ALJDEC decisions subject to certification as final

2021A-03170-CHC-ROC · Registrar of Contractors · 2021-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lisa Maureen Flynn,

COMPLAINANT

America's Best Roofing Company, LLC

License No. ROC 322113,

RESPONDENT

No. 2021A-03170-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 2, 2021

APPEARANCES: Complainant Lisa Maureen Flynn appeared via Google Meet on her own behalf. Respondent America’s Best Roofing Company, LLC was represented by Neal Eckel, Esq. who appeared via Google Meet. Registrar of Contractors Investigator Gregory Johndrow appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

America’s Best Roofing Company LLC (Respondent) is the holder of License No. 322113 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 29, 2021, Lisa Maureen Flynn (Complainant) entered into a contract with Respondent for the installation/replacement of her roof at her residence. The total amount for the contract was 23,006.36.

On or about July 9, 2021, the Registrar received a Complaint stating, “[r]oof replacement done poorly and lead to devastating water damage to home with first rain.”

The Registrar assigned the complaint to Investigator Gregory Johndrow.

The jobsite inspection was performed on August 2, 2021.

Investigator Johndrow then issued a written directive on or about August 11, 2021, to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 3, 2021.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Roof replacement done poorly and lead to devastating water damage to home with first rain.”

Investigator’s Observation: Verified: The Complainant pointed out and showed me water damage caused throughout the residence as a result of the newly installed roof that leaks. It should be noted, I observed overall poor workmanship of the installed roofing material throughout the entire roof. Including but not limited to; roof ply separations, excessive ponding water in multiple areas, no scuppers installed through masonry walls, tears and wrinkles in the roofing material, poorly sealed roof jacks, failure to install roof jacks, failure to replace sections of the existing roof (namely under the heating and cooling units), roof ply overlap installed in the wrong direction and improper flashing of pipe penetrations through the parapet walls.

The Respondent is to ensure all of the poor workmanship is addressed, corrected and meet standards. The Respondent is to ensure the roof does not leak. The Respondent is responsible for any damages caused as a result of their failed work.

Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.

(All errors contained in the original)

On September 1, 2021, Investigator Johndrow issued a new Written Directive extending the time for compliance to September 10, 2021.

On September 15, 2021, a Compliance Jobsite Inspection was performed. In hos notes regarding the same, Investigator Johndrow stated:

Compliance Inspection Findings for this item: Some work has been done, however; the current conditions do not meet ROC Workmanship Standards. The roof currently leaks in the garage in several locations. The roof does not drain properly throughout the areas above the main residence and continues to hold excessive ponding water. No scuppers were installed through the parapet walls, some areas still never received new roofing and overall poor workmanship is still noted throughout entire roof areas. Additionally, at the time of this inspection there had been no resolution for the damage to the interior of the structure and personal items.

On September 21, 2021, 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(a) and A.R.S. § 32-1154(A)(22).

On or about October 6, 2021, Respondent e-mailed an Answer to the Registrar.

On or about October 26, 2021, a Notice of Hearing was issued setting a hearing on December 2, 2021 at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Johndrow testified as to the Registrar’s involvement and the above timeline.

Investigator Johndrow testified that he saw poor workmanship overall at the jobsite. Investigator Johndrow testified further that at the Compliance Jobsite Inspection, he conducted a water test and observed that the roof still had leaks in the garage area. He testified that it appeared to him that coatings were used to make the roof look better and some areas did not receive a new roof.

In addition, Investigator Johndrow testified that to his knowledge there had been no resolution as to the damage caused to the interior of the house due to the water damage.

Finally, Investigator Johndrow testified that he conducted a pre-hearing jobsite inspection on November 29, 2021, and still observed ponding water on the roof, although he was unable to determine if it was from a recent rainfall.

Ms. Flynn testified on her own behalf and offered three exhibits into evidence. Ms. Flynn testified that she was informed by Respondent that it would send its very best team to make the corrective repairs once the Directive was issued, however it was her belief that this was not the case.

Ms. Flynn testified that workers opted not to move the HVAC unit over the garage and therefore did not install the proper material to prevent leaks.

Ms. Flynn testified that she would have liked to see Respondent’s very best team and would have liked to see through drawings and the like how they would have sloped to roof to prevent further leaking/ponding.

Sergio Jimenez testified on behalf of Respondent and offered one exhibit into evidence. Mr. Jimenez stated that he was “beyond embarrassed” about the job and admitted he came up a bit short on the Directive, but believed he could still properly fix the roof. Mr. Jimenez testified that flat roofs were not what he typically worked on, and that this was a learning experience.

Mr. Jimenez testified that his teams applied two to four layers of coatings to make the roof impenetrable to water. He further testified that the HVAC over the garage was not moved due to scheduling issues.

Mr. Jimenez testified that he believed that the solution was to install a “polyiso system” under the roof, but obtaining the same is difficult due to current shortages in the market.

Administrative notice is taken of Respondent’s prior License record on December 13, 2021. Such prior License record reflects that Respondent’s License No. 322113 was first issued on September 20, 2018, and reflects that there were three open complaints, which included the present complaint.

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 Vazzano 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 preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Mr. Jimenez admitted that he was inexperienced with flat roofs and the work was not per workmanship standards. He further testified that he did not disagree with any of the Registrar’s findings. 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(A).

The evidence established and Mr. Jimenez admitted that he failed to complete the corrective work following the Directive being issued. While there was an attempt to make the corrections, it was clear that the work performed failed to remedy the issue. 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).

While the Tribunal appreciates Mr. Jimenez’s remorse and embarrassment, it was clear through his own testimony that he did not have experience with flat roofs and either should not have taken the job, or at a minimum should have hired experienced crews to perform the corrective work. Ms. Flynn suffered significant damage, and therefore, the Tribunal believes a significant penalty should be ordered.

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. 322113 for a period of twenty days.

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 30 days from the date of that certification.

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-137160-45720000Done this day, December 13, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000