ALJDEC

01F-T0427-ROC · Registrar of Contractors · 2001-10-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 24, 2001; at 8:30 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Dwight Watland. ADMINISTRATIVE LAW JUDGE: M. Douglas

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 a Class B- License issued by the Registrar of Contractors. 2. This is a residential matter where during the month of March, 1997, the Respondent installed new shingle roofing on the front portion of the Complainant’s residence and new fascia and a drip edge on the residence as well as siding on the residence. 3. The Complainant experienced repeated problems with all areas of the Respondent’s construction and repeatedly complained to the Respondent about its workmanship on his residence. 4. The Complainant was dissatisfied with the Respondent’s workmanship and failure to correct its work despite repeated attempts over a four year period to do so. The Complainant then filed a formal complaint, against the Respondent, with the Registrar of Contractors. 5. Pursuant to the filing of the formal complaint, an assigned agency inspector conducted an onsite inspection and issued a written corrective work order directing the Respondent to perform designated corrective action on the Complainant’s residence. 6. Credible testimony established that the two parties had very different interpretations of what the written corrective work required and, while the Respondent did perform some corrective action on the siding of the residence, the Respondent failed to comply with the terms and conditions of the written corrective work order. 7. The Complainant testified that the parties entered into an oral settlement agreement wherein the Respondent agreed to install a metal roof on his residence in settlement of his complaint. The Respondent testified that it had entered into settlement negotiations with the Complainant but denied that any settlement agreement had been entered into. 8. There was no credible evidence presented to establish either party’s version of their oral discussions. The credible evidence of record was insufficient and failed to support a finding that the parties’ settlement negotiations had entered into an enforceable settlement agreement. 9. Credible testimony and evidence, presented at hearing, established that the Respondent did return to the Complainant’s residence on several different occasions, between March 1997 and the date of the filling of the complaint at issue, and performed corrective action on the drip edge, the fascia and the siding. 10. Credible evidence established that the work on the fascia, siding, and drip edge have been a continuing problem and have never been properly completed. 11. Credible evidence, presented at hearing, established that, despite the Respondent’s repeated corrective efforts, the fascia, the drip edge and the vinyl siding still fail to comply with applicable industry and workmanship standards and require further corrective action by the Respondent. The Respondent is admonished that it is not entitled to an endless series of repair attempts to repair its defective workmanship. The Respondent shall properly repair or replace the vinyl siding, drip edge and fascia on the Complainant’s residence. This will be the Respondent’s final opportunity to properly repair or replace the vinyl siding, the drip edge and the fascia. 12. The Respondent’s actions, in failing to properly correct the problems with the siding, the fascia and the drip edge despite repeated opportunities to do so over a nearly four year period, are found to constitute a wrongful act. 13. While credible evidence established that the roof work and the roofing shingle installation on the Complainant’s residence fail to comply with applicable industry and workmanship standards, there was no credible evidence presented to establish any conduct by the Respondent which would preclude or estop its assertion of the expiration of the applicable statute of limitations as a defense regarding the roofing work that it performed on the Complainant’s residence. 14. Credible evidence established that the installation of the roof shingles and the associated roofing work was completed during the month of March, 1997 and that the complaint at issue was not filed until October 26, 2000. 15. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (7) (Wrongful Act), (23) and (3); namely, Rule R4-9-108. 2. A.R.S. (32-1155(A) provides, in pertinent part, as follows: “Upon the filing of a written complaint with the registrar charging a licensee with the commission within two years prior to the date of the filing of the complaint.” 3. This section like any other statute of limitations is a statute of repose enacted as a matter of public policy in Arizona to fix a time in which complaints must be filed. Ross v. Ross, 96 Ariz. 249, (1964). 4. The act(s) giving rise to the portion of the instant complaint referring to the roofing work performed by the Respondent on the Complainant’s residence must necessarily have been committed, if at all, on or prior to the end of March, 1997, the date of the completion of the roofing work by the Respondent. The Complaint at issue was filed more than two years thereafter and the Complainant’s right of action regarding the roofing work before the Registrar of Contractors is effectively barred by the provisions of the statute which has been timely and affirmatively asserted by the Respondent. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Respondent’s Class B- License shall be suspended until the Registrar of Contractors receives proof that the Respondent has properly corrected the siding, fascia, and drip edge on the Complainant’s residence as set forth above in Finding of Fact No.11. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and Citation No. T01-0427 shall be closed. Done this day, November 7, 2001.

________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of November, 2001, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488