ALJDEC - Licensing

2023A-02019-CHC-ROC · Registrar of Contractors · 2024-04-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Katie Marie Graif,

COMPLAINANT

v.

Level 5 Companies LLC

License No. ROC 330832,

RESPONDENT

No. 2023A-02019-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 29, 2024

APPEARANCES: Complainant Katie Graif was represented by Jay R. Graif, Esq. Aaron Finter, Esq. appeared via Google Meet on behalf of Level 5 Companies, LLC. Investigator Mark Nipp appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit 1 and Respondent’s Exhibits 4-7 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

Level 5 Companies LLC. (Respondent) is the holder of License No. 330832 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 16, 2021, Katie Marie Graif (Complainant) agreed to have Respondent replace one section of her roof in Scottsdale, Arizona. The contracted amount was $1,500.00, and Complainant paid the same on December 21, 2021.

On or about February 20, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Miles Nipp. The jobsite inspection was performed on May 15, 2023.

Investigator Nipp then issued a written directive on or about May 25, 2023, 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 June 12, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item #1: Contractor performed defective roofing work which resulted

in water leaks and damage to interior surfaces.

Investigator’s Observation: Verified

. . .

Both parties were in the process of beginning a water test when I arrived. The Respondent sprayed water starting from the lower portion of the stuccoed walls and incrementally moved upward and eventually ending on the roof itself. I was able to observe all phases of the water test. I saw that there was a leak into windows #1-2 when water was sprayed above them where the rafter tails penetrated the stucco. I also noted that when water was spray from the ridgeline of the tiled roof downward onto the tiles, water leaked into the house through the ceiling in 3 minutes and 20 seconds. I stopped the water test immediately. It appears that there are two different leaks. On in the roofing system and one in the stuccoed wall. Windows 1-4 all leaked when water was spray on them which likely caused the drywall damage specific to those areas. The roof leak caused damage to the drywall in the ceiling.

The Respondent should investigate the roof leak and all damage caused by it, making necessary repairs to the roof and correcting any damage located.

ROC Workmanship Standards for Licensed Contractors (June 2009) states, Roof leaks are not acceptable and the contractor should determine the cause of the leak and make all necessary repairs.

The contractor should identify all locations where this condition exists and the respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 1-13

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 June 29, 2023, Investigator Nipp conducted a Compliance Jobsite Inspection. Investigator Nipp noted the following:

Compliance Jobsite General Notes:

The Respondent did do corrective work to the tiled roof; however the Complainant was not satisfied with that work.

Compliance Findings:

Compliance Item #1: Contractor performed defective roofing work which resulted in water leaks and damage to interior surfaces.

Investigator’s Observation: Verified

Compliance Jobsite Inspection Conducted on 06/29/2023:

I saw that the following item had been corrected:

The rafter tails had been sealed. The Complainant did not want to conduct a water test to determine if there was still a leak or not.

No further action is required on this item.

I saw the following item had not been corrected:

The interior drywall damage remained in the same condition as it had been during the Jobsite Inspection conducted on 05/15/2023. No corrective work was conducted.

I saw the Respondent had conducted corrective work on the following item:

The tiled roof had been re-done. However, it was not done within acceptable minimum workmanship standards.

I saw that the flashings applied to the inside parapet wall and chimney (CJSI P6-9) were unnecessarily wrapped around the chimney, causing additional penetrations that could potentially leak. The flashing appeared to be partially sealed; however, in many instances, the sealant was excessive and unsightly.

The roof tiles (CJSI P6-9) are not aligned vertically or horizontally. I saw multiple roof tiles that were installed at odd angels and not in line (on any plane). I saw roof tiles Angled the wrong direction. The mortar was inconsistently sized/shaped.

I saw there was no drip edge installed at the eave as required by the 2021 International Residential Code (IRC), Section R905.2.8.5. (Scottsdale’s Adopted Code).

ROC Workmanship Standards for Licensed Contractors (June 2009) states, A contractor shall perform all work in a professional and workmanlike manner. Improper or inadequate flashing. Flashings should be installed according to manufacturer's recommendations and should be an approved type. Crooked vertical and horizontal lines. Vertical and horizontal lines should be reasonably straight unless varied deliberately for effect.

The corrective work performed by the Respondent does not meet acceptable minimum workmanship standards. The Respondent has failed to comply with a written directive issued by the Registrar.

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.

Governing Rule: A.R.S. § 32-1154 (A)(2)(b): Departure from or disregard of: (b) A building code.

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...

(All errors contained in the original).

On July 6, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b); 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 July 21, 2023, Respondent e-mailed an Answer to the Registrar.

On or about July 28, 2023, a Notice of Hearing was issued setting a hearing on September 14, 2024, at the Office of Administrative Hearings, an independent state agency.

After several continuances, the hearing was held on March 29, 2024.

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

Investigator Nipp testified that he was standing in the front room and saw water coming from the ceiling during the jobsite inspection water test. Also, Investigator Nipp testified that once he saw the leaking, he stopped the water test to minimize any further damage.

Further, Investigator Nipp testified that Respondent failed to repair the damage to the ceiling.

Complainant offered the testimony of Chris Milliken, Leon Duda, and herself.

Chris Milliken was the owner of a property restoration company, and he saw several areas in the roofline of damage.

Katie Graif testified that she reached out to Respondent to initially quote a whole roof replacement, but finally settled on just the front roof replacement. The repair was performed in October 2021, and soon after the leak was discovered.

Ms. Graif testified further, that Respondent then performed further repairs, but the issue returned, so she contacted the Registrar.

Also, Ms. Graif testified that the work on the roof tails was a verbal agreement.

Leon Duda resides in the home with Ms. Graif. He testified that the leaks were worse after the corrective work performed after the first repair.

Mr. Duda testified that he was present during the water test, and that the water sprayed by Mr. Ford was only sprayed on the front slope, and was initially spraying on the right side and once Mr. Ford started to spray on the left side, the leak commenced.

Finally, Mr. Duda testified that after the water test at the jobsite inspection on May 15, 2023, no further water test was performed.

Respondent presented the testimony of Chris Ford. Mr. Ford testified that he had been in construction since 2000.

Mr. Ford testified that there was no language in the contract to do any work with the stucco penetrations.

Further, Mr. Ford testified that on September 26, 2022 was the first time he was notified about issues with the roof. Mr. Ford testified that he installed a new underlayment and tile replacement so the whole job was re-done.

Mr. Ford testified that at the jobsite inspection Mr. Duda had commenced the water test before he arrived but could not replicate the leak. Mr. Ford testified when he started his water test he started from the back of the roof and when Investigator Nipp told him to stop he was spraying at the ridgeline. Mr. Ford also testified as to the damage he saw on the back slope of the roof.

Further, Mr. Ford testified that he did not perform corrective work to the interior damage as he believed another water test would be performed to ensure no leaking before making the ceiling repair.

Administrative notice was taken of Respondent’s prior License record on April 15, 2024. Such prior License record reflected that Respondent’s License No. 330832 was first issued on September 30, 2020, and reflected that there was one open case, namely the present complaint. Further, there were 2 resoled/settled cases.

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 departed from the building code in violation of A.R.S. § 32-1154(A)(2)(b) as there was no drip edge installed at the eave.

Also, the preponderance of the evidence demonstrated that Respondent’s work was not in conformity with the Registrar’s standards. The evidence provided that the flashing applied to the inside parapet wall and chimney were unnecessarily wrapped around chimney, the roof tiles were not aligned vertically or horizontally, and there was no drip edge installed at the eave. 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 Respondent failed to complete the corrective work following the Directive being issued. While the tribunal understands Mr. Ford’s thought process for not repairing the ceiling, given his experience, he could have inquired about his concerns with Mr. Nipp. Doing nothing however, was unacceptable. 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. 330832 for a period of five 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.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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.

Done this day, April 15, 2024.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Jay Richard Graif, Esq.

[email redacted]

Aaron Finter, Esq.

[email redacted]

By: OAH Staff