Notice of Review and Appeal Rights by CdL3Ox

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									      BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
                    STATE OF OREGON
                                   for the
                      CONSTRUCTION CONTRACTORS BOARD


In the Matter of the Complaint of:

FEYNMAN GROUP INC.,                                             Complaint No: 133940-302
Complainant

vs.
                                                                 FINAL ORDER
VENETA ROOFING CO.,
Respondent



                                      HISTORY OF THE CASE
       On June 3, 2008, the complainant timely filed this complaint pursuant to ORS 701.140 and
701.143, alleging that respondent performed improper work and breached their contract for roofing
work on complainant’s commercial structure. The respondent was licensed at the time the work
was performed. Complainant also filed a Statement of Damages (Exhibit 23) seeking a total of
$1,387.09, the contract price that complainant fully paid respondent. The Construction Contractors
Board (CCB) reviewed the matter and issued a Proposed Order (Exhibit 29-31) for respondent to
pay complainant $1,437.09 inclusive of complainant’s processing fee. Respondent timely filed a
request for a hearing.

       On August 15, 2008, the CCB referred this matter to the Office of Administrative Hearings
to conduct binding arbitration of the matter, pursuant to ORS 701.148(1), and subject to the
provisions of ORS 701.148(4). Respondent timely filed a request for the matter to be heard as a
contested case under ORS Chapter 183. Administrative Law Judge (ALJ) David Marcus was
assigned to hear the case.

       The hearing in this matter was conducted on November 3, 2008, in Eugene, Oregon. Notice
of Hearing was served on the parties by the Office of Administrative Hearings, in accordance with
ORS 701.080. The complainant appeared through its president, Scotty McConnell. The
respondent appeared through its president, Russell Rich, and was represented by counsel, Douglas
E. Minger. Mr. McConnell and Mr. Rich both testified. Respondent’s office manager, Christine
Barnes, also testified.

       Pursuant to OAR 812-009-200(1), the Administrative Law Judge may issue a final order
because the total amount claimed to be due and owing to any complainant in the hearing does not
exceed $2,500.00.



Feynman Group Inc. v. Veneta Roofing Co., CCB complaint no. 133940-302                     Page 1 of 4
                                                 ISSUES
        1. Whether respondent performed improper or negligent work or otherwise breached the
parties’ contract for roofing repairs; and if so,

       2. Whether complainant has paid respondent more than the value of work properly
performed by respondent.
                                       EVIDENTIARY RULING
       Exhibits 1 through 73 were all admitted into evidence without objection. In addition,
Exhibits C1 and R1 through R10 were also admitted into evidence. The hearing was concluded
and the record was closed on November 3, 2008. The findings of fact are based on full
consideration by the Administrative Law Judge of the entire evidentiary record.

                                         FINDINGS OF FACT
        1. On or about September 19, 2007, complainant entered into a written contract with
respondent to re-roof a section of roofing on complainant’s commercial structure, located at 1177
Pearl Street in Eugene. The contract price was $1,387.09. The work involved application of
T.P.O. membrane on a section of flat roofing approximately 267 square feet. Complainant initiated
repair work because the roof was leaking. (Ex. 4-11; testimony of Mr. McConnell, Mr. Rich.)

        2. Respondent completed the contracted work on September 22, 2007 and complainant
paid respondent in full under the contract. During the course of the work, respondent installed a
boot around an existing drain. Unknown to the respondent, complainant had previously
decommissioned the drain by plugging it from the interior when another contractor had performed
work and altered the roof to drain at one end into a gutter. When that previous work was done, the
existing drain was not covered over or capped, and the existing drain was at a low point on the
roof. (Ex. 13; testimony of Mr. McConnell, Mr. Rich.)

       3. On September 24, 2007, complainant contacted respondent to report that the new roof
was leaking. Respondent sent a man out that day. The roof was swept of leaves and water but
respondent’s man noted that water had pooled around the drain. Respondent later contacted
complainant and advised that it would complete repairs but that the drain must be unplugged so the
roof could dry out sufficiently for the repair to be performed. Respondent advised that the drain
work would need to be done by a plumber and to contact respondent after the drain was unclogged.
(Ex. C1; testimony of Ms. Barnes, Mr. Rich.)

       4. At the end of November 2007, Ms. Barnes called respondent again to report that the roof
was leaking. Mr. Rich went to the building within a day or two and had contact with a different
employee. Mr. Rich noted that there was still a pool of water around the existing drain, and he
advised complainant’s employee that he could not make a repair until the drain was cleared. Mr.
Rich also specifically told complainant not to call him again until the drain was cleared, as he was
wasting time coming to the building when it was not possible to make a repair due to the standing
water. (Testimony of Ms. Barnes, Mr. Rich.)

        5. Complainant did not contact respondent again and did not take any measures to repair
the roof until February 2008. On February 26, 2008, Hatten Roofing came to the building at
complainant’s request. On that date the roof was dry and Hatten determined that the seams near the

Feynman Group Inc. v. Veneta Roofing Co., CCB complaint no. 133940-302                   Page 2 of 4
existing drain were not properly welded and sealed. Hatten sealed the seams and did not charge
complainant for that work. Hatten also recommended that the entire membrane installed by
respondent be removed and replaced along with replacement of the roofing on the entire building.
(Ex. 12; testimony of Ms. Barnes.)

        6. Hatten’s work on February 26, 2008 to weld and seal the seams was effective and
complainant did not experience any further leakage issues. Complainant later contracted with
Hatten to tear off and replace roofing installed by respondent as well as the roofing on another
section of the roof. Still later, complainant contracted with Hatten to replace all remaining areas of
the roof. When Hatten replaced the section of roofing installed by respondent, it also built up the
roof surface to drain to the guttered end of the building and it covered over the existing drain that
was not functional. (Ex. 12; testimony of Mr. McConnell).

                                      CONCLUSIONS OF LAW
       1. Respondent did perform improper or negligent work by failing to properly weld and seal
the seams of the new roofing membrane. However, complainant has not shown that it suffered
damages as a result.

       2. Complainant has not paid respondent more than the value of work properly performed
by respondent.

      3. Complainant has not established a valid complaint against respondent under OAR 812-
009-0100 and 812-004-0535, and the complaint must therefore be dismissed.

                                                OPINION
        The person making the complaint has the burden of proving the complaint. ORS
183.450(2); Salem Decorating v. National Council on Comp. Ins., 116 Or App, 170 (1992), rev den
315 Or 643 (1993). In a contested case proceeding, the standard by which a party must prove the
facts asserted is by a “preponderance of the evidence.” ORS 183.450(5); Gallant v. Board of
Medical Examiners, 159 Or App 175, 180 (1999). Under OAR 812-009-0100, complainant has the
burden to submit sufficient credible evidence to prove that complainant suffered damages, that
respondent caused those damages and that the monetary value of those damages is substantiated on
the record. “[I]f the complainant fails to carry this burden of proof, the administrative law judge
shall dismiss the complaint.”

       In order for complainant to prevail in this case, complainant was required to show that it
received no value from the work respondent performed. Complainant has failed to make such a
showing. There are conflicts in the testimony regarding what Mr. Rich and Ms. Barnes
communicated to each other. However, it is not necessary to resolve those conflicts because the
evidence establishes that the roof, once the seams were repaired by Hatten at no cost, was
functional and complete in accordance with the parties’ contract.

        Complainant presented evidence that it incurred additional cost (some portion of the initial
contract with Hatten which included more work than just the section of roofing respondent
installed, and a different scope of work than respondent’s contract) to fully remove and replace the
section of roofing respondent installed. What complainant failed to show, however, was that

Feynman Group Inc. v. Veneta Roofing Co., CCB complaint no. 133940-302                     Page 3 of 4
respondent’s work was improper in any way other than the seams that were repaired at no cost.
There was no evidence presented at the hearing to support a determination that the roof as installed
by respondent was improperly installed, that it did not meet industry standards or that it did not
meet the terms of the parties’ contract. I therefore conclude that complainant has failed to meet its
burden of proof to show that its complaint is valid.

                                                ORDER
        This complaint is dismissed on the merits.



                Dated this 7th day of November, 2008




                                                    David Marcus, Administrative Law Judge




APPEAL RIGHTS: You are entitled to request judicial review of this order in accordance with
the provisions of ORS Chapter 183. Judicial review may be obtained by filing with the Court of
Appeals, Salem, Oregon. A petition for review must be filed within 60 days from the date of
mailing this order.




Feynman Group Inc. v. Veneta Roofing Co., CCB complaint no. 133940-302                    Page 4 of 4

								
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