ALJDEC

00F-2427-ROC · Registrar of Contractors · 2000-09-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 18, 2000 APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its president, Chester Marvin. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant retained Respondent for the purpose of replacing a specified skylight plastic dome. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. On or about May 1998, Complainant had a new roof installed on his home. b. Sometime in the very early part of the year 2000, Complainant observed that there was a hole in the plastic dome on one of the skylights installed on his roof. c. Complainant contacted Respondent for a bid to replace the above- described skylight plastic dome and on February 10, 2000, Respondent replaced the damaged plastic dome. During the replacement of the dome, Respondent observed that a bullet had apparently caused the damage. d. On or about March 4, 2000 Complainant observed that he had a water leak in the area directly below the skylight wherein Respondent had replaced the plastic dome. The water leak caused specified drywall staining and damage in the area of the interior skylight shaft. e. Shortly after observing the water leak and interior damage, Complainant contacted Respondent regarding the water leak and Respondent returned to the home. Despite the fact that Respondent did not believe the leak was attributable to its workmanship, it installed some type of “glazing tape” to the area where the top of the plastic dome meets the top of the metal frame for the skylight. f. Complainant testified that the roof never leaked prior to the installation by Respondent of the new skylight plastic dome and has not leaked since Respondent came back and installed the aforementioned “glazing tape.” In this regard, this Tribunal takes appropriate notice of the fact that it has rained in the greater Phoenix area between the dates of Respondent’s remedial work and the date of the instant hearing. g. When Respondent refused to repair the interior drywall damage, Complainant filed the instant complaint with the Registrar of Contractors on April 11, 2000. The complaint was assigned to an inspector for the Registrar of Contractors, who scheduled a jobsite inspection to determine the merits of said complaint. h. On April 28, 2000 the assigned inspector for the Registrar of Contractors conducted a jobsite inspection. At the time of said inspection, which was subsequent to the date that Respondent had completed the above-described “glazing tape” remedial work, the inspector performed a water test on the skylight and was unable to produce any interior water leak. e. Subsequent to concluding the jobsite inspection, the inspector issued a directive to Respondent, which required that Respondent repair the interior drywall damage. Respondent disagreed with the findings of the Agency inspector and thus, refused to comply with the Agency directive and requested that the matter go to a hearing.

3. It is determined and held that by agreeing to install new skylight domes on an existing skylight, Respondent effectively accepted said surface and system as being adequate to support a workmanlike result. Moreover, notwithstanding speculative testimonial evidence from Respondent that indicates the water leakage experienced by Complainant could have come from some area of the roof other than the skylight, it is determined and held that the weight of the overall evidence of record was sufficient to support a finding that the leak was attributable to the work performed by Respondent.

4. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the to repair the interior water damage on the skylight shaft. It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and, in that event this Citation, together with the Complaint upon which it is based, shall be closed.

Done this day, September 22, 2000

______________________________________ Mark A. Silver 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