ALJDEC

00F-H0244-ROC · Registrar of Contractors · 2000-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 27, 2000. APPEARANCES: The Complainant, Terry Kennedy, appeared personally. The Respondent was represented by its president and qualifying party, Gary MacGregor. 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. Complainant hired Respondent to construct the basement portion of his new residence in Kingman, Arizona. 2. Respondent constructed the block wall of the basement, sealed the walls, backfilled the areas and framed the basement. 3. Upon completion of the basement, Complainant had approximately 1,300 square feet of livable space in that portion of his home. 4. After moving into his residence, Complainant experienced water damage to the interior of the basement. The water damage has caused mold to grow in the basement. Because of the present water damage and the real threat of future water damage, Complainant’s basement is unlivable at this time. 5. Complainant filed a complaint with the Registrar of Contractors alleging that Respondent violated applicable state contracting laws in performing its work on this project. 6. In response to the filed complaint, Inspector William Redman of the Registrar of Contractors performed a jobsite inspection to view Respondent’s workmanship. That inspection resulted in the issuance of a Corrective Work Order. The inspector opined that Respondent was responsible for the basement leaks, the resulting mold damage and interior damage. The written directive required Respondent to timely perform remedial repairs to stop the leaks, to remove the mold and to repair the interior water damage. 7. Respondent has not complied with the Registrar’s Corrective Work Order. 8. It is found that the water leaks and resulting interior damage in Complainant’s basement resulted from Respondent’s failure to properly seal the basement walls as determined by the inspector. Respondent’s claim that it was not responsible for sealing the top of the basement walls is unpersuasive. Respondent had the responsibility to design and construct a livable basement that would not leak water. There is no credible evidence that Complainant ever released Respondent from that responsibility. Respondent did not get a waiver of liability for any unsealed areas of the basement walls from Complainant. 9. Respondent’s failure to properly seal Complainant’s basement and failure to comply with the Registrar’s written directive to perform remedial repairs to properly seal the basement walls and repair the interior water damage are deemed wrongful acts which have substantially injured Complainant.

CONCLUSIONS OF LAW

1. The evidence of record adequately establishes that Respondent has violated the provisions of A.R.S. § 32-1154(A)(7), (23) and (3); namely Rule R4-9-108. 2. Pursuant to the provisions of A.R.S. § 32-1154(D), the Registrar may impose a civil penalty not to exceed the sum of $500.00 on a contractor for each violation of A.R.S. § 32-1154(A). The evidence of record supports the imposition of a civil penalty by the Registrar against 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 B license be suspended until the Registrar of Contractors receives written proof that the items set forth in the Registrar’s Corrective Work Order, the terms of which are incorporated herein by reference, have been appropriately rectified by Respondent. It is further recommended that if Respondent properly accomplishes the aforementioned corrective work on or before the effective date of the entered Order in this matter, then the above-provided license suspension shall not take place and the Citation and Complaint shall be closed. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on probation for a period of 90 days commencing on the effective date of the entered Order in this matter or the date on which notice of Respondent’s proper compliance with the terms of the entered Order is filed with the Registrar of Contractors, whichever is later. It is further recommended, in addition to the above-provided penalties, 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 of 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 15, 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