ALJDEC

98F-2346-ROC · Registrar of Contractors · 1998-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 28, 1998; 1:30 P.M.; Phoenix, Arizona APPEARANCES: Complainants: Lawrence C. Forsythe, President Respondent: No Appearance ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr.

This is a disciplinary proceeding pursuant to Arizona Revised Statutes (“A.R.S.”) ' 32-1154. Based upon the evidence presented at the hearing, Administrative Law Judge George A. Schade, Jr.[1] submits this Recommended Decision and Order to the Registrar of Contractors (“Registrar”). FINDINGS OF FACT PROCEDURAL HISTORY AND FACTS 1. Respondent Personalized Roofing, Inc. (“Personalized Roofing”) holds License No. 119498, Class L-42 (Roofing), issued by the Registrar on December 16, 1996. Mr. Mark Anthony Oclassen is the qualifying party, and Personalized Roofing’s representative in this project. 2. On March 23, 1998, Southwest Architectural Builders, Inc. (“Southwest”) filed a complaint alleging that Personalized Roofing had installed roofing in such a manner that “Concrete tile roofing [was] not nailed properly.” Southwest was the licensed general contractor in this project. 3. On May 14, 1998, Mr. Lewis R. King, the Registrar’s assigned inspector, made a jobsite inspection. Neither Mr. Oclassen nor a representative of Personalized Roofing attended this inspection. 4. On May 18, 1998, Mr. King issued a Corrective Work Order which stated in pertinent part: “Roof tile not nailed or fastened per manufacture specifications on buildings A, B, and C. Contractor to determine cause and correct condition.”

5. On June 15, 1998, Southwest requested a hearing, as Personalized Roofing had failed to complete the corrective work. 6. On July 14, 1998, the Registrar issued Citation and Complaint No. 98-2346 to Personalized Roofing alleging violations of A.R.S. '' 32- 1154(A)(3), namely, Rule R4-9-108, Ariz. Admin. Code; 32-1154(A)(7); and, 32-1154(A)(23). 7. On July 28, 1998, Personalized Roofing answered the citation. Mr. Oclassen stated in pertinent part, “Personalized Roofing is working with [Southwest]...Max[imum] 2 weekends from 7/25/98 [to complete corrective work].” 8. On August 25, 1998, the Registrar issued a Notice of Hearing. Under the authority of A.R.S. ' 41-1092.01, the hearing was assigned to the Office of Administrative Hearings. 9. On October 27, 1998, Mr. King conducted a prehearing inspection. Personalized Roofing had previously been informed of this inspection. Neither Mr. Oclassen nor a representative of Personalized Roofing attended the prehearing inspection. 10. On October 28, 1998, at 12:02 P.M., Mr. Oclassen requested, by fax, permission to appear at the hearing by telephone. The Office of Administrative Hearings telephoned Mr. Oclassen and informed him he could appear by telephone. Earlier that morning, Mr. Oclassen had requested a continuance of the hearing because he was sick (“I have a bad flu bug.”). The request was denied, and Mr. Oclassen was so informed, hence his 12:02 P.M. fax. In his fax, Mr. Oclassen stated, “Project: Will be complete in one work week.” 11. The Office of Administrative Hearings telephoned Mr. Oclassen twice between 1:20 P.M. and 1:30 P.M. immediately prior to the commencement of the hearing, to allow Mr. Oclassen to appear by telephonic means. Only Mr. Oclassen’s voice message service was reached on both calls. 12. The hearing started at 1:30 P.M. and concluded at 2:30 P.M. Southwest appeared and presented the testimony of Messrs. Thomas D. Smith, its Construction Manager; Mr. King; and, Mr. William E. Tait, owner of the buildings. 13. That afternoon, Mr. Oclassen called the Office of Administrative Hearings and stated he had fallen asleep due to his medication. THE CORRECTIVE WORK A. The Project 14. During the summer of 1997, pursuant to a Subcontract Agreement with Southwest, who was the general contractor, Personalized Roofing installed roofing on three buildings located at 20241, 20211, and 20229 North 67th Avenue, Glendale, Arizona. The amount of the subcontract was $61,500.00. 15. These buildings are part of a commercial retail center known as The Legends. Stores and offices are open in this center, attracting shoppers and customers. B. The Deficiency 16. In January, 1998, the owner of the center noted that many roofing tiles appeared to be loose and not to have been nailed, and he called Southwest. It was confirmed that many tiles had not been nailed at all and were hanging loose on the roofs. 17. The tiles are concrete roofing tiles, with dimensions of 9 inches by 14 inches, and each weighs about 10 lbs. Each tile has two perforations for nails. 18. Based on the pitch of the roofs, decking and exposure to varying wind speeds, the installation manual (MONIER/LIFESTYLE Installation Manual) requires that the first three courses of tile all around the roof (the perimeter tile courses), including all hips, ridges, and edges of eaves and gables, must be nailed to the structure with nails or crews that penetrate ¾ inch or full deck thickness, whichever is less. In all other tile courses, every other tile must be nailed, and partial tiles at terminations must be fastened with tile adhesive or drilled and nailed. See, Complainant’s Exhibit No. 1. Nail penetration of at least ¾ inch without protrusion is mandated. Where nailing is required, at least one nail per tile must be used, and the nail must be an 11 gauge corrosion-resistant box nail. 19. In several areas of the three roofs, due to the nature of the structures, all the tiles must be nailed (for example, overhangs and “turret-like” structures on the roof). 20. Southwest obtained a written professional opinion from Integrity Roofing, Inc. stating that as of October 28, 1998, although there was “evidence of compliance in some areas,” “the tile areas are not installed per the manufacturer’s specifications,” and “missing tiles, broken tiles and loose tiles are also observed.” See, Complainant’s Exhibit No. 1. 21. Mr. King observed during both the jobsite and the prehearing inspection that the majority of tiles on the three roofs, which were required to be nailed or fastened by the manufacturer’s specifications, had not been nailed or fastened. He also noted cracked and missing tiles. 22. The tile nailing and fastening have not been fully completed on any of the three roofs. C. The Efforts To Complete The Corrective Work 23. Between January, 1998 (before the complaint was filed with the Registrar), and October, 1998, Mr. Thomas D. Smith, Southwest’s Construction Manager who dealt with Personalized Roofing, called Mr. Oclassen on numerous occasions to have the corrective work done. Mr. William E. Tait, the owner of the center, has also called Mr. Oclassen numerous times. These calls have been made to obtain Personalized Roofing to complete the corrective work. The calls continued until a couple of hours before the hearing. 24. Personalized Roofing did some corrective work in July, 1998, after the Registrar had issued the citation, and again on October 27, 1998, on the eve of the hearing. 25. Mr. King testified that not much work had been done since he had visited the buildings on May 14, 1998. Many tiles remained unnailed. Missing and cracked tiles were visible. Some piles of tiles which he had seen in May were still in the same condition on October 27, 1998, indicating that these tiles had not been moved. In his opinion, the corrective work has not been completed, although Personalized Roofing has had five months to complete it. 26. On October 27, 1998, Mr. King observed a crew of four workers (three were employees of Personalized Roofing, and one had been obtained from Apache Roofing). This crew arrived without ladders or access keys, although it had some safety belts and lanyards. The crew borrowed ladders and obtained access keys from Southwest. Once on the roofs, in Mr. King’s opinion, their equipment was “inadequate,” and they were working in an unsafe manner. Two workers were seen working in a perilously unsafe manner - one worker was holding another worker with a rope, as the other worker worked on the slope of the roof, and if that worker had begun to fall, the other one likely would not have been able to stop the fall. 27. On the morning of the hearing, a banking tenant of the center called Mr. Tait to inform him that a tile had fallen off the roof and had almost struck the child of a customer using the ATM machine outside the bank office. PERSONALIZED ROOFING’S DISCIPLINARY RECORD 28. The Registrar’s records show that during the past two years Personalized Roofing’s License No. 119498, Class L-42, has been suspended twice due to complaints (Dockets No. 97-2645 and M98-0212). The most recent licensing suspension occurred between May 15, 1998, and June 8, 1998. During this same period, twelve complaints have been filed against Personalized Roofing, of which four have been confirmed. CONCLUSIONS OF LAW The issues are whether Personalized Roofing violated A.R.S. '' 32- 1154(A)(3), namely, Rule R4-9-108(A), Ariz. Admin. Code; 32-1154(A)(7); and, 32-1154(A)(23). APPLICABLE STATUTES AND RULES A.R.S. ' 32-1154(A) provides in the pertinent subsections: “A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: *** 3. Violation of any rule adopted by the registrar. *** 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. *** 23. 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. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held pursuant to the provisions of this article.”

Registrar’s Rule R4-9-108(A), Ariz. Admin. Code, states “All work shall be performed in a professional and workmanlike manner.” CONCLUSIONS OF LAW 1. Personalized Roofing violated A.R.S. ' 32-1154(A)(3), namely, Rule R4-9-108(A), Ariz. Admin. Code. The Registrar is charged with determining professional workmanship of construction, or whether a licensed contractor performed “in a good workmanlike manner and in a manner befitting a skilled contractor.” Reliable Electric Co. v. Clinton Campbell Contractor, Inc., 10 Ariz. App. 371, 374, 459 P.2d 98 (1969); see, J. W. Hancock Enterprises, Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (1980); A.R.S. ' 32-1154(A)(3); Rule R4-9-108(A), Ariz. Admin. Code. The evidence establishes that the work was not done in a professional and workmanlike manner. 2. Personalized Roofing violated A.R.S. ' 32-1154(A)(7). Its lack of good workmanship in failing to nail or fasten the roofing tiles, as required, in several areas is clear, obvious and sizable. 3. Personalized Roofing violated A.R.S. ' 32-1154(A)(23). Personalized Roofing has had five months to complete the required corrective work. The efforts it has made to undertake the work have been last-minute and nominal. Personalized Roofing had the opportunity to complete all the work in July, 1998, and avoid the hearing, an opportunity lost. 4. The Registrar “may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of” A.R.S. ' 32- 1154(A)(23). A.R.S. ' 32-1154(D). A licensee’s failure to pay a civil penalty Aresults in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty.” A.R.S. ' 32-1154(D). A civil penalty in the amount of $200.00 is merited given Personalized Roofing’s continuing failure to complete the ordered corrective work expeditiously and in timely manner, placing shoppers and customers at risk of physical harm and injury. 5. Personalized Roofing’s “prior disciplinary record of final agency orders, if any, may be considered...in aggravation when determining an appropriate disposition of this matter.” Notice of Hearing, page 2 (July 14, 1998); Rule R4-9-117 (Prior Record), Ariz. Admin. Code. Personalized Roofing’s recent licensing disciplinary record shows two suspensions resulting from complaints and the filing of more than a small number of complaints. Further, Personalized Roofing did not attend either the jobsite or the prehearing inspection showing a lack of cooperation with this proceeding. 6. The Registrar may “permanently revoke” a contractor’s license if the licensee “commits any of the acts or omissions set forth in“ A.R.S. ' 32-1154(A). A.R.S. ' 32-1154(B). Revocation of a license must be carefully considered, as it is a severe licensing sanction. The preponderance of the evidence[2] supports the revocation of Personalized Roofing’s License No. 119498, Class L-42. RECOMMENDED ORDER It is recommended that the Registrar: 1. Revoke Personalized Roofing’s License No. 119498, Class L-42, unless and until the Registrar receives written notification that Personalized Roofing has completed, or has caused to be completed by other licensed roofing contractors, both in a good workmanlike manner and with public safety, not later than the effective date of the Registrar’s order of revocation, the following: (a). nailing and fastening according to the manufacturer’s specifications the roofing tiles on the three buildings, and, (b). replacing all missing, broken and cracked roofing tiles. 2. Assess Personalized Roofing a civil penalty in the amount of Two Hundred Dollars and No Cents ($200.00), which shall be deposited in the Residential Contractors’ Recovery Fund not later than the effective date of the Registrar’s order of assessment. If Personalized Roofing complies with these directives, the Registrar shall close Citation and Complaint No. 98-2346. SUBMITTED this 2d day of November, 1998.

George A. Schade, Jr. Administrative Law Judge

The original Recommended Decision and Order was mailed on November 3, 1998, for distribution to the parties, to:

Michael Goldwater Arizona Registrar of Contractors 800 West Washington, 6th Floor Phoenix, Arizona 85007-2940

George A. Schade, Jr. ----------------------- [1]Administrative Law Judge Schade was substituted for Judge Brian Brendan Tully. [2]The preponderance of the evidence is the standard of proof on all issues. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996), rev. denied (1997); Troutman v. Valley Nat. Bank of Arizona, 170 Ariz. 513, 826 P.2d 810 (App. 1992). 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).

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