ALJDEC

01F-F0228-ROC · Registrar of Contractors · 2001-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 6, 2001 APPEARANCES: Complainant appeared through its vice-president and qualifying party, Marty Corkery. Respondent appeared through its owner and qualifying party, Steve Johnson. Respondent’s wife, Julie, who is the office manager, also appeared at the hearing. 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 was the contractor retained by Home Depot to install new kitchen countertops in the home of a Home Depot customer (“homeowner”). Complainant subcontracted the work to Respondent. Complainant alleges that Respondent caused specified damage to the home, during his work on the project, and these allegations are discussed in the findings below.

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

a. Pursuant to the above-described sub-contract between Complainant and Respondent, on or about November 2000 Complainant arrived at the homeowner’s residence to install the new countertops. b. Uncontroverted evidence of record established that the homeowner’s driveway was icy on the date of the installation and Respondent’s truck, while parked, accidentally slid on said icy driveway, striking the home and causing a fracture to a x 4 post. The post in question was holding up a section of a near-flat portion of the roof for a porch. c. Respondent immediately notified the homeowner of the accident and the homeowner allowed Respondent to replace the post. At the conclusion of the countertop installation, the homeowner did not voice any objections to the countertop installation or the post replacement. Moreover, the homeowner did not advise Respondent that there was any further damage to the home from the motor vehicle accident. Thus, Respondent assumed that the homeowner was satisfied. d. Complainant testified that sometime after Respondent completed his work on the project, the homeowner voiced concerns that his roof and gutter system had been damaged by the fracture sustained by the original post. Apparently, Complainant and the homeowner agreed that the roof would not be fixed until sometime in the spring of 2001, when the weather in Flagstaff became more conducive for working on roofs. e. Complainant’s vice-president testified that although he did not call Respondent, regarding the issue of the additional roof complaints by the homeowner, another member of his company, Larry, called Respondent and got no response. Larry did not appear at the instant hearing to testify to his actions. f. Ultimately, Complainant and two other contractors examined the claim of roof damage and found, among other things, that the roof felt and shingles were fractured in the area of the tie-in with the main roof of the home and that the gutter system was kinked. g. Respondent’s exhibit A was entered into evidence and said document was a bid from one of the contractors that Complainant asked to examine the roof. A review of said bid shows, among other things, that the contractor examined the porch and indicated that he discovered “several cracks, found the ledger board to be moved back, several shingle courses were curling upward, causing leaking, and that the gutter needs replacing.” h. Complainant ultimately hired one of the contractors that bid on the remedial work and had the work completed. Complainant paid the sum of $4,317.60 to have the remedial work accomplished. This work was performed sometime between June and August 2001. i. Respondent contends that he never received any notice of the alleged roof damage until the time that he received a copy of the instant complaint that was filed with the Registrar of Contractors. Moreover, Respondent made a point of the fact that the filed complaint reads, in pertinent part, “…we are repairing roof.” Thus, Respondent contends that he never had any opportunity to view the alleged damage to the roof and/or repair same prior to the filing of the instant complaint. j. Respondent further testified that immediately upon receipt of the filed complaint, he contacted the Registrar of Contractors, Complainant, and the homeowner about viewing the alleged damage. Respondent indicated that at one point he was told that a meeting would take place within ten (10) days to view the roof. In this regard, he states that he contacted his own roofing contractor to accompany him on the expected jobsite inspection. Respondent never received any further notice regarding such a meeting and inspection. k. At another point, Respondent indicated he called the homeowner to set up his own inspection. Instead of receiving such an opportunity, Respondent testified that he received a phone call from Complainant advising him to stop calling the homeowner and to stay off his property. Complainant did not dispute this incident, indicating that he was acting on instructions from Home Depot. Apparently, Home Depot had gotten a complaint from the homeowner regarding calls from Respondent. Thus, at this juncture there was nothing more that Respondent could do about the alleged problem and Respondent merely waited for the instant hearing to take place.

3. It is determined and held that the evidence of record was sufficient to support a finding that Respondent did not have adequate notice, prior to the filing of the instant complaint, that the accident involving his truck may have caused more damage to the homeowner’s home than just the readily visible fractured post. Moreover, it is further found and determined that after the filing of the instant complaint, Respondent was not given an opportunity to view the alleged damaged roof. Had Respondent been given such an opportunity and determined that he had caused the roof problem, then he would have been able to either have the damage repaired or turn the matter over to his insurance company and have them repair the damage.

4. Complainant elected to file its complaint, regarding the above- described motor vehicle related accident, with the Registrar of Contractors and pursuant to said election, he was required to allow the Registrar’s normal process to be followed. The instant record failed to demonstrate any health or safety reasons why Complainant could not have made the necessary arrangements to allow Respondent to inspect the alleged roof problems prior to having same repaired, especially in light of the fact that Complainant admits that it knew of the homeowner’s complaint for almost seven months before any remedial work was performed.

5. It is held that the State’s Contracting laws contemplates that a contractor shall be provided with ample notice of any construction problems that may be attributable to his work on the project and that he be given ample opportunity to correct same before being deemed to be in violation of said contracting laws. Moreover, it is further held that the alleged deficiencies in the roof if, in fact, attributable to Respondent, are the result of an accident from a motor vehicle and not any substandard construction related work performed by Respondent.

6. The mere fact that a contractor’s motor vehicle is involved in an accident, does not mean that the State’s Contracting laws have any application to the incident. The salient facts and circumstances presented in the instant case militate against any finding of violations by Respondent of the spirit and intent of the State’s Contracting laws.

CONCLUSIONS OF LAW

1. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed.

Done this day, November 13, 2001

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, 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