ALJDEC decisions subject to certification as final

2020A-04015-CHC-ROC-RES · Registrar of Contractors · 2021-11-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Chateau de Vie Four Townhouse Association,

COMPLAINANT,

MK House Consulting Inc.,

License No. ROC 284844,

RESPONDENT.

No. 2020A-04015-CHC-ROC-RES

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 24, 2021 and October 20, 2021 with the record held open until November 10, 2021.

APPEARANCES: Chris R. Baniszewski, Esq. appeared on behalf of Complainant Chateau de Vie Four. Brian J. Pezzillo, Esq. appeared on behalf of Respondent MK House Consulting, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

1. Respondent MK House Consulting, Inc. (MK House) holds license number 284844 issued by the Arizona Registrar of Contractors (ROC).

2. MK House and Complainant Chateau de Vie Four Townhouse Association (Chateau) entered into a contract wherein MK House would install a spray polyurethane foam roof (SPF Roof) on the homes in Chateau.

3. On or about August 16, 2029, MK House began work on the homes.

4. On or about December 12, 2029, MK House stopped work.

5. On August 19, 2020, the ROC received a complaint from Chateau alleging poor workmanship on the part of MK House.

6. On September 11, 2020, ROC Investigator Randy Morris conducted a job-site inspection regarding the items listed in Chateau’s complaint. Investigator Morris took photographs of the roofs of the buildings in Chateau. See the ROC’s administrative record, pgs. 165-228 and 412.

7. On September 24, 2020, the ROC issued a Directive to MK House.

The Directive provided, in relevant part, as follows:

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You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on October 26, 2020.

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

Compliance Item: - 2. “incorrect drip edge for a flat foam roof”

Investigator’s Observation: The Contract states “Install specialized flashing on top of roof and fascia, seal roof/top side of fascia.” The NRCA Roofing Manual: Metal Panel and SPF Roof Systems—2012 Chapter 8 states: “SPF roof systems are terminated with perimeter edge-metal flashing that is commonly referred to as a foam stop. If the foam stop has a vertical height less than 1 inch, NRCA recommends installing a V-groove filled with elastomeric sealant.” The Complainant stated that the original roof edge flashing that was removed has a foam stop, the Complainant demonstrated a piece of the original drip edge with a foam stop as evidence. The Respondent has installed a metal drip edge without a foam stop. Industry standards requires the use of a foam stop drip edge. The allegation is verified.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: - 9. “Incorrect drip edge for a flat foam roof”

Investigator’s Observation: See Complaint Item #2.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

8. MK House offered to install the foam stop for an additional fee. Chauteau refused to pay the additional fee. MK House did not comply with the Directive.

9. On November 19, 2020, the ROC issued a Citation against the license of MK House. Through the Citation, the ROC alleged that MK House may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) and (22); Arizona Administrative Code R9-22-108(a).

10. MK House filed a timely answer to the Citation.

11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

12. On January 29, 2021, the Registrar issued a Notice of Hearing setting the matter for hearing on March 1, 2021. The Notice of Hearing provided that the issue set for determination is the Citation issued by the Registrar.

13. A hearing was held on August 24, 2021 and October 20, 2021.

14. At hearing, Investigator Morris testified regarding his investigation of the complaint and the issuance of the Directive. Chateau presented the testimony of Dale Mason and Philip Coppola. MK House presented the testimony of Jonathan Barton and Gary Ray.

15. Dale Mason served as the President of Chateau’s Board from 2017 to 2020. Mr. Mason served on the Board at the time of the contract between Chateau and MK House. Mr. Mason explained that Chateau performed poor work in connection with the SPF roofing installation.

16. Investigator Morris inspected the items listed in the complaint. Although Investigator Morris believed that the roofs had drainage issues, Investigator Morris testified that he did not conduct testing regarding such issues or any other inspections outside of the items listed in the complaint. See Investigator Morris’s testimony on the August 24, 2021 hearing audio record at 13:47 minutes to 25:01 minutes and 47:00 to 49:20 minutes.

17. Investigator Morris opined that there was nothing different about the roofs of the buildings in Chateau that would require the elimination of the foam stop. Investigator Morris opined that MK House’s failure to install a foam stop was not a modification, but a different application of the roof edge. See Investigator Morris’s testimony at 52:00 – 53:30 minutes.

18. Investigator Morris observed that the image of the roof edge in the contract did not include a foam stop. However, Investigator Morris explained that Chateau’s work did not meet minimum workmanship standards because the NRCA Roofing Manual recommends that SPF roofs be installed with a foam stop.

19. Philip Coppola owns Philip S. Coppola & Associates, LLC (PSC). PSC holds a KB-2 Dual Residential and Small Commercial license issued by the ROC. Mr. Coppola is the qualifying party for PSC. Mr. Coppola has owned PSC for 17 years. Mr. Coppola has supervised the installation of several foam roofs. Mr. Coppola explained that MK House installed the SPF roof in a form completely different from what is recommended in the NRCA Roofing Manual.

20. Mr. Coppola stated that the NRCA Roofing Manual recommends that a foam stop be used when installing an SPF roof. Mr. Coppola explained that foam cracks and thins out when a foam stop is not used. Mr. Coppola explained that it is standard within the construction industry to install a foam stop with an SPF roof. Mr. Coppola opined that a foam stop could have been installed without a V-groove and sealant.

Mr. Coppola stated that he has seen several homes in the Phoenix area where a foam stop was installed without a V-groove and sealant. However, Mr. Coppola stated that he has never seen an SPF roof installed without a foam stop.

21. Chateau requested that the license of MK House be suspended until MK house properly corrects the work pursuant to the Directive. See Chateau’s Reply Brief 11/10/2021, pg. 15.

22. Jonathan Barton is an employee of MK House. Mr. Barton asserted that MK House’s work met minimum workmanship standards. Mr. Barton asserted that he never agreed to install a foam stop on the buildings within Chateau. Mr. Barton asserted that the NRCA Roofing Manual did not require that a foam stop be installed with the SPF roof. Mr. Barton stated that Chateau’s roofs had ponding issues and that his solution would have reduced the amount of ponding on Chateau’s roofs. Mr. Barton explained that he shaved down the foam to a zero-point thickness. Mr. Barton also stated that installing the foam edge would require the installation of a V-groove that would require additional maintenance. Mr. Barton stated that Chateau expressed that it desired a roof edge installation that would require less maintenance.

23. Gary Ray is a Project Manager in the Housing and Community Development Department for the City of Mesa. Mr. Ray is responsible for administering HUD funds for the community. In his role, Mr. Ray provides cost estimates, administers contracts, and manages projects for the City of Mesa. Mr. Ray has a construction technology degree and holds a general contractor’s license in several states, including Arizona. Mr. Ray opined that MK House’s process of shaving down the foam was the best solution because Chateau requested an installation that would require less maintenance over the years. Mr. Ray also stated that the installation of a foam edge was more costly. Mr. Ray acknowledged that the NRCA Roofing Manual recommends a foam stop with an SPF roof installation. However, Mr. Ray opined that a foam stop is not required to meet minimum industry standards. Mr. Ray stated that there have been recent articles that show that SPF roofs do not require metal counter flashings. However, there was no evidence of such articles presented at the hearing.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 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 § 5 (1960).

3. The preponderance of the evidence shows that Respondent did not perform the work in a professional and workmanlike as alleged in complaint items 2 and 9, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108. The preponderance of the evidence shows that Respondent’s work did not meet minimum industry standards because Respondent failed to install a foam stop during the SPF roof installation, as recommended by the NCRA Roofing Manual. If Respondent could not perform the SPF roof installation project without complying with the Registrar’s workmanship standards, it should not have undertaken the job without a written waiver signed by Chateau. Respondent did not obtain such a warranty disclaimer in this case.

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

Correct complaint 2 and 9 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 shall suspend Respondent’s license No. ROC 284844 for three days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar copies of its form contract that has been revised to comply with the requirements of Ariz. Rev. Stat. § 32-1158(B).

If Respondent fails to provide proof that it has so revised its form contracts, it is recommended that Respondent’s license be suspended for three days.

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 Ariz. Rev. Stat. sections 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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-137160-45720000Done this day, November 30, 2021.

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 is forty days after the date of that certification.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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