ALJDEC decisions subject to certification as final
2022A-00737-CHC-ROC · Registrar of Contractors · 2022-06-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Karen Sanger,
COMPLAINANT
v.
Modern Image Contracting, LLC
License No. ROC 330286,
RESPONDENT
No. 2022A-00737-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: June 23, 2022
APPEARANCES: Complainant Karen Sanger appeared on her own behalf. Miguel Burrola appeared on behalf of Respondent Modern Image Contracting, LLC. Arizona Registrar of Contractors Investigator John Smith appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
Modern Image Contracting, LLC (“Respondent”) is the holder of License No. 330286 issued by the Arizona Registrar of Contractors (“Registrar”). Miguel Burrola is Respondent’s Qualifying Party and a Member of Respondent.
On or about November 30, 2021, Karen Sanger (“Complainant”) contracted with Respondent for Respondent to remove the existing roof tile, replace the underlayment, re-install pre-existing roof tile and install new roof tile as necessary. The contract price was $13,000.00. Complainant paid Respondent $13,368.00.
On or about January 27, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the Complaint to Investigator John Smith. After a February 22, 2022 jobsite inspection, Investigator Smith issued a Written Directive 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 March 24, 2022.
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: “The clay tile roof was recently re-roofed and does not appear to have been professionally done with areas of roof reset and reinstalled not up to current industry standards.”
Investigator’s Observations: Verified.
This is a general statement; however this statement is accurate. Specific workmanship issues are identified and explained in the following complaint items.
Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “THE TILE ROOF HAS RECENTLY BEEN RE-ROOFED HOWEVER DOES NOT APPEAR TO HAVE BEEN PROFESSIONALLY DONE WITH AREA SOF ROOF RESET AND REINSTALLED NOT UP TO CURRENT INDUSTRY STANDARDS”
Complaint Item 2: “The original field tiles over this roof are no longer made or available, and many tiles have been reinstalled in broken, chipped, or cracked condition.”
Investigator’s Observations: Verified.
There are numerous shipped and cracked tiles throughout the roof.
Chips larger than a quarter or excessive in number are unacceptable. The current amount of chipped and/or cracked tiles is considered excessive. Broken or cracked tiles are unacceptable. Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520:
“THE ORIGINAL FIELD TILES OVER THIS ROOF ARE NO LONGER MADE OR AVAILABLE AND MANY TILES HAVE BEEN REINSTALLED IN BROKEN CONDITION”
Complaint Item 4: “A drip edge was not installed prior to resetting birdstop riser flashing.”
Investigator’s Observations: Verified.
The original bird stop metal was removed during the project.
This caused damage to the painted surface of the fascia boards.
No metal drip edge was installed prior to the underlayment or replacement of he bird stop metal. Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “A DRIP EDGE WAS NOT INSTALLED PRIOR TO RESETTING BIRDSTOP RISER FLASHING”
Complaint Item 5: “Birdstop is improperly reset exposing underlayment or fascia trim board at south side of garage.”
Investigator’s Observations: Verified.
Bird stop metal is not installed flush with the fascia boards. There is exposed lumber and underlayment downstream of the bird stop metal.
Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “BIRDSTOP IS IMPROPERLY RESET EXPOSING UNDERLAYMENT OR FASCIA TRIM BOARD AT SOUTH SIDE OF GARAGE”
Complaint Item 6: “Excess gap where tiles or flashing is missing and where unsecured or unsealed underlayment is seen at eave below southwest rake edge.”
Investigator’s Observations: Verified.
Missing tile(s) at the south side of the garage, at the tie-in to the house. This is resulting in improper flashing and exposed underlayment.
Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “EXCESS GAP WHERE TILES OR FLASHING IS MISSING AND WHERE CAN SEE UNSECURED OR UNSEALED UNDERLAYMENT AT EAVE BELOW SW RAKE EDGE”
Complaint Item 7: “Exposed framing at corner of eave south of rear patio where original underlayment has curled back and original insufficient pan flashing was reused.”
Investigator’s Observations: Verified.
There is exposed lumber and underlayment at the south side of the patio, near the tie-in to the main house roof.
Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “EXPOSED FRAMING AT CORNER OF EAVE SOUTH OF REAR PATIO WHERE ORIGINAL UNDERLAYMENT HAS CURLED BACK AND ORIGINAL INSUFFICIENT PAN FLASHING WAS REUSED”
Complaint Item 8: “Insufficient headlap of tiles (less than the required industry standard of 3" or greater) exposing fastener holes of tiles at course of tiles above patio and at ridge of roof.”
Investigator’s Observations: Verified.
Areas of visible nail hole in the tiles confirm insufficient head lap of the tiles. One accessible area was measured at 2-1/4 inches of head lap.
Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “INSUFFICIENT HEADLAP OF TILES (LESS THAN THE REQUIRED INDUSTRY STANDARD OF 3" OR GREATER) EXPOSING FASTENER HOLES OF TILES AT COURSE OF TILES ABOVE PATIO AND AT RIDGE OF ROOF”
Complaint Item 9: “Headwall top flashing is lifted from tiles where newer tiles were installed at smaller north roof section and fasteners are missing from tile at area.”
Investigator’s Observations: Verified.
The headwall flashing at the left end of the north roof section is lifting.
Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “HEADWALL TOP FLASHING IS LIFTED FROM TILES WHERE NEWER TILES WERE INSTALLED AT SMALLER NORTH ROOF SECTION AND FASTENERS ARE MISSING FROM TILE AT AREA”
Complaint Item 10: “The required perimeter nailing of tiles at ridges, rake edges and roof edges was not done.”
Investigator’s Observations: Verified.
This is not visible without lifting some of the tiles; however, this was acknowledged by the respondent. Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “THE REQUIRED PERIMETER NAILING OF TILES AT RIDGES, RAKE EDGES AND ROOF EDGES WERE NOT DONE”
Complaint Item 11: “There are other loose unsecured tiles along valley.”
Investigator’s Observations: Verified.
There are several loose, unsecured, and poorly set tiles visible in the valleys. Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “OTHER LOOSE UNSECURED TILES ALONG VALLEY”
Complaint Item 14: “The underlayment is not fully wrapping rake fascia board at south outset rake edge next to gutter”
Investigator’s Observations: Verified.
As visible at the lower end of the barrel tiles, the underlayment is not wrapping over the ends of the roof. Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “THE UNDERLAYMENT IS NOT FULLY WRAPPING RAKE FASCIA BOARD AT SOUTH OUTSET RAKE EDGE NEXT TO GUTTER”
Complaint Item 15: “Adhesive not reapplied where cap tiles are loose along peak ridge”
Investigator’s Observations: Verified.
This is not visible without walking on the tiles; however, this was acknowledged by the respondent. Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “ADHESIVE NOT REAPPLIED WHERE CAP TILES ARE LOOSE ALONG PEAK RIDGE”
Complaint Item 16: “Tiles not properly overlapping where tiles were offset during reinstall at several areas”
Investigator’s Observations: Verified.
There are tiles visible that are not properly overlapped/seated to the adjoining tiles. Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “TILES NOT PROPERLY OVERLAPPING WHERE TILES WERE OFF SET DURING REINSTALL AT SEVERAL AREAS”
Complaint Item 19: “...contractor recently advised the nails along the roof sides needed to be removed and replaced with longer nails...”
Investigator’s Observations: Verified.
This is not visible without removing current nails; however, this was acknowledged by the respondent.
Complaint Item 20: “...Numerous other issues have been identified by an independent roof inspection.”
Investigator’s Observations: Verified.
This is a general statement; however this statement is accurate. Specific workmanship issues are identified and explained in the following complaint items. Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “THE TILE ROOF HAS RECENTLY BEEN RE-ROOFED HOWEVER DOES NOT APPEAR TO HAVE BEEN PROFESSIONALLY DONE WITH AREA SOF ROOF RESET AND REINSTALLED NOT UP TO CURRENT INDUSTRY STANDARDS”
Complaint Item 23: “...The contractor discarded part of the birdstop, and cut and spliced together other sections. One of the gaps was partially covered with a piece of bent aluminum flashing.”
Investigator’s Observations: Verified.
There is at least one section of unpainted metal added to extend the original bird stop metal. Additionally, the new metal is unpainted.
Complaint Item 24: “New, darker clay tile (does not match existing tile) was supposed to be installed on side overhangs and along bottom edge of roof line at border with patio roof. At the time the tiles were being installed on the back side of the roof, contractor informed me they weren’t able to install the new darker unmatched tile on the bottom rows as initially agreed upon. There is now a large section of the back roof tile that is mismatched, affecting the appearance, saleability and value of the home.”
Investigator’s Observations: Verified.
There is a noticeable color difference between the new tiles and the original tiles – on the back side of the roof.
Complaint Item 25: “I was advised during the contractor’s initial visit that most of the existing tile was in decent condition and could be reused. I was never advised the damage to existing tiles was extensive. It seems a large number of the existing tiles may have damaged by the work crew during careless, unskilled removal and reinstallation...”
Investigator’s Observations: These statement further describe comments in Complaint Item 2. It cannot currently be determined if the damage to the tiles was pre-existing, or if the damage was caused during the respondent’s work. Whether the respondent installed damaged tiles, or caused tiles to be damaged, the respondent is still responsible for the current condition of the tiles, as described in Complaint Item 2.
ADDITIONAL VIOLATIONS
In addition to the allegations in the complaint, the following violations were verified:
Warning Letter: Elements of a Contract.
Investigator’s Observations: The respondent’s contract is missing the following information:
• The contractor’s business address
• An estimated date of completion
REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-1158
Warning Letter: Display of License.
Investigator’s Observations: The respondent’s invoice does not include the respondent’s ROC number.
REQUIRED CORRECTIVE ACTION: The respondent is to submit documented compliance with A.R.S. § 32-1124
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint Item 3: “Original valley flashing is recessed and not updated with a standard triple diverter flashing.”
Investigator’s Observations: This allegation is NOT verified.
Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “ORIGINAL VALLEY FLASHING IS RECESSED AND NOT UPDATED WITH A STANDARD TRIPLE DIVERTER FLASHING” The complainant acknowledged that during the project, there was a verbal agreement between the parties to re-use the original valley flashing. There are no known or visible defect with the current valley flashing.
Complaint Item 12: “Updated flashing and new seals at base of chimney had to be installed to address rain water leak at base of chimney which occurred after roof replacement”
Investigator’s Observations: This allegation is NOT verified.
The complainant stated this has been repaired and currently unaware of any active leaks. Quoted from a “Roof Opinion Report” dated 1/27/22, and performed by Roof Teks Inc, ROC 269520: “UPDATED FLASHING AND NEW SEALS AT BASE OF CHIMNEY LIKELY ADDRESSING REPORTED LEAK AT BASE OF CHIMNEY WHICH OCCURRED AFTER ROOF REPLACEMENT”
Complaint Item 13: “Chimney leak caused interior water damage to drywall and inside wall. The drywall and tile that were removed above the interior fireplace for the restoration work have not yet been replaced.”
Investigator’s Observations: This allegation is NOT verified.
The complainant stated this has been repaired and currently unaware of any active leaks. The complainant stated the interior work has been performed and is acceptable.
Complaint Item 17: “Contractor said re-roofing project would take 3 days at the longest. The work started on 12/02/2021 and was supposed to be completed on 12/04/2021. The crew was a no show on 12/04/2021.”
Investigator’s Observations: This statement by the complainant does not implicate a workmanship issue, or a violation of A.R.S. § 32-1154(A).
Complaint Item 18: “Interior water damage restoration still not completed...”
Investigator’s Observations: This allegation is NOT verified.
The complainant stated the interior work has been performed and is acceptable.
Complaint Item 21: “Ongoing issues with the crew -- not showing up as scheduled; inconsistent, unskilled work; communication issues due to only one crew member having the ability to communicate in the English language (Carlos); different crew members every day; crew leader (Jesus) was not onsite every day to direct and supervise the crew. Crew leader Jesus was not able to communicate directly with me in English. Repairs to chimney flashing were done by yet another roofer who was not part of the initial crew.”
Investigator’s Observations: This statement by the complainant does not implicate a specific workmanship issue, or a violation of A.R.S. § 32-1154(A). Workmanship issues are addressed in other Complaint Items.
Complaint Item 22: “About 1/3 of the tiles on the back side of the roof (south end) were initially replaced at a noticeable angle (i.e. crooked and curved) to align with improperly replaced birdstop. I observed and questioned why a significant number of chipped / damaged tiles had been reinstalled. The entire section had to be removed and reinstalled yet again...”
Investigator’s Observations: This allegation is NOT verified as a violation of A.R.S. § 32-1154(A). This statement is describing past events. The current conditions and current workmanship issues are addressed in other Complaint Items.
Complaint Item 26: “...continue to find shards / broken bits of clay tile in the yard around the house.”
Investigator’s Observations: This allegation is NOT verified.
The complainant did pick up one nail from the ground during this inspection.
There was no other roofing nails or debris on the ground during this inspection.
All errors and emphasis in original.
The deadline for the Written Directive was extended by Investigator Smith, providing Respondent with 36 days for compliance.
On April 15, 2022, Investigator Smith conducted a compliance inspection. Investigator Smith’s compliance inspection notes state the following:
Compliance Jobsite Inspection General Notes:
This Compliance Inspection was to evaluate the current conditions of item(s) requiring corrective action as stated on the Directive. Those item(s) are listed below.
Compliance Findings: The respondent has not taken appropriate corrective action to comply with the Directive. Corrective work has been performed, however; the current conditions do not meet ROC Workmanship Standards.
The following observations are quoted from a “Roof Opinion Report” dated 4/8/22, and performed by Roof Teks Inc, ROC 269520:
These conditions were also observed during the ROC compliance inspection:
“...THE PERIMETER NAILING OF TILES WAS NOT PERFORMED AT ALL AREAS WHERE REQUIRED PER INDUSTRY STANDARD
INSUFFICIENT FLASHING AT EAVE CONNECTION SOUTH OF REAR PATIO WHERE A MORE STANDARD 6" GALVANIZED PAN FLASHING SHOULD HAVE BEEN INSTALLED
NAIL FASTENERS ARE MISSING AT TRIM BARREL TILES OVER NORTH OUTSET BAY WINDOW ROOF SLOPE
ROOF DECKING REMAINING EXPOSED WHERE UNDERLAYMENT IS NOT WRAPPING EDGE AT BOTTOM OF REAR SOUTH RAKE EDGE
BIRDSTOP EDGE FLASHING IS NOT FULLY SET UNDER EDGES OF TILES AT ONE OR MORE AREAS PREVIOUS SEAL IS SEPARATED AT CHIMNEY HEADWALL TOP FLASHING WHICH MAY OCCURRED DURING REMOVAL AND RESETTING OF TILES
MORTAR APPLIED AT CONNECTIONS IS SLOPPY...
MISALIGNMENT OF VERTICLE ROWS OF TILES WHERE INSTALLED WAVY...”
In addition to the items specifically identified in the “Roof Opinion Report”, the following conditions were observed during the ROC compliance inspection:
In some locations, the underlayment does not extend past the gable ends of the roof the minimum of one inch. Other locations, the underlayment that does extend past the gable ends of the roof is not fastened in place.
There at least two tiles with corners broken off, the broken/missing pieces of the tiles is larger than the size of a quarter.
The headwall flashing at the north dormer roof section is still not lying flat on the tiles.
There are tiles visible that are not properly overlapped/seated to the adjoining tiles.
The roof sheathing at the roof overhangs is damaged as a result of roofing nails penetrating through the roof sheathing.
The top louvered cover of the A/C condensing unit has bent fin(s). This A/C condensing unit is directly below one of the roof overhangs.
Governing Rule: A.R.S. § 32-1154(A)(22): Failure to take appropriate corrective action to comply with this chapter or with the rules adopted pursuant to this chapter...
As stated on Directive: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-1158
Compliance Inspection Findings for this item: This has been corrected.
The respondent submitted an updated contract form on 4/4/2022.
All errors and emphasis in original.
Investigator Smith forwarded the Complaint to the Registrar’s Legal Department. 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).
Investigator Smith testified consistently with the findings contained in his jobsite inspection notes, the Written Directive, and the compliance inspection notes. The photographs taken by Investigator Smith at the jobsite and compliance inspections and contained in the administrative record, depict the deficiencies noted in the Written Directive. Investigator Smith testified that at the jobsite inspection, Respondent did not dispute his findings and agreed with all of the items identified as needing correction, and that Respondent subsequently acknowledged that items are still in need of correction.
Investigator Smith testified that he referenced in the Written Directive and the compliance inspection notes the roofing inspections that Complainant had performed by Roof Teks, Inc. on January 27, 2022, and on April 8, 2022, after Respondent performed corrective work.
Investigator Smith testified that after Respondent performed corrective work, there remained many outstanding and unresolved issues as delineated in the compliance inspection notes and as indicated in Roof Teks, Inc.’s April 8, 2022 inspection report.
Investigator Smith testified that after the issuance of a Warning Letter regarding Respondent’s non-compliance with the Registrar’s statutory requirements for written contracts, Respondent remedied the deficiencies in its written contract and submitted its current contract form that complies with the Registrar’s statutory requirements.
Investigator Smith testified that he contacted Complainant on June 3, 2022 to inquire whether any further work had been performed by Respondent. Complainant informed Investigator Smith that no additional work had been performed by Respondent. Consequently, Investigator Smith did not conduct a prehearing inspection.
Complainant testified that Respondent began its work on December 2, 2021, completed its work on December 13, 2021, and that the roof first leaked on December 31, 2021. Complainant expressed her frustration with her experience in dealing with Respondent and testified that she has anxiety concerning the fact that monsoon season is upon us, she is struggling to find a contractor that will perform the necessary work to her roof, and she does not have the funds to pay for the necessary repair work. Complainant testified that she concurred with Investigator Smith’s testimony regarding Respondent’s workmanship deficiencies and Respondent’s non-compliance with the Written Directive.
Mr. Burrola testified that he does not believe Respondent’s license should be disciplined because Respondent has completed in excess of 200 roofs since it obtained licensure two years ago, and this is its only complaint and only roof that has leaked. Mr. Burrola urged that Respondent should not be disciplined “for one mistake,” and that “there will always be issues with every roof” and “every roofer will have their own opinion.” Mr. Burrola asserted that Respondent’s work meets the Registrar’s standards, and that “only minor repairs” remain with “no long-term effect.” Mr. Burrola did not address Respondent’s non-compliance with the Written Directive.
Administrative notice is taken of Respondent’s prior License record on June 24, 2022. Such prior License record reflects that Respondent’s License No. 330286 was first issued on August 24, 2020, and is active. Such prior License record also reflects that there is the instant open complaint, zero disciplined complaints, and one resolved/settled complaint against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The credible and probative evidence of record 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(A).
The evidence, including Respondent’s own admission, established that Respondent did not complete the corrective work following the Written Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar, without valid justification, 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. 330286 for a period of five (5) 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 (30) 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 forty (40) days from the date of that certification.
-54864001
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-137160-45720000Done this day, June 29, 2022.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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-137160-45720000By Miranda Alvarez
Legal Secretary