ALJDEC decisions subject to certification as final

04F-G1181-ROC · Registrar of Contractors · 2005-01-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2005 APPEARANCES: John Mascarenas appeared, telephonically, on behalf of himself and his wife, Judy Mascarenas (“Complainants”). Marcelino Navarro Flores (“Respondent”) appeared in person on behalf of himself. ADMINISTRATIVE LAW JUDGE: Michael L. Barth _____________________________________________________________________ findings of fact 1. On the basis of the Complaint filed by Complainants, the Registrar of Contractors (“ROC”) cited Respondent for violating A.R.S. § 32- 1154(A)(7), (13) (specifically A.R.S. § 32-1124(B)),(23) and (3)(specifically A.A.C. R4-9-108). 2. It was undisputed that in or about March, 2004, the parties had entered into a contract in which Complainants agreed to pay Respondent the sum of $2300.00 to install a new flat roof on their house. 3. Taking administrative notice of the records of the Office of Administrative Hearings, this tribunal finds that: a. A Corrective Work Order was issued on June 29, 2004 directing Respondent to, within 15 days of the date of issuance of the Corrective Work Order, “ensure no roof leaks and to repair water damage to the drywall ceilings. b. On or about September 23, 2004 Complainants requested the ROC to reopen their Complaint for the reason that despite repairs having been made by Respondent, the flat roof leaked during rainfall on September and 19, 2004, and further advised the ROC that Respondent had offered to return to correct the leak. c. Per Respondent’s Answer to the Citation and Complaint, a roof can not be repaired in the absence of dry conditions. 4. It was undisputed that in response to the Corrective Work Order Respondent attempted to repair the flat roof and upon being notified that those repairs failed to stop the leak, replaced the flat roof. 5. This tribunal finds, as reflected in Respondent’s Chronology, Exhibit A, that Respondent replaced the flat roof on November 6, 2004. The date of the installation of the second flat roof was not controverted by Complainants. 6. This tribunal finds that the following can be reasonably inferred from the issuance of the Corrective Work and Respondent’s replacement of the roof in response to the Corrective Work Order: a. The flat roof leaked. b. The leaking was due to a failure by Respondent to construct the flat roof in a workmanlike and professional manner. c. As a result of the leaking, the drywall ceilings were damaged. 7. Otherwise, the ROC inspector would not have issued the Corrective Work Order and Respondent would not have replaced the flat roof.

8. ROC Inspector Jack McKim credibly testified that he had notified the parties via letter on or about November 23, 2004 that a pre- hearing inspection would be held on January 10, 2005 but that when he arrived at Complainants’ residence, Complainants did not present themselves. 9. Inspector McKim further credibly testified that he was, therefore, unable to conduct a prehearing inspection to determine whether the Respondent had failed to comply with the Corrective Work Order. 10. Mr. Mascarenas testified that: a. The second flat roof constructed by Respondent leaked causing drywall damage in three of the same areas. b. Two of the six areas of original drywall damage had never been repaired and none of the repairs had been painted. c. Respondent had been given access to correct drywall damage occurring after the construction of the second flat roof but failed to have any of the damage repaired. d. A letter from the ROC scheduling a prehearing inspection was never received as the U.S. Postal Office serving Complainants’ area had been plagued with delivery problems. 11. Respondent testified that: a. The second flat roof he had constructed did not leak and that all of the original drywall damage had been properly corrected by a properly licensed contractor. b. The drywall damage claimed to have occurred after the second flat roof was constructed was due to leaks unrelated to the construction of the flat roof. c. Although the second flat roof did not leak, he had, nevertheless, arranged for properly licensed contractors to correct the drywall damage but that Complainant had refused to coordinate a time for said contractors to repair the drywall damage. 12. Complainants failed to present any independent evidence to corroborate Mr. Mascarenas’ testimony that the U.S. Postal office serving Complainants’ residence was plagued with delivery problems. Having failed to do so, this tribunal finds that Complainants failed to justify their failure to allow a pre-hearing inspection to be completed. 13. Complainants failed to present testimony from a competent expert witness, a licensed roofing contractor or ROC inspector, to rebut the testimony of Respondent, a competent roofing expert as evidenced by his licensure, that the second flat roof installed by him did not leak and therefore was constructed within minimum workmanship standards. 14. This tribunal further finds that it would be unlikely for a licensed contractor to attempt repairs of the flat roof and eventually replace it in response to a Corrective Work Order to avoid the risk of having his license disciplined and not ensure that repair of some drywall damage to ceilings secondary to leaking was completed and completed properly. 15. In view of the foregoing and not having the opportunity to observe Mr. Mascarenas testify, this tribunal finds Respondent to be a more credible witness than Mr. Mascarenas. Accordingly, this tribunal finds that the second flat roof did not leak and, therefore, was not constructed below industry standard. 16. In having installed the second flat roof in accordance with industry standard and having done so within 4-5 weeks of being notified that the roof leaked on September 18 and 19, 2004, Respondent substantially complied with the Corrective Work Order. This tribunal finds that although Respondent failed to comply with the time deadline set forth in the Corrective Work Order, the timing of Respondent’s compliance under the circumstances presented here was justified. To attempt to repair leaks in a new roof before replacing it is reasonable. 17. Complainant failed to present any evidence or argument that Respondent violated A.R.S. § 32-1124(B). 18. Taking administrative notice of the official records of the ROC, this tribunal finds that but for the instant Complaint, Respondent’s license is currently in good standing. Conclusions of Law 1. Construction work, such as that at issue herein, is not a perfect science and, therefore, it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order for the final work to meet industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. Therefore, although Respondent’s initial workmanship failed to meet industry standards, by having corrected workmanship deficiencies in a workmanlike and professional manner in substantial compliance with the Corrective Work Order, Respondent’s initial poor workmanship does not amount to a violation of A.A.C. R4-9-108. 2. Not having violated A.A.C. R4-9-108, Respondent did not violate A.R.S. § 32-1154(A)(3) which requires a licensed contractor to comply with any rule adopted by the ROC. 3. Having substantially complied with the Corrective Work Order, Respondent did not violate A.R.S. § 32-1154(A)(23). 4. Not having violated the foregoing regulation and statutes, Respondent did not commit a wrongful act in violation of A.R.S. § 32- 1154(A)(7). 5. Having failed to demonstrate that Respondent violated A.R.S. § 32-1124(B), Respondent failed in turn to demonstrate Respondent violated A.R.S. § 32-1154(A)(13). Recommended Order In view of the foregoing, it is recommended that Case No. G04-1181 be dismissed. Done this day, January 31, 2005.

______________________________________ Michael L. Barth Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2005, to:

Registrar of Contractors Israel G. Torres ATTN: Jennifer Brown 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