ALJDEC - Licensing
2023A-09201-CHC-ROC · Registrar of Contractors · 2024-04-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Richard Leonard ,
COMPLAINANT
v.
Leak Stoppers LLC
License No. ROC 321310,
RESPONDENT
No. 2023A-09201-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 25, 2024, 9:00 A.M.
APPEARANCES: Complainant Richard Leonard appeared on his own behalf; Todd Evans, CEO, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibit Nos. 1-5
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Leak Stoppers, LLC (“Respondent”), is the holder of License Number 321310 issued by the Registrar of Contractors (“Registrar”).
2. On or about August 10, 2023, Richard Leonard (“Complainant”) filed a Complaint against Respondent with the Registrar alleging poor work in connection with roofing work performed by Respondent at a residence in Tucson, Arizona (“project”). The Complaint reflected a contract amount of $13,500.00.
3. The Registrar performed an inspection of the project on September 22, 2023. Thereafter, the Registrar issued a Directive, dated September 22, 2023, requiring Respondent to correct various alleged deficiencies in Respondent’s work by October 10, 2023, by appropriate means as follows:
Compliance Item: 1 - The drip edge is improperly nailed down to prevent buckling or lift up at the leading edges of the roof, this is seen across the entire perimeter of the home.
Investigator’s Observation: The front and back of the homes drip edge is lifting and wavy. Gaps are present along the edge.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 2 - Also, the transition to the porch roof at the southeast corner is not sealed, this is a vector for attracting water, bees, wasps and other pests.;
Investigator’s Observation: This area has lifted, drip edge is also bent.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 3 - Felt & Tar: All edges along the perimeter of the home are poorly bonded and pulling up in many areas. I would like to see that a portion of the felt be removed, allowing for the drip edge to be properly fastened. A 3 course flashing should be used to bridge the transition, this can be achieved by using a tietex membrane and heavy duty mastic patching coat which will provide the necessary water seal.;
Investigator’s Observation: Areas along rakes are loose, nail heads can be seen.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 4 - Excess tar can be seen in many places which have created large cracks. I would like to see these spots be scraped to remove the excess and properly patched with a 3 course flashing as needed.;
Investigator’s Observation: Some areas in the field of the roof have excess tar which are mounded and the roof coating over it has cracked open.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
Compliance Item: 5 - Roof Coating: It looks like only one coat was applied to the roof beyond a coverage rate that a product manufacturer would warranty. It appears the contractor bought less paint and spread it too thin. I would like to see a primer coat be applied across the entire roof surface and it be properly coated twice with either the 7k or 10k roof coat from Tucson Roof Coatings in Tan.;
Investigator’s Observation: Roof coating appears thin. Has cracked open in areas and the tar undercoat is showing throughout the roof.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
4. After some corrective work was performed, a Compliance Inspection was performed on October 27, 2023, and the Registrar made the following findings:
Compliance Findings: Compliance Item: 1- The drip edge is improperly nailed down to prevent buckling or lift up at the leading edges of the roof, this is seen across the entire perimeter of the home.
Note: Areas along the North roof edge are spongy with nails that move up and down when stepped on. Nails are not penetrating anything. Nails heads are visible and in some areas popping through roof coating. South side of roof has no visible nails. If nails are not serving purpose they should have been removed. All areas should be uniform and of similar quality.
5. Thereafter, the Registrar issued a Citation to Respondent, dated October 31, 2023, for the alleged violation of the following:
a. A.R.S. §32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
b. A.R.S. §32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract;
c. A.R.S. §32-1154(A)(22) (failure to perform corrective action without valid justification).
6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing that set a hearing after a continuance for March 25, 2024, at 9:00 A.M.
7. At the March 25, 2024, hearing, Complainant Richard Leonard testified on his own behalf and presented the testimony of David Winslow; Todd Evans, CEO, testified on behalf of Respondent. Mike Springer, the Registrar Investigator (“Investigator”), testified on behalf of the Registrar.
8. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he testified that all of the Directive items had been corrected except for Complaint Item No. 1, where he observed that the north edge of the roof was basically spongy with nails moving up and down when you stepped on it. (Pages 70, 72, and 73 of Pre-Hearing packet). With regard to Complaint Item No. 5, he testified that he was not able to determine how many new coats had been applied to the roof but that he considered the item corrected. He further testified that the job completion date and the notice to the property owner of the right to file a complaint with the Registrar were missing from the contract with Complainant.
9. Complainant Richard Leonard testified that in addition to Complaint Item No. 1, it was his view that Complaint Item Nos. 4 and 5 were not corrected. He showed photographs depicting that tar had just been painted over. (Complainant’s Exhibit No. 5). He further contended that Respondent did not apply sufficient material for one roof coating, much less two coats. He stated the corrective work should have included two new coats given that the original coat had failed after only 15 months after its application. He further testified he did not allow access to the roof immediately prior to the Compliance Inspection when Respondent appeared unannounced because he had asked for notice from Respondent.
10. David Winslow testified on behalf of Complainant that he is a design-build contractor in Tucson who was present before and during the corrective work. He stated he was shocked at the condition of the roof after the Directive was issued and prior to the corrective work and that it did not look like a roof with two coatings as required in the contract. He further stated he spoke with the crew that told him they had three and one half 5-gallon buckets to do corrective roof coating work which, according to the manufacturer’s data sheet, would require almost 10 buckets to apply two coats. (Complainant’s Exhibit No. 3). He stated he saw buckling on the east and west side as well as the north side.
11. Dylan Thomas testified on behalf of Respondent that the tar areas were not cracks in the roof system, but rather an allogation in the asphalt which he stated did not affect the integrity of the roof and should not be scraped off. (Complainant’s Exhibit No. 1). With regard to the corrective work, he testified his crew had sufficient material to apply one coat the roof and that two coats were not required. He further testified he had attempted to check whether Complaint Item No. 1 had been corrected before the Compliance Inspection but was not allowed access by Complainant.
12. Administrative notice is taken of Respondent’s prior license record which reflects that Respondent’s License No. 321310 was first issued on August 7, 2018. Such prior license record also reflects one Open case, one Disciplined case, and two Resolved/Settled cases.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:
3. Violation of any rule adopted by the registrar.
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12. Failure in any material respect to comply with this chapter.
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22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action....
5. With regard to the “[v]iolation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
6. With regard to the “[f]ailure in any material respect to comply with this chapter” under A.R.S. § 32-1154(A)(12) referenced in the Citation, A.R.S. § 32-1158(A) in Chapter 10 requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least nine items as delineated therein including the following information:
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4. The estimated date of completion of all work to be performed under the contract.
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9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....
7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). Respondent did not dispute that Complaint Item No. 1 was not corrected. (Complainant’s Exhibit Nos. 1, 4).
Complainant also contended that Complaint Item Nos. 4 and 5 were uncorrected even though the Investigator considered them to be corrected. However, there was insufficient evidence presented to refute the Investigator‘s findings. With regard to Complaint Item No. 4, Complainant contended that the roof coating should not have been applied over what appears to be excess tar buildup that had cracked. (Complainant’s Exhibit No. 5). However, Respondent countered that the excess tar was not cracked and should not have been removed or leveled. The Tribunal was not persuaded by Complainant’s position that it should have been removed.
Complainant also argued that Respondent did not apply a sufficient amount of material to coat the roof and that the corrective work should have included two new coats rather than the one coat applied. However, Mr. Winslow’s testimony as to the hearsay statement of Respondent’s crew worker was not sufficient to prove how much material was in fact applied. Further, the evidence was insufficient to show that the corrective work of one coat applied by Respondent to the original coat constituted a failure to perform work in a professional and workmanlike manner.
8. A.R.S. § 32-1154(A)(12). On March 18, 2024, Respondent presented a revised copy of its bid contract proposal that included the missing items, the project’s completion date and notice of a property owner’s right to file a complaint with the Registrar. The new form is substantially in compliance with A.R.S. § 32-1158(A)
9. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). The evidence presented demonstrated that Respondent had not completed its corrective work. Although Respondent attempted to return to check its work immediately before the Compliance Inspection, the evidence reflected that it attempted to do so unannounced. Complainant testified he would have allowed access, but with sufficient notice from Respondent, which was not given.
10. Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Leak Stoppers, LLC’s, License Number 321310 is suspended for two days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order.
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)(5), unless Respondent tenders payment of the 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/ Roger Geddes______
Administrative Law Judge
Transmitted electronically to:
Tom Cole
Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Leak Stoppers LLC
8323 N Shannon Rd Apt 18208
Tucson, AZ 85742
[email redacted]
Richard Leonard
2725 Tuberose St
San Diego, CA 92105
[email redacted]
By: OAH Staff