ALJDEC decisions subject to certification as final

07F-F0180-ROC · Registrar of Contractors · 2008-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 5, 2008

APPEARANCES: Complainant appeared through its president, James Mansene (“Mansene”) and Respondent appeared through its member Steve Holmes (“Holmes”).

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. Mansene was involved in a longstanding remodel project for the outside of his restaurant. Somewhere along the course of the project, he retained Respondent to complete the project. Complainant contends that there are deficiencies in the work performed and/or materials provided by Respondent and said issues are discussed in the findings below.

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

a. The project was commenced sometime in 1996. Complainant desired to install an upper level patio above an existing restaurant. According to Mansene, the project was started and stopped several times and he employed several different contractors on the project. b. On or about 2003, Complainant retained Mark Davis Construction (“Davis”) to finish the project. After having some type of disagreement with Davis, Complainant terminated that company from the project and retained Respondent to complete the project. c. According to Mansene, after Respondent had completed its work on the project, he experienced water leakage into the interior of the building in either the winter or late spring of 2004. He contacted Respondent regarding this issue and Respondent performed some type of remedial work on the roof. d. Subsequent to performance of the remedial work in 2004, Complainant again experienced water leakage in the spring of 2005, causing specified interior damage. Respondent again performed some type or remedial work and the leakage continued. According to Mansene, the last repair effort by Respondent was approximately two (2) years ago. e. Mansene testified that the water damage is in the pool room and the kitchen. He admits that he had water leaks in the kitchen before Respondent came on the project. f. This is a very unusual project. The upper patio, which Respondent worked on, does not cover the entire existing roof structure. Respondent had nothing to do with the roofing over the kitchen, which is not covered by the patio addition. Nevertheless, Mansene contends that Respondent dumped debris on the kitchen area roof and that could have damaged the area. g. Mansene testified that he recently paid to have another contractor re-roof the area over the kitchen. He submitted a receipt for this expenditure, which is dated June 4, 2008. h. Among other damage, Mansene complained about floors buckling, damage to walls and damaged wainscoat. i. Ultimately, Complainant filed the instant Complaint with the Registrar of Contractors. Upon receipt of the filed Complaint, the matter was assigned to one of the inspectors for the Registrar of Contractors. The inspector appeared at the instant hearing and presented testimony. j. The inspector convened a jobsite inspection, shortly after receiving the filed Complaint. Subsequent to concluding the jobsite inspection, he issued a Corrective Work Order (“CWO”), directing Respondent to correct separations and gaps in the torch-down roof to the west of the patio and to accomplish specified repairs do the awning. He did not order anything in regard to the interior water damage, based on the fact that so many contractors had worked on the project at different times, over an extended period of time, that there was no way to determine which contractor was responsible for the various areas of water damage.[1] k. Subsequent to issuance of the above described CWO, Respondent performed further remedial work on the patio roofing. After this remedial work was performed, the inspector was again asked to return to the property and perform a water test, in order to determine if the repairs had been effective. l. The inspector testified regarding the aforementioned water test and indicated that no leaks were discovered in the areas wherein Respondent had performed its work. The inspector indicated that he was there for approximately one (1) hour and the water test was very thorough. He also opined that a water test, although not as perfect as an actual rainfall, was the most appropriate method to test for continuing water leaks. m. As of June 8, 2007 Complainant had advised the inspector that he had not experienced any new leaks after the work performed pursuant to the CWO. In August of 2007 the inspector closed the Complaint. Shortly thereafter Complainant requested the matter be reopened. n. Holmes presented testimony at the hearing. Holmes indicated that he was merely hired to finish the project after a long line of other contractors had worked on the project. Respondent did not frame the exterior of the building or the upper patio floor. He further indicated that Respondent’s work did not involve any penetrations on the existing roof. o. According to Holmes, the prior interior water damage repairs, which he had performed for Complainant, were done merely as a courtesy and with no admission that the prior leaks were attributable to Respondent’s work on the project. p. He confirmed the testimony of the inspector that the water test showed that none of Respondent’s work was causing the water to get into the interior of the building. q. He contests Mansene’s claim that Respondent may have damaged the roof over the kitchen area. According to Holmes, Respondent took precautions to protect the roof, by placing sheets of OSB over the area, prior to performing its work on the adjacent walking deck. r. Holmes testified that the areas he corrected in response to the CWO were sealed under the openings and gaps at the top surface and thus, he did not believe any water could be getting into the building from these areas. Moreover, he pointed out that Complainant continued to experience water leaks after these areas were repaired. s. Mansene testified that he continues to experience leakage in the women’s restroom and the kitchen.

3. There were some minor deficiencies in Respondent’s work on the project, as noted in the provisions of the aforementioned CWO. However, Respondent was shown to have responded to the Agency directive and corrected these areas, as confirmed by the re-inspection by the assigned inspector, along with the extensive water test. Nevertheless, the fact that there were gaps and/or separations in the torch-down roofing material installed by Respondent and a failure to adequately bolt the awning to the frame supports a finding of substandard and unacceptable workmanship by Respondent, albeit minimal.

4. The evidence presented herein was inadequate to support any finding that any of the issues in Respondent’s work were directly responsible for the water penetration into the interior of Complainant’s building. Thus, Complainant failed to sustain the requisite burden of proof on this issue.

5. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class KB-01 license of Respondent shall be placed on a period of disciplinary probation for thirty (30) days. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

Done this day, August 11, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

----------------------- [1] By way of example, part of the CWO referenced holes and electrical boxes and cable lines which did not appear properly sealed. He did not find these areas to be within the scope of work performed by Respondent and thus, indicated “no action” for Respondent. These areas could be sources of leaks, as well as the roof over the kitchen.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826