ALJDEC decisions subject to certification as final

06F-S0226-ROC · Registrar of Contractors · 2007-02-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2006, and December 18, 2206 at 9:00 a.m. The matter was held open until January 19, 2007 to provide sufficient time for the parties to present their post-hearing memorandums. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, Michael Schern. 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 C-42 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed a new roof on the Complainant’s residence. 3. There was no dispute that prior to the installing the new roof the Respondent removed the Complainant’s old roof and stripped the roof down to the underlying plywood. 4. There was no dispute that after the roofing had been stripped to the plywood a monsoon storm occurred which deposited two (2) inches of rain in the area in a two (2) hour period. 5. Credible testimony and evidence established that the rain caused extensive interior damage to the Complainant’s residence. 6. The Complainant demanded that the Respondent complete the installation of the roof and repair all damages caused by the rain, including interior damage, and all damage caused by roof material blown against and around the Complainant’s yard. 7. When the Respondent failed to comply with the Complainant’s demand the Complainant filed a formal complaint, against the Respondent, with the Registrar of Contractors. 8. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 9. The Corrective Work Order provides, in pertinent part, as follows: “Contractor to correct, repair or replace the following by appropriate means: A. Complete contract. 1. Damage to garage door. 2. Damage to cage. 3. Stain on pet cage. 4. Any and all water damage. 5. (Water damage to underside of exposed (visible) roof deck. Any and all water damage. 6a. (Damage to personal property under roof Any and all water damage. 6b. Damage to prescribed medication. 7. (Consequential damages to house, interior carpets, pest penetrations etc.) Any and all interior (damage). 8. Heat pump filter. 9s. Any and all cleaning of property. 9b. Any and all exterior cleaning. 10. Damage to hedge. 11a. Damage to gate. 11b. Damage to TV antenna. 12. Remove all nails. 13. Any and all damaged flooring and damaged door. 15. Complete contract. The following we lack jurisdiction: 14. Cancellation of work.” 10. Credible testimony and evidence, produced at hearing, established that the Respondent has completed the installation of the Complainant’s roof to within applicable industry and workmanship standards. 11. Credible testimony and evidence established that the Respondent declined to comply with the remaining portions of the Corrective Work Order on the basis that the monsoon storm was an “extreme” weather condition and that there was no way for the Respondent to anticipate this type of weather conditions. 12. Credible testimony and evidence, presented at hearing, established that the Respondent was aware of the fact that he was removing the Complainant’s roof in the local monsoon season and that the parties had discussed the possibility of rain prior to the removal of the roof and that an addendum to the contract, prepared by the Complainant specifically provided for the provision of a tarp to protect the roof in the event of rain before the new roof was completed. 13. Credible testimony and evidence, presented at hearing, established that the Respondent should have reasonably foreseen the possibility of heavy rain during the monsoon season and that the Respondent failed to take reasonable precautions to prevent water damage to the Complainant’s residence 14. Credible testimony and evidence, presented at hearing, established that the Complainant has caused the interior damage in his residence to be corrected by his own insurance company and that the Complainant has had to pay an “insurance deductible” of $1,000.00 for the cost of repairing his interior damages. 15. Credible testimony and evidence, presented at hearing, established that the Respondent has failed to comply with the following portions of the Corrective Work Order: 1. Damage to garage door. 2. Damage to pet cage. 3. Stain on pet cage. 5. Water damage to underside of exposed (visible) roof deck. 8. Heat pump filter. 10. Damage to hedge. 11a. Damage to gate. 11b. Damage to TV antenna. 12. Remove all nails. 16. Credible testimony and evidence, presented at hearing, established that the Respondent is not responsible for consequential damages caused by another contractor in its water mitigation work. 17. The Respondent shall, as restitution, properly reimburse the Complainant his insurance deductible in the sum of $1,000.00. 18. 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) (23) (Failure to comply with the terms and conditions of a Corrective Work Order) and (3); namely, Rule R4- 9-108 (Failure to perform work in a professional and workmanlike manner.

RECOMMENDED ORDER In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s order that the Respondent’s Class C-42 License shall be suspended until the Registrar of Contractors receives proof that the Respondent has properly complied with the terms and conditions of the written Corrective Work Order issued in this matter as set forth above in Finding of Fact No. 14 and, as restitution, has paid the Complainant the sum of $1,000.00. 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 that this matter be closed. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification.

Done this day, February 5, 2007.

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 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