ALJDEC

98F-1984-ROC · Registrar of Contractors · 1998-10-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 15, 1998 APPEARANCES: Elizabeth Ernyei, Complainant, in her own behalf Daphne Reaume, Attorney at Law, on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

FINDINGS OF FACT The Roosevelt Neighborhood (Roosevelt) is a historical neighborhood in Phoenix, Arizona. Roosevelt obtained a grant from the Heritage Fund of Arizona for renovation of some of the neighborhood homes. The Complainant owns a home in the Roosevelt neighborhood. In June of 1995, Roosevelt entered into a contract with the Respondent to put a new roof on the Complainant’s home. Roosevelt would pay 60% of the cost and the Complainant would pay 40%. Roosevelt scheduled or otherwise coordinated the work to be done on refurbishing the homes. In addition to the roof, the Complainant’s home was to receive new plumbing, some electrical work and some carpentry work. In July, 1995, the Respondent installed a new fiberglass shingle roof on the Complainant’s home. In August, 1995, after a severe monsoon storm, the Complainant noted leaks in the living room, dining room, kitchen and bathrooms of the home. The leakage was also noted by Dr. Joan Kelchner (Dr. Kelchner), former president of Roosevelt. The Respondent performed corrective work at the home in response to a letter from Roosevelt on behalf of the Complainant. Shortly after repair work was done on the roof, new plumbing was installed at the Complainant’s home. Plumbing vents and soil pipes were installed on the roof and caulked with tube caulk. The Respondent later “three coursed” these areas with mastic, web and granules. Chimney stucco was applied to two chimneys in November, 1995. Flashing which had been installed by the Respondent on the chimneys was removed apparently by the person who put the stucco on the chimneys. The flashing was subsequently replaced by the Respondent in January, 1996. After another rain in approximately November, 1995, and additional leakage, Roosevelt sent another letter to the Respondent on behalf of the Complainant. The Respondent came to the home and attempted to determine the cause of the leaks. On December 21, 1995, the Complainant filed a complaint with the Registrar of Contractors (Registrar). On December 29, 1995, Inspector Richard Stuart (Stuart) of the Registrar’s Office did a job site inspection. At that time the Respondent did a water test on the roof and leaks were prominent in the both bathrooms and the hallway. On January 2, 1996, Stuart issued a Corrective Work Order (CWO) which required the Respondent to take appropriate action to repair the leaks in the bathrooms and hall, repair any interior damage caused by the leaks, any work done on the carport under a permit needed to be inspected, and cause to be made any necessary repairs to carport rafter tails. On January 12, 1996, Stuart issued another CWO which essentially said that the Respondent had told him that the leaks may be related to work done by persons other than the Respondent and the Respondent would not be responsible for repairs to interior damage. This CWO does not address the issue of the cause of the leaks. Sometime in late March, 1996, the complaint was re-opened. A job site was scheduled for April 16, 1996, by Stuart. Water testing at the time of the inspection disclosed leaks and knife cuts. Splits in the roof were filled with plastic roof cement. On February 17, 1998, the complaint was again filed with the Registrar in this case. It alleged that the back bathroom and carport were still leaking after numerous attempts to correct the condition. By letter dated March 30, 1998, Inspector Cliff Frandsen (Frandsen) of the Registrar’s Office informed the Complainant that the roofing repairs had been completed and were under warranty. Frandsen performed a number of inspections at the home and although he noted some interior wall damage and deterioration of plaster, he could not discover the cause of any asserted leakage. The walls at the time of his inspection were not wet and Frandsen testified there were no leaks when he did inspections during the period of March through June, 1998. Frandsen went on to testify that the roof was installed in an acceptable workmanlike manner although hearsay evidence in the form of a letter from Lawrence Roof Consultants, Inc. (Complainant’s exhibit A) is to the contrary. The letter from Lawrence Roof Consultants asserts that roof valleys have been installed backwards, chimney flashing is under the roofing when it should be on top and the tie in roof in the rear of the residence is improper. Repair of a roof valley with caulking or plastic cement is not aesthetically pleasing (Complainant’s Exhibit C, photograph 4) but there was no competent evidence that it was unacceptable or otherwise failed to meet a required standard. The chimneys are not covered and have no flue liner. A recessed portion under the north end of the roof is open to the elements. The Complainant testified the plaster, especially in the dining room, continues to deteriorate and the dining room wall was wet after a rain in July, 1998. CONCLUSIONS OF LAW The allegations of the Citation and Complaint concern A.R.S. §32- 1154(A)(3) violation of any rule specifically A.A.C. R 4-9-108, workmanship standards, and A.R.S. §32-1154(A)(7) wrongful or fraudulent conduct resulting in substantial injury. The Complainant has the burden of proof by a preponderance of the evidence. Aside from the reference to the dining room wall being wet in July, 1998, further evidence with respect to the cause and extent of recent leaks is seriously lacking. Inspector Frandsen was unable to determine if there was current leakage or the cause of the asserted problem between March and June of 1998. Frandsen testified he considered the roof to have been installed in a workmanlike manner. This testimony is countered by the hearsay in the report of Lawrence Roof Consultants, Inc. (Lawrence). Absent specific reasons to conclude otherwise, and under the circumstances of this case, the testimony of Frandsen as well as the Respondent is given greater weight than the Lawrence report. The various independent factors including the installation of vents, soil pipes, the open chimneys, removal of chimney flashing after the roof was installed, plus the open recessed area of the roof, all have a potential for causing or contributing to any continuing problem with leaks. The Respondent cannot be held accountable for changes or modifications to the roof over which he had no control. The Complainant made the point that the initial leaks in August of 1995, were prior to the later work on the roof which the Respondent asserts are causative of any continuing problems. The two positions are not inconsistent. The Respondent could certainly have corrected the cause of the August, 1995 leak and the more recent leaks may be attributable to the factors relied on by the Respondent. Based on the most competent evidence, it is evident that any conclusion finding the Respondent liable would constitute speculation and guesswork. The Complainant has not met the burden of proving the case by a preponderance of the reliable and probative evidence. In view of the above conclusions, the Respondent’s motions for summary judgment and to dismiss need not be addressed. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Citation and Complaint upon which it is based be dismissed. Done this day, October 28, 1998.

_________________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of October, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826