ALJDEC

01F-T1020-ROC · Registrar of Contractors · 2001-10-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Tuesday, October 2nd, 2001; 1:30 p.m. APPEARANCES: The complainant, Mr. Nick Castaneda, was represented by Mr. Charles E. Fletcher, attorney-at-law. The respondent, Santa Cruz Roofing, Inc., was represented by Mr. Steve Cervantez, qualifying party. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ This matter was brought on for administrative hearing in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence presented, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondent herein, Santa Cruz Roofing, is, and during all times material hereto was, a contractor, licensed by and doing business in the State of Arizona, holding Class C-42 License number 058253. 2. The complainant, Mr. Nick Castaneda, contracted with the respondent, through respondent’s qualifying party, Mr. Steve Cervantez, for the respondent to construct a new roof on complainant’s commercial property. The contract was executed on August 1st, 2000. The respondent gave a three-year warranty of his new roof, guaranteeing the roof would be “free from defects in material and workmanship.” The contract excepted from the guarantee damage due to “excessive winds.” 3. The roof was to be a 2’ x 6’ sub-roof on top of the existing roof, with corrugated sheet steel on top of that. The building was 40’ by 60’ in size. 4. Respondent completed the work, and there is no evidence that it was not timely completed. 5. On April 21st, 2001, the whole roof, almost entirely intact, was blown off the building by wind. There is a great deal of evidence that the roof was able to be blown off as it was because the workmanship of the respondent was defective, and hardly any evidence tending to prove that the workmanship was up to professional and industry standards. 6. When the roof blew off the building it did not fracture or fragment into several pieces. Rather, the entire roof was lifted whole. The photographic evidence proves that when it was blown off, the roof was raised straight up several feet, and then blown over onto the neighbor’s residential property. One photograph (complainant’s Exhibit 8) clearly depicts five vent pipes after the roof was blown off, and they are still completely upright and undamaged. 7. The evidence proves that the maximum wind velocity in the area that day was not extreme. The Phelps-Dodge Weather Station, which regularly takes wind velocity readings and records them, and is the provider of such information to the United State Weather Service, recorded a maximum wind speed on April 21st, 2001, of merely 23.69 miles per hour. This reading was taken approximately two miles from the complainant’s building. This is not an extreme wind as would exculpate the respondent’s workmanship in installing the roof. The respondent testified that he did not know what he would consider an extreme wind. 8. The complainant was first notified of the problem by the next door neighbor to the building, Ms. Glosser. She telephoned complainant to inform him that his roof had blown off and landed on top of her home. 9. Complainant immediately took action to remove the roof from his neighbor’s home. He called several friends and others, about 20 persons in all, and they met at Ms. Glosser’s to dismantle the roof and take it away. This took about three or four hours. 10. Complainant testified that he had watched the respondent’s crew installing the roof, and noticed then that they were not putting in but one nail in some of the brackets fastening the roof to the building, and in others he saw no nails at all. After the roof blew off he inspected it while he and his friends were removing it from Ms. Glosser’s home, and saw again that too few nails were used to fasten it down to the building. 11. The next day complainant telephoned the respondent to inform him of the calamity and inquire as to what respondent intended to do about it. Respondent came and looked at the roof, and said he would “get some figures together” and notify the complainant of what they were. Respondent never contacted the complainant after that, forcing the complainant to contact him. When complainant contacted him, respondent said he did not have the money or insurance to do anything about it. 12. Complainant contracted with another contractor and paid again for another roof to be installed. 13. Ms. Glosser testified at the hearing. She was home when the roof landed on her house. She said it sounded like a huge explosion. Electricity to her house was knocked out by the impact. Ms. Glosser filed a separate complaint with the Registrar of Contractors against this respondent, which is now pending. Children are sometimes at the Glosser house. There was some damage to her property caused by the roof. It is fortunate that more damage was not done, and extremely fortunate that no one was hurt. 14. Mr. Nazario N. Hernandez testified. Mr. Hernandez is the Clifton Building Inspector. He issued a building permit for the roof on July 27th, 2000. Respondent, during installation of the roof, never contacted the building inspector to come by and inspect the work in progress. According to Mr. Hernandez, the respondent was legally obligated to contact the building inspector, and request the inspection before the work was completed. After the roof was installed it was, of course, too late to inspect. 15. After the roof was blown off Mr. Hernandez closely inspected it. He also went to the top of the building and inspected where it had been. Mr. Hernandez testified he saw that the respondent had used too few nails, and other inadequate methods. He concluded that the roof was improperly fastened. The new roof rafters should have been securely fastened to the existing roof rafters at all points, but they were not. Mr. Hernandez testified that had he had the opportunity to inspect the roof during its installation he would have recommended additional materials and more secure fastening methods. 16. Mr. Cervantez was the only witness to testify for the respondent, and respondent offered no other evidence. Mr. Cervantez’s testimony was essentially a denial of any wrongdoing, and assertion that the roof was installed properly. 17. Notice is taken of the respondent’s prior license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. This administrative hearing was held pursuant to and in accordance with A.R.S. §32-1156 and A.R.S. §41-1092. 2. The respondent is charged in the instant citation and complaint with possible violations of A.R.S. §32-1154.A.2., 3., and 7. 3. A.R.S. §32-1154.A.2. prohibits a licensed contractor from, among other things, disregard of the building codes of any political subdivision of the state, in any material respect, which is prejudicial to another without the consent of the owner or his representative. When respondent disregarded his legal obligation to contact the Town of Clifton’s Building Inspector and arrange to have an inspection of his work in progress he violated this section. That was required by the local building code, and his breach of that duty was material and it was highly prejudicial to the complainant, and to Ms. Glosser. 4. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited in the citation and complaint is A.A.C. R4-9-108, Workmanship Standards. Section A. of that rule requires all of a contractor’s work to be performed in a professional and workmanlike manner. Respondent’s work was not. Section B. of that rule requires all work to be performed in accordance with all building codes. Respondent’s work was not. Respondent violated A.R.S. §32-1154.A.3. 5. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor which results in another person being substantially injured. Respondent violated this section independently of the aforementioned violations by defectively installing a roof that blew off its intended location and onto Ms. Glosser’s property, thereby causing substantial injury to her property and her quiet enjoyment of it. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that respondent’s Class C-42 License be revoked on the effective date of this order (40 days after the date of mailing shown on the registrar’s certification on the order). Done this day, October 19th, 2001.

________________________________ GRANT WINSTON Administrative Law Judge

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

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

By _______________________________

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