied by Complainant, Insulation is not placed correctly. Contractor should place insulation properly using appropriate means
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 14 - Metal work on drip not sealed properly Investigator’s Observation: Drip edge in at rake is not secured. Contractor should secure drip edge
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 18 - Light fixtures blinds and vent covers painted over detached and not reset
Investigator’s Observation: Light fixtures are not installed yet. Contractor should install all fixtures, blinds and vent covers
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 19 - Satellite dish left hanging
Investigator’s Observation: The satellite is hanging off the side of the roof. Contractor should reinstall Satellite Dish
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 21 - Front security door broken door knob Investigator’s Observation: Security knob is broken at the front door. Contractor should repair knob on security door.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 24 - Final clean not completed.
Investigator’s Observation: The final clean was not performed because the project was not complete. Contractor should clean up when their portion of the job is done.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Following the issuance of the written directive, Respondent went back to the property to commence repairs pursuant to the same.
On July 10, 2020, Investigator Wiskow performed a Compliance Jobsite Inspection. Investigator Wiskow noted that Respondent failed to comply with three of the nine directives and issued a Compliance Jobsite Inspection Notes on or about July 10, 2020, to Respondent that provided as follows:
Compliance Item #2 - There was a corner of the roof where the shingles were still not sealed.
Compliance Item #12 - There are still areas damaged by roof staples coming through the roof decking at the eves. Damaged areas appeared to be stained, but not repaired.
Compliance Item #13 – The insulation was not bunched up like it was at the JSI, but the insulation is still improper in that it does not cover the entire width of the bottom truss chord space.
On or about July 21, 2020, 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 Wiskow testified as to his reports and the work that was left incomplete.
Investigator Wiskow testified that if a roof was left incomplete, it could jeopardize the life of the roof. He further testified that he believed that the roof was compliant with the applicable building code, but that building code standards may be different than the Registrar of Contractors standards.
Complainant testified generally that the work performed was poor and that she wanted Respondent’s license revoked. She was also concerned that the home was not safe for occupancy.
While Complainant had numerous other issues with the work that was performed she testified that Compliance Items 2, 12, and 13 are still not correct and did not have confidence that they will be if Respondent is given another opportunity.
With regard to Compliance Item 2, Complainant testified that she was concerned that the poor workmanship on the shingles would void her warranty with the manufacturing company, Malarkey Roofing Products. She also testified that she believed that there were other places on the roof where the shingles were not sealed, not just one corner.
With regard to Compliance Item 12, Complainant testified and provided pictures demonstrating that there were still damaged areas caused by the roof staples. It was her testimony that Respondent used nails longer than what was needed.
As to Compliance Item 13, Complainant testified that the original insulation was “blown” into the attic, but that Respondent used “batt” insulation. She further testified that because of the change of insulation and how it was installed, she experienced higher than normal cooling bills since the work was performed.
Complainant also had Hector Suppici testify on her behalf. Mr. Suppici was a home inspector and he performed an inspection on the property. Mr. Suppici testified that he believed the house was inhabitable, however it was due to electrical issues and not specifically Respondent’s work.
Lyle Book testified on behalf of Respondent.
Mr. Book testified generally that Respondent was more than willing and able to make the three remaining items correct if given another opportunity.
With respect to Compliance Items 2 and 12, Don Crandall testified as a witness for Respondent as he was the roofing contractor on the project. He testified that the remaining repairs were “not a big deal” to get fixed, and he would have liked the opportunity to correct the issues.
Mr. Crandell also testified that there was no safety hazard as to the remaining items. In addition, Mr. Crandell testified that he was at the jobsite for the first part of the day to get the project started but was not there to inspect the corrective work at the end.
With respect to Compliance Item 13, Jeff Hughes testified for Respondent has to the insulation issues. Mr. Hughes testified that as to “bedroom 1” only, they installed 146 square feet of “batt” insulation. He testified that he believed that it was installed correctly and should not have bunched up. He further testified that he felt as if someone bunched up the insulation to make it not compliant.
Administrative notice is taken of Respondent’s prior License record on September 24, 2020. Such prior License record reflects that Respondent’s License No. 065873 was first issued on August 27, 1986, and is currently active. Such prior License record also reflects that there is one open complaint, namely the present complaint. As to Respondent’s License No. 072526, that License was first issued on December 17, 1987 and is currently active with no history of complaints.
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. Respondent acknowledged that the three items were still not completed. As to the roof issues, while Mr. Crandell testified that they were “not a big deal” to fix, it is concerning that more care was not shown in completing the issues with the roof, given the numerous complaints. With regard to the insulation, Mr. Hughes’ seemed to believe that someone intentionally bunched up the insulation. Given the circumstances surrounding this project, it was hard to fathom such an explanation. 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 failed to complete the corrective work following the Directive being issued by July 8, 2020. 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. 065873 for a period of two days.
It is further recommended that the Registrar require Respondent to pay the sum of $300.00 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.
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-137160-45720000Done this day, October 7, 2020.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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