ALJDEC

00F-G0262-ROC-res · Registrar of Contractors · 2000-09-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 26, 2000 APPEARANCES: Complainant appeared through its president, Jim Allen and Respondent appeared through one of its partners, William Newsome. 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. The Registrar of Contractors, pursuant to an Order dated June 29, 2000, has determined there is no U.S. Bankruptcy Court automatic stay preventing this matter from proceeding forward.

2. Respondent was retained by Complainant for the purpose of installing a new roof system on Complainant’s new home construction project. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

3. The weight of the credible evidence of record was sufficient to support a finding that the following constitute workmanship deficiencies attributable to Respondent:

a. There are several areas of the roof that evidence excessive ponding, beyond the tolerances allowed by minimum industry standards. The affected areas are in the walking deck on the south portion of the home and specified areas of the rear walking deck and rear portion of the roof. b. There are excessive wrinkles in the roofing felts. c. Wall flashings were not properly completed due to omission of roofing felts in said flashed areas. d. The applicable written contract calls for a “grit” finish on the walking decks. Contrary to the applicable contract specification, the walking decks appear to have a smooth finish, due to the fact that there is either no “grit” type material on the walking deck surface or an inadequate application of “grit” type material for said walking surfaces. e. Roof has leaked in the past, causing a degree of interior water damage, but all leaking has been terminated due to patching remedial work performed by Respondent and Complainant. In addition, Complainant testified that he has repaired all interior water damage.

4. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. Notwithstanding the terms of said Agency directive, Respondent failed to comply with the terms and conditions set forth therein. It should be noted, however, that Respondent disagreed with the inspector’s findings and requested an administrative hearing.

5. Respondent contends that certain aspects of the construction of the home and the location for the scuppers may be contributing to a number of the problems referenced in the foregoing Findings of Fact. Notwithstanding, the fact that there may be movement in the home and the scuppers may not be placed in the ideal location, it is clear that Respondent had a full opportunity to examine the home prior to agreeing to perform the roofing work. Moreover, Respondent supplied the scuppers for the job and installed same. Under all of the facts and circumstances presented herein, Respondent is found to have accepted the surface upon which it installed the roof system, as well as all other relevant conditions, as being adequate to support a workmanlike result and, as such, should properly be held responsible for any failures in his roofing system to comply with minimum standards for good and proper workmanship.

6. Complainant claims entitlement to a cap sheet or specified coating on top of the two (2) ply roofing system that Respondent installed. Although a cap sheet or some form of roof coating is normally installed over a two (2) ply built-up roof system, a review of the applicable written contract reveals that same does not mention the installation of a cap sheet or specified roof coating.

7. The contract, as written, was shown to have been accepted by Complainant’s superintendent (agent). Moreover, Respondent presented uncontroverted testimony that, at the time of preparing a bid for the roof project, Complainant’s superintendent advised that he did not want Respondent to install a cap sheet or coating over the roof, indicating that Complainant would install the top coat or cap sheet after the stucco work was completed on the home.

8. Notwithstanding Complainant’s contention that it never agreed to the terms of the contract or that it intended to install the cap sheet, Complainant is bound by the acts and representations of its agent. Under all of the facts and circumstances presented herein, Complainant failed to sustain the requisite burden of proof required to establish any violation of the State’s Contracting laws due to the fact that Respondent did not install a cap sheet on the roof.

9. Complainant testified that in the course of trying to get the home completed, in addition to the aforementioned patches to the roof, it has applied some form of a “temporary” coating to the roof, in order to prevent any further water leakage into the interior of the home. The coating of the roof was apparently performed after Respondent failed to comply with the above-described Agency directive and without first having others complete all necessary remedial work. Thus, under these facts and circumstances, Respondent shall not be responsible for any damage that may be caused to Complainant’s roof coating, in the event that repairs are performed pursuant to the terms and conditions of the instant Decision and Order. The coating of the roof and any other roof repairs previously accomplished by Complainant shall remain the sole responsibility of Complainant.

10. It is important to note that the weight of the evidence of record was sufficient to support a finding that Respondent had no notice of the deficiencies on the roof until after Complainant had already filed the instant complaint with the Registrar of Contractors. Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. Complainant’s failure to advise Respondent of the deficiencies in the workmanship, prior to filing the complaint with the Registrar of Contractors, is viewed as a matter in mitigation for any determination of disciplinary penalties to be imposed herein.

11. 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.

12. Notice is hereby taken of official Registrar of Contractors’ public records, which reveal that Respondent’s contracting license has been canceled since October 8, 1999. Such license cancellation does not preclude this tribunal from conducting these administrative proceedings nor from issuing separate disciplinary orders. Moreover, Respondent’s existing canceled license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to undertake and complete necessary remedial work in order to avoid a suspension of an already canceled license.

13. In light of the fact no evidence was presented regarding any costs sustained by Complainant regarding the repairs of any water damaged interior areas, any continuing claim by Complainant for monetary restitution in this regard must be brought, if at all, before a civil court of competent jurisdiction.

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 and as long as the Registrar of Contractors is satisfied that there is no Bankruptcy Court stay that prevents it from taking disciplinary action against Respondent, it is recommended that Respondent’s Class C-42 license shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent causes a properly licensed contractor to accomplish appropriate and effective remedial work on the roof deficiencies described in Finding of Fact 3 (a) through 3 (d),above, on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place. It is further recommended, if the alternative penalty is applicable, that Respondent pay the sum of $125.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent , as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered.

Done this day, October 2, 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