ALJDEC

00F-H0220-ROC · Registrar of Contractors · 2000-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 23, 2000. APPEARANCES: The Complainants, Linda and Larry Parish, appeared personally. The Respondent appeared through its president and qualifying party, Rick Devine. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

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

FINDINGS OF FACT

1. Respondent is the holder of License Number 080540, a Class C-42 residential roofing contractor’s license, issued by the Registrar of Contractors. 2. In February of 1997, the Complainants sustained wind damage to the roof of their residence. Respondent was referred to them by their insurance carrier to perform the roof repairs. 3. Respondent re-roofed the North side of Complainants’ roof. Complainants considered re-roofing the entire roof but elected to do only the damaged areas. Complainants believe that Respondent did an excellent job in 1997. 4. In 1997, Respondent used Firehalt Oakwood shingles. 5. In 1999, Complainants had a roof leak that caused water damage in two closets. Rather than repair only the affected area, the Complainant’s decided to re-roof the South side of the roof. 6. In October of 1999, Complainants contacted Respondent. Respondent’s owner and qualifying party, Rick Devine, viewed the roof and assured them that he could obtain shingles that matched the North side roof shingles that Respondent had previously installed. 7. The first bundles of new shingle brought to the jobsite did not come close to matching the North side roof shingles. Respondent’s employees removed them from the residence and returned them to the supplier. 8. When the Respondent returned and began to install the replacement shingles, Complainants recognized a color difference between the new shingles and the North side roof shingles. 9. Respondent replied to Complainants that it had used the same product as the North side roof shingles, and further stated that the color variation was due to the new shingles coming from a different dye lot than the existing shingles. 10. Because of the color variance issue, the roofing work was stopped by the Complainants. The Complainants caused another roofing subcontractor to cover the roof for protection from the elements. There are bundles of shingle still loaded on Complainants’ roof as of the hearing date. 11. Respondent sent samples of the existing North side roof shingles to the manufacturer. On or about April 19, 2000, the manufacturer of the Firehalt Oakwood shingles wrote a letter to Respondent’s president and qualifying party and advised that the manufacturer had changed the blends of its Oakwood shingles in response to customer demands. The manufacturer’s quality assurance manager reported that the submitted samples appeared to be from the old (pre-1997) blends. As of April 19, 2000, the manufacturer no longer made the old version of the Oakwood shingle. 12. The manufacturer of the Oakwood shingles is no longer in business. Respondent has been unable to locate any pre-1997 Firehalt Oakwood shingles. 13. The Complainants subsequently filed a Complaint with the Registrar of Contractors alleging that Respondent violated provisions of the State’s contracting laws on the project. 14. In response to the filed complaint, the Registrar’s assigned Inspector performed a jobsite inspection at Complainants’ residence on April 21,2000, to view the field conditions. 15. The April 21, 2000 inspection resulted in the issuance of a Corrective Work Order dated May 16, 2000, which required Respondent to timely comply with the following corrective action:

Install shingles that match existing as close as possible. Firehalt 2000 Oakwood is a close match to existing.

16. Respondent has not complied with the Registrar’s written directive. Respondent is found to have no factual or legal justification for not complying with that directive. Respondent is responsible for complying with the Corrective Work Order. 17. There are workmanship issues concerning Respondent’s work. However, the Inspector did not address those issues because work had stopped on the project and it was premature to require Respondent to perform such remedial repairs when they would normally be performed prior to completion. An example of deficient work that should be addressed is the substandard stapling of the roof. 18. Respondent’s failure to adequately match the remaining existing roof shingle and its failure to comply with the Registrar’s written directive are wrongful acts which have substantially injured the Complainants. … … …

CONCLUSIONS OF LAW

1. The evidence of record is adequate to establish that the Respondent has violated the provisions of A.R.S. § 32-1154(A)(7)(23) and (3); namely Rule R4-9-108. 2. Pursuant to A.R.S. § 32-1154(D), the Registrar may impose a civil penalty of not to exceed $500.00 on a contractor found to have violated the provisions of A.R.S. § 32-1154(A). The evidence of record supports the Registrar’s imposition of a civil penalty on Respondent.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the entered Order in this matter that Respondent’s Class C-42 license be suspended until the Registrar of Contractors receives written proof that Respondent has complied with the Registrar’s Corrective Work Order dated May 16, 2000, by installing shingles that match the existing shingles as close as possible. It is further recommended that if Respondent properly accomplishes the above described corrective work on or before the effective date of the entered Order in this case, then the above-provided license suspension shall not take place and the citation and complaint in this matter shall be closed. It is further recommended, in addition to the above-provided penalty, if any, that Respondent pay the sum of $200.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of that civil penalty on or before 30 days following the effective date of the entered Order in this matter shall result in the automatic revocation of Respondent’s contractor 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. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. Done this day, November 7, 2000.

______________________________________ Brian Brendan Tully Administrative Law Judge

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

Registrar of Contractors Michael P. Goldwater, Director 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