ALJDEC decisions subject to certification as final

2020A-03352-CHC-ROC · Registrar of Contractors · 2021-02-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Martha Davis,

COMPLAINANT,

Dabella Exteriors LLC,

License No. ROC 317425,

RESPONDENT.

No. 2020A-03352-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 23, 2021

APPEARANCES: Complainant Martha Davis appeared on behalf of herself. Jeremy Guntt appeared on behalf of Respondent Dabella Exteriors, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent Dabella Exteriors, LLC holds license number 317425 issued by the Arizona Registrar of Contractors (Registrar).

2. On or about March 21, 2020, Complainant Martha Davis and Respondent entered into a residential construction contract wherein Dabella would install a new roof on Ms. Davis’s home.

3. On or about April 14, 2020, Respondent started work.

4. On or about April 20, 2020, Respondent stopped work.

5. On or about July 13, 2020, the Registrar received a complaint from Ms. Davis

alleging poor work on the part of Respondent.

6. On or about August 4, 2020, Registrar Investigator Jack Grimm conducted

a job site inspection.

7. On August 13, 2020, Investigator Grimm issued a Directive to Respondent.

The August 13, 2020 Directive provided, in relevant part, 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 September 14, 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 reasons1, or is inactive, expired, 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 #1: Multiply sizes of drip edge around the sides of house.

Investigators Observation: Two sizes of drip edge were installed on the home. The gable ends or sloped portions have the standard single roofing drip edge. The bottom portions of the slope have a much smaller drip edge installed that is not standard to the industry shingle roofing drip edge. Locations of incorrect drip edge need to be corrected. All drip edge on home needs to match.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #2: Shingles not tacked down in front (wind can get underneath).

Investigators Observation: Starter shingles installed at the bottom of the slope of the roof are not attached and can be lifted. Starters and all shingles need to be installed (fastened) per manufacturers installation instructions.

Governing Rule: 32-11549(A)(3) Poor work

Complaint Item #6: Removed wood from sides of cricket and replaced with metal flashing that isn’t sealed up, instead of just replacing the wood they removed.

Investigators Observation: This is a location on the east and west side were the slope of the main house roof transitions to the flat portion. It is not uncommon for this location to be covered with metal flashing to protect wood in these locations, however, this work is incorrectly and poorly done. The flashing and roofing needs to be installed correctly.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #8: The sides have rolled roofing over a flashing, then connected to the roof with another flashing on top.

Investigators Observation: This location is the same as Complaint item #6. This location is poorly installed and needs to be corrected.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #10: Sinkhole with rolled roofing over it.

Investigators Observation: Observed a very large location were the sloped roof transitioned to the flat portion of the roof that appeared to be ponding water. Based on the photos I observed provided by the Respondent during reroofing period the location at the bottom of the sloped rear portion of the roof to the flat portion of the roof had severe water damaged and major structure damage to the framing under the roof sheathing where the slope was framed to meet the flat portion of the roof. The contractor appears to have removed all the sheathing and the framing under the sheathing that was water damaged so badly that new roofing could not be installed over it. Respondent appears to have replaced the plywood from the sloped portion of the roof to the existing flat portion of the roof and possibly not framing support under the new plywood as it is soft and ponds water. This work performed by the contractor is the contractor’s responsibility. Locations under the newly installed plywood locations that are ponding water need to be corrected. Locations of ponding water over the flat portion of the structure that has no slope would be the responsibility of the property owner. Contractor should remove roofing and allow the property owner to make corrections to these locations. (per ROC workmanship standards “if a drainage problem is due to improper framing problems the roofer should be responsible for repairing and replacing affected roofing” only. Unless there is verifiable documentation that a potential problem existed and was submitted to the property owner. Correct locations of ponding where Respondent installed new plywood. Remove roofing and allow homeowner to correct locations of ponding on flat portion of roof and reroof. Some ponding on this flat portion of the roof (future second floor that is dead flat) may still be present after repairs. Locations referred to above for correction are excessive.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #11: Excess shingles on one side not trimmed.

Investigators Observation: Observed location of shingles at gable end that was not trimmed back correctly.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #13: Rolled roofing not overlapping properly (extreme areas where the black is showing).

Investigators Observation: Correct locations of where black is showing at overlaps of rolled roofing.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #15: Rained inside the house, not sealed.

Investigators Observation: Property owner states there was a leak around the vents. Any leaks that took place after the new roof was installed will need to be addressed and any interior damaged repaired.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #16: No air ducts installed.

Investigators Observation: Contract does not specify any roof (attic) vents. It does reference pipe vents (Plumbing or HVAC) roof jacks. Contract states installation of five (5) pipe jack vents. These pipe jacks are not all installed and need to be completed.

Governing Rule: 32-1154(A)(3) poor or incomplete work.

Complaint Item #17: East front side of house shingle cut back too far.

Investigators Observation: Correct location where the shingles were cut back to far exposing the drip edge from the top.

Governing Rule: 32-1154(A)(3) poor work

8. Respondent did not correct the items listed in the Directive by September 14, 2020.

9. On or about October 28, 2020, Investigator Grimm conducted a compliance job site inspection. Investigator Grimm concluded that Respondent completed all of the items listed in the Directive with the exception of complaint items 1, 2, 15, and 16. Investigator Grimm’s job site inspection notes provided, in relevant part, as follows:

Complaint Item #1: Multiply sizes of drip edge around the sides of house.

Governing Rule: 32-1154(A)(3) Poor work

*INCOMPLETE: The size of the drip edge has been corrected. However, there is a damaged/bent location of drip edge on the west front gable end slope.

Complaint Item #2: Shingles not tacked down in front (wind can get underneath).

Governing Rule: 32-11549(A)(3) Poor work

*INCOMPLETE: The first two rows of shingles have been replaced and appear to be installed correctly. However, this repair damaged the third row of shingles.

Complaint Item #15: Rained inside the house, not sealed.

Governing Rule: 32-1154(A)(3) Poor work *INCOMPLETE: Interior drywall repairs are incomplete.

Complaint Item #16: No air ducts installed.

Governing Rule: 32-1154(A)(3) poor or incomplete work.

*INCOMPLETE: The whirly bird vents are not correctly installed.

10. On or about December 1, 2020, the Registrar issued a Citation against Respondent’s license. Through the Citation, the Registrar alleged that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108(a) and Ariz. Rev. Stat. section 32-1154(A)(22).

11. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of Respondent.

12. Respondent filed a timely answer to the Citation.

13. On January 19, 2021, the Registrar issued a Notice of Hearing setting the matter for hearing on February 23, 2021. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

14. A hearing was held on February 23, 2021.

15. Investigator Grimm provided testimony regarding his investigation of the compliant and issuance of the Directive.

16. At hearing, Ms. Davis testified on behalf of herself. Ms. Davis expressed that Respondent performed poor work and damaged her home. Ms. Davis asserted that she should not be required to pay for Respondent’s damage and poor work.

17. Mr. Guntt stated that many of the things that Ms. Davis stated were correct. Mr. Guntt asserted that Ms. Davis hired Respondent to repair the leaks in her roof. Mr. Guntt asserted that Ms. Davis’s slope area needed to be rebuilt and but Respondent was not responsible for the repair. Mr. Guntt stated that Respondent was unable to fully and timely comply with the Directive because Ms. Davis made it difficult to access her home. Mr. Guntt stated that Ms. Davis did not want anyone at her home unless she was present. Mr. Guntt stated that Ms. Davis was busy with work. Mr. Guntt stated Respondent repaired all of the remaining complaint items (except for complaint item 15), after the Directive expired. Mr. Guntt contended that Respondent was not responsible for repairing complaint item 15.

18. Ms. Davis denied that she hired Respondent to repair leaks in her home. Ms. Davis expressed that she hired Respondent to install a new roof because her existing roof was very old. Ms. Davis stated on cross examination that she had leaks at the back of her home before Respondent started construction. However, Ms. Davis contended that the current leaks around the vents did not start until after Respondent began construction.

19. Administrative notice is taken of Respondent’s license history. According to the Registrar’s website on February 24, 2021, Respondent’s license was issued on January 16, 2018, and is active. Such prior License record shows that three complaints were resolved or settled by the contractor or withdrawn by the complainant after issuance of a corrective work order or formal citation. The Registrar has never disciplined Respondent’s license. Respondent’s lack of disciplinary history is considered a mitigating factor in the imposition of penalties.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. section 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

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 section 5 (1960).

3. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike manner in violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108.

4. The preponderance of the evidence does not show that Ms. Davis denied Respondent access to her home.

5. The preponderance of the evidence shows that Respondent failed to

correct the items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar suspend License No. 317425 of Dabella Exteriors, LLC for one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty. Done this day, February 24, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors