ALJDEC decisions subject to certification as final

07F-G0192-ROC · Registrar of Contractors · 2007-05-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 23, 2007. APPEARANCES: Complainant David Chaney appeared on his own behalf; no one appeared for Respondent. ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ The issue presented is whether Respondent Patio Rooms of Arizona, Inc. (License No. 138821) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Patio Rooms of Arizona, Inc., (“Respondent”) is the holder of License No. 138821, a Class B-03 contracting license issued by the Registrar of Contractors (“ROC”). Alvin Gitt is Respondent’s qualifying party. David Chaney (“Complainant”) owns a home at 17556 West Hearn Road, Surprise, Arizona.

Complainant entered a contract with Respondent in which Respondent agreed to create a room addition by enclosing Complainant’s existing patio. On July 29, 2006 Complainant filed with ROC Complaint No. G07-0192 against Respondent alleging that the roof of the new room leaks in several places and that water ponds on the roof. ROC assigned Inspector Craig Williams to investigate. On September 25, 2006, Inspector Williams issued a Corrective Work Order (“CWO”) that directed Respondent to repair 2 items within 15 days. See CWO, in administrative record. Item 1 in the CWO states that the roof of the new addition leaks where connected to the house and that the new roof also ponds. Respondent was directed to repair item 1 using appropriate means. See CWO, in administrative record. Item 2 in the CWO states that the window on the east side of the door leaks. Respondent was directed to repair item 2 using appropriate means. See CWO, in administrative record. Items 1 and 2 in the CWO were not completed to Complainant’s satisfaction and Complainant requested a hearing. On January 18, 2007 ROC issued Citation and Complaint No. G07-0192 alleging that Respondent may have violated A.R.S. §§ 32-1154(A)(2), (A)(3) (R4- 9108), (A)(7), (A)(13) (A.R.S. § 32-1124(B)), and (A)(23). ROC issued a Notice of Hearing on March 16, 2007 setting the matter for 9:00 a.m. April 23, 2007. At the time scheduled, no representative for Respondent appeared. After a 15 minute grace period the Administrative Law Judge (“ALJ”) convened the hearing in Respondent’s absence. Mr. Chaney appeared and testified and had 5 exhibits admitted into evidence. The administrative record was also accepted into evidence. The contract was signed on January 12, 2006. The total price was $15,000.00. Mr. Chaney put 50% down ($7,500.00) and has now paid 75% ($11,250.00). The work was scheduled to be completed in 3 to 4 months.

By May 2006 the work was completed, but leaking occurred in the monsoon storms later that summer. On 4 occasions Respondent has applied caulking to try to stop the leakage, but as of March 22, 2007 the roof was still leaking. Avi Kagan was Respondent’s representative on the project. On April 17, 2007 Mr. Kagan sent Mr. Chaney an email asking Mr. Chaney if he wanted to cancel the ROC inspection set for April 19, 2007 to allow Respondent time to complete the repairs. See Exhibit 3. No pre-hearing inspection was conducted because Inspector Williams was ill on the date scheduled. Inspector Williams did not appear at the hearing because he was ill. Water marks can be seen on the walls after rain and a puddle as large as 15 feet by 13 feet has developed in the room as a result of the leaks. Mr. Chaney is concerned that these leaks may lead to mold. A puddle about 6 feet by 2 feet remained on the roof on March 22, 2007 after a rain the prior night. As originally installed by Respondent the roof had a slope of less than ¼ inch per foot, whereas the minimum slope was to be ½ inch per foot. To try to correct this deficiency, Respondent added plywood and roofing paper. City of Surprise has not approved this attempted repair because it has not been presented plans. See Exhibit 4. The roofing paper is coming up in the area where ponding occurs. The window installed by Respondent still leaks. On April 23, 2007, Wayne, Complainant’s installer, called Mr. Chaney in an effort to schedule repair work. Mr. Chaney explained that he was preparing to leave to attend the ROC hearing scheduled for that morning. Mr. Chaney has no confidence that Respondent can fix the problems. Complainant arranged to have an inspector from the City of Surprise inspect the room. The room failed the inspection. See Exhibit 4. Because Respondent had not had portions of the building inspected as work progressed, to some of the deficiencies will require parts of the project to be dismantled to allow for proper inspection.

Deficiencies noted in the City of Surprise inspection include: a. No permit for electrical and for air conditioning, a permit is required; b. Connection to existing wall needs to be exposed to allow verification of proper connection; c. Need verification of footing size under the new post; d. Dog door in room is not allowed because it does not meet pool ordinance; e. The room needs to meet the pool ordinance requirement for barrier; f. Flashing is required behind the vapor barrier; g. Slope not at ½ inch per foot minimum per the plans; h. Ledger not attached to solid wood, need to remove stucco to verify installation; and i. Need engineering for plywood added in effort to meet minimum slope. The preponderance of evidence shows that Respondent has violated A.R.S. § 32-1154(A)(2) because the work did meet the City of Surprise building codes and because Respondent did not meet the plan requirement as to the slope, both of which are prejudicial to Complainant. The preponderance of evidence shows that Respondent has violated A.R.S. § 32-1154(A)(3) because both the roof and window leak, which work does not meet the minimum workmanship standards. The preponderance of evidence shows that Respondent has violated A.R.S. § 32-1154(A)(7) because Complainant’s payments of $11,250.00 for a room that does not pass inspection and has a leaky roof constitutes a substantial harm. The preponderance of evidence does not show that Respondent has violated A.R.S. § 32-1154(A)(13). The preponderance of evidence shows that Respondent has violated A.R.S. § 32-1154(A)(23) because the CWO was issued September 25, 2006 and as of April 17, 2007 Respondent had not completed the required work. CONCLUSIONS OF LAW The Registrar of Contractors has jurisdiction over Respondent and the subject matter in this case.

Complainant bears the burden of proof, and the standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2- 19-119. A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). Complainant has met the burden of proof to show that Respondent violated of A.R.S. §§ 32-1154(A)(2), (A)(3), (A)(7), and (A)(23). Complainant did not meet the burden of proof to show that Respondent violated A.R.S. § 32- 1154(A)(13). Because Complainant has met the burden of proof to show that Respondent violated A.R.S. §§ 32-1154(A)(2), (A)(3), (A)(7), and (A)(23), discipline is warranted. A review of Respondent’s license history presents no basis for aggravation in an assessment of a proper penalty, but the failure of Respondent to appear at the Hearing does constitute an aggravating factor in the assessment of the degree of the penalty that ought to be imposed. ROC has a duty to protect the public from unscrupulous, dishonest, and incompetent contractors. At times this can be accomplished by requiring a contractor to take corrective action or pay restitution as a condition of continued licensure. In the instant matter such an order would raise at least two concerns. First, Respondent has violation multiple provisions of A.R.S. § 32-1154, some several times. Respondent’s failure to obtain the required permits and failure to have its work inspected as required are serious violations that raise questions as to Respondent’s competence. Second, restitution is problematic because portions of the work have not been inspected or approved, and there is not enough evidence to determine what dollar amount would be required in restitution. Put another way, Complainant may be required to spend substantial sums to bring the room addition into compliance, and it is possible that compliance cannot be achieved without tearing down portions of the room addition. As such, even if Respondent refunded to Complainant the $ 11,250.00, Complainant might not be fully reimbursed. Consequently, to adequately protect the public at large, it is recommended that Respondent’s license be revoked. This result does not leave

Complainant without a remedy as Complainant may pursue monetary damages in Superior Court. RECOMMENDED ORDER IT IS RECOMMENDED that commencing on the effective date of the entered Order in this case that Respondent Patio Rooms of Arizona, Inc.’s Class B-03 License No. 138821 be revoked. 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 that certification. Done this day, May 9, 2007

______________________________________ Thomas Shedden Administrative Law Judge

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

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ -----------------------

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