ALJDEC

00F-0237-ROC · Registrar of Contractors · 2000-06-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 29, 2000 APPEARANCES: Complainant : Rae Tafoya appeared at the hearing pro se. Respondent : Jerry L. Thomas, Qualifying Party and Owner, represented City Wide Enterprises. Registrar of Contractors : Inspector Phil Coscia. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________

A hearing was conducted by the undersigned Administrative Law Judge to determine whether the Citation and Complaint issued by the Registrar of Contractors on April 10, 2000 was supported by a preponderance of the evidence. The parties were afforded the opportunity to submit documentary proof, to render testimony, and to make argument, in accordance with A.R.S. ( 41-1092.07 and A.A.C. R2-19-116. Evidence and testimony having been received at the hearing and based upon the entire record, the undersigned Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT 1. Respondent is an Arizona sole proprietorship doing business as City Wide Enterprises, holding a Class C-42 license (Roofing Contractor) issued by the Registrar of Contractors.

2. Respondent’s liabilities have been discharged in the United States Bankruptcy Court, District of Arizona, Phoenix Division by order issued on December 7, 1999, under section 727 of Title 11, United States Code, a Chapter 7 bankruptcy. Complainant was identified as creditor in the discharge proceedings.

3. On March 20, 1997, Complainant and Respondent entered into a written contract whereby the Respondent contractor agreed to furnish material and perform services necessary to the construction of a new roof at Complainant’s residence. In consideration for Respondent’s efforts to fulfill its obligations under the agreement, Complainant has paid Respondent $7,000. The work on the roof was completed on April 2, 1997. Thereafter, Complainant requested Respondent to make certain repairs to the roof, to no avail. Complainant manifested disconcertion over the work and repair efforts, or lack thereof, by filing a complaint with the Registrar of Contractors. A hearing was conducted before an Administrative Law Judge at the Office of Administrative Hearings on May 13, 1999 which resulted in a Recommended Decision. The Registrar adopted the Administrative Law Judge’s Recommended Decision and issued an Order on June 3, 1999 whereby the Respondent contractor’s license was effectively suspended pending the effectuation of the repairs delineated by the Administrative Law Judge. To date, the repairs have not been made.

3. Subsequent to the Registrar’s issuance of the June 3, 1999 Order, Respondent filed his petition for a Chapter 7 bankruptcy. This resulted in the Registrar’s closing of the then pending file, Complainant having been provided written notice thereof on September 21, 1999.

4. In the interim, Complainant had filed the present complaint on July 21, 1999. The complaint, having been closed on September 21, 1999, was reopened on December 16, 2000. The Complainant identified additional items in her complaint whereof she believed a deficiency or deficiencies had resulted from Respondent’s efforts.

5. A job site inspection was conducted by a Registrar of Contractors Inspector on January 7, 2000, which resulted in the issuance of a “Corrective Work Order” on March 5, 2000. Specifically, the “Corrective Work Order” indicated that several of the specified complaints were warranted, as manifesting workmanship deficiencies, each requiring correction or replacement. The order afforded Respondent 15 calendar days within which to make certain repairs.

6. Complainant submitted a Request for Hearing on March 23, 2000, reaffirming disconcertion over Respondent’s failure to have performed in a workmanlike manner and alleging that Respondent had not addressed the issues to which it had been directed in the “Corrective Work Order.” Therefore, the Registrar issued a Citation and Complaint against Respondent on April 10, 2000.

7. The weight and sufficiency of the evidence of record establishes that the following construction deficiencies which necessitate repair and correction are attributable to the workmanship of Respondent, based upon the Inspector’s review of the conditions. For the sake of consistency, the numbered items delineated correspond to the list identified by the Registrar in the “Corrective Work Order” of March 5, 2000: Item No. 1: roof leaks at the open seam visible at the north parapet wall above the family room and the kitchen; Item No. 2: roof leaks at the northeast corner of the roof above the laundry room and the bathroom; the cant-strip extending up the parapet wall does not lap onto the base sheet; Item No. 3: the water ponds and leaks over the northwest corner and center of the ceiling in the master bedroom manifest deficiencies in workmanship; Item No. 4: the plywood to the roof over the master bath tub and the drywall at the southwest corner of the tub evidence workmanship deficiencies thereby resulting in water leakage; and Item No. 5: the seams in the roof are loose midway between the A/C unit and the master bedroom thereby allowing water leakage.

8. Respondent has no assets, according to Respondent’s characterization of his condition, with which to address Complainant’s demands. Therefore, it would be fruitless to direct Respondent to hire an alternative contractor(s) to make the necessary corrections.

9. The evidence clearly establishes that the workmanship of Respondent was poor and devoid of compliance with standards in the areas of deficiency.

10. The evidence further establishes that Respondent is operating as a contractor in the state of Arizona with inadequate capitalization to protect the public from its deficiencies in construction. Respondent basically has conceded deficiencies in the construction of the roof, while declaring his inability financially to repair and/or replace the deficiencies in construction.

CONCLUSIONS OF LAW 1. The evidence of record has sufficiently established that Respondent has violated that which is set forth at A.R.S ( 32-1154 (A) (7), (23) and (3); specifically, Rule R4-9-108 (Workmanship Standards).

2. The burden of proof generally at an administrative hearing falls to the Complainant. Utah Construction Company v. Berg et al., 68 Ariz. 285, 292, 205 P. 2d 367 (Ariz. 1949). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985).

3. By a preponderance of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (7) as charged in the Citation and Complaint. It has been shown that Respondent has committed a wrongful or fraudulent act resulting in injury to another person, namely, Respondent’s failure correctly to perform the work for which Respondent was contractually obligated, without legal excuse or defense.

4. By a preponderance of the evidence, Complainant has established that Respondent intentionally failed to comply with the directives of the “Corrective Work Order” issued by the Registrar of Contractors in violation of A.R.S ( 32-1154 (A) (23). Respondent failed to do the work for which Respondent was contractually obligated in a workmanlike manner and neglected to correct the defects as directed by the Registrar within the time afforded Respondent to make the necessary replacements or repairs.

5. By a preponderance of the evidence, taken as a whole, Complainant has established that Respondent failed to perform the work undertaken in a professional and workmanlike manner in violation of A.R.S ( 32-1154 (A) (3), namely, Rule R4-9-108.

6. Respondent’s failure to effect a repair of the deficiencies of which it had been given notice, in a workmanlike manner, timely performed, constitutes a statutory violation for which a fair and just disciplinary penalty ought to be imposed. Respondent should be required to arrange for replacement and/or repair of the deficiencies outlined herein, by qualified subcontractors where appropriate, to ameliorate the harm done to the Complainant homeowners, which harm is evident under all the salient facts and circumstances presented in this case.

7. However, the Administrative Law Judge acknowledges Respondent’s admission that it is operating without adequate assets to protect the public in the event of a finding that Respondent’s workmanship falls below standards. Therefore, it would be futile to direct Respondent to make the necessary corrections.

RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that Respondent’s Class C- license be revoked on the effective date of the Order entered in this matter. Set forth this 29th day of June in the year 2000.

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

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

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826