ALJDEC decisions subject to certification as final

07F-M2160-ROC-com · Registrar of Contractors · 2009-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 13, 2009 APPEARANCES: The Complainants appeared in their own behalf. Eleanor Brodie, Owner, appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. This matter came on for a Compliance Hearing based on the Registrar of Contractors (ROC) Order dated February 28, 2008, which required that the Respondent’s Class C-03 license was to be suspended until the Respondent: a. “Accomplishes appropriate and effective remedial work on the items set forth in Conclusion of Law no. 5[1], above and reaches an agreement with Complainant for payment to compensate Complainant for the loss of the gable view, or b. Removes the entire awning structure and returns to the Complainant the amounts paid by Complainant for the awning, or c. Concludes other mutually acceptable arrangements with Complainant.” 2. Although there was some discussion between the parties regarding removal of part or all of the awnings and reimbursement to the Complainants, alternatives (b) and (c) were not carried out. This leaves only alternative (a) for discussion. 3. In April 2008, the Respondent performed corrective work on the rear awnings. The Respondent requested permission to return to the Complainants’ home after performing the corrective work, in order to water test for any leaks. According to the Complainants, the time for performing any more corrective work had expired and the Complainants denied the Respondent’s access and requested a Compliance Hearing[2].

4. ROC Inspector Beau Cruz (Cruz), testified he performed a pre Compliance Hearing inspection on January 8, 2009. According to Cruz, awning panels have been replaced. Cruz water (hose) tested the patio and carport awnings for 20 minutes and concluded they did not leak. The Complainants assert that water testing with a hose is not the same as a significant rainfall and that the rear awnings continue to leak. This testimony was not buttressed by corroborating evidence or any specifics as to rainfall conditions or the extent of the leaks which the Complainants assert are still present. Absent additional evidence, it is concluded the Respondent has complied with this portion (leaks, scratched and dented rear awnings) of the ROC Order. 5. Cruz testified there were some (3-6) screw holes in the rear awning support rail The Complainants testified there were significantly more holes but brought no supporting (photographic) evidence. According to the evidence, the issue is aesthetic rather than structural. The Respondent argued the Order in the case addresses screw holes which were in the awning pans and had been corrected. The rail screw holes were not part of the initial hearing and it was not established they were caused by the Respondent’s corrective work. For these reasons, the rail screw holes are not considered as part of the Registrar’s Order for the purpose of this Compliance Hearing. 6. The Complainants testified that no work was performed on the front awning and that it continues to leak. The Respondent did not rebut this testimony. The parties had discussed the possible removal of the awning but nothing came of this.[3] The front awning leaks have not been corrected. This leaves the issue of the partially obstructed view of Superstition Mountain caused by the front awning. Cruz estimated the obstruction of the overall view at 10%. The evidence shows that when standing on the front porch area, the view of Superstition Mountain is not obstructed. The view of the sky above the mountain is obstructed. However, the Complainants testified that when looking out from the inside of the home, the view (beginning at the top) of Superstition Mountain becomes more obstructed depending on the vantage point. 7. The Respondent testified she did not consider compensating the Complainants for the partially obstructed gable view of the front awning because she did not believe the Respondent bore responsibility because the Complainants were aware of the type of awning they were receiving as it was being constructed[4]. The Respondent was informed the question of the Complainants’ state of knowledge regarding the awning, was determined at the initial hearing and not subject to further litigation. The Respondent further testified she believed the instant Compliance Hearing was an appeal of the initial ROC decision. She was informed the time for appeal had long expired and the scope of the instant hearing was solely to determine if the Respondent had complied with the ROC Order in the case, and if not, why not? 8. Finally, the issue of whether the front awning complies with the Apache Junction building code, has not been resolved. The Respondent obtained a second permit in order to have the awning inspected but an inspection has not been performed because of scheduling problems[5]. Conclusions of Law 1. It is clear the Respondent has not complied with the Order in this case as to the front awning leaks or compensation for the loss of the gable view. It is also apparent that there is little likelihood of the parties reaching an agreement regarding compensation for the front awning. 2. The evidence is insufficient to establish a reasonable value for the aesthetic loss (the partial loss of view) to the Complainants. This subjective loss does not justify removal of part or all the awnings and reimbursement to the Complainants. The primary function of the Registrar of Contractors is to regulate the contracting industry and to appropriately discipline contractors found in violation of the applicable contracting laws. Restitution may be awarded if and when it is appropriate. However, the restitution to be awarded must be reasonably ascertainable and bear some reasonable relationship to the harm for which restitution is ordered. In this case, the harm is subjective and its monetary value cannot be reasonably ascertained[6]. This being the case, and the Respondent having complied in significant part with Registrar’s Order in the case, the recommendation to be made is that a period of probation be imposed on the Respondent’s license. Recommended Order It is recommended commencing the effective date of the Order issued in this matter[7], that the Respondent’s Class C-03 license shall be placed on disciplinary probation for a period of One Hundred and Twenty (120) days.

Done this day, January 26, 2009

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

Armando Contreras , Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] The referenced paragraph reads: “ 5. The evidence establishes violations of (A)(3)/A.A.C. R4-9-108 and (A)(23) , Cruz testified with respect to his initial inspection, the CWO, and the condition of the awning at the time of the prehearing inspection. The front awning is still susceptible to leaks because of gaps at approximately three joints or seams. The rear awning leaks did not appear corrected, misplaced screw holes (pushed too far and punctured pan material) were not repaired, and the scratched and dented rear awning pans had been painted but the paint did not match. The evidence was not refuted and it establishes the above (A)(3) and (A)(23) violations”. [2] The Complainants asserted they were under the (mistaken) impression that they were under a legal obligation or had the right to disallow further work by the Respondent after the effective date of the Registrar’s Order. The explanation is suspect for two reasons. The first is that the Respondent merely wanted to water test the repair work which had been accomplished. The second reason is that the Registrar’s Order provides for suspension of the license “until” the ROC receives proof of the repairs. The effective date of the Order is not relevant to when repair work can be performed. The Complainants also voiced frustration over the number of times the Respondent had been at their home to perform work and the interference with the Complainants’ lives and schedules. [3] In a telephone conversation between Mr. Fuh and Mr. McCoy (Respondent’s supervisor), they discussed the possibility of removing the awning and partial reimbursement to the Complainant. McCoy testified he mentioned this to the Respondent (Mrs. Brodie), who, at the Compliance Hearing, testified she did not recall the conversation. [4] This issue was addressed in the initial hearing (paragraphs 3 and 5 of the Findings of Fact). [5] The Complainants believe they have lost too much time from work in their attempts to pursue compliance in this case. An inspection requires that the Complainants be present because the awning is enclosed within a fenced area occupied by the Complainants’ dogs. [6] The Complainants may still have the option of pursuing a financial remedy in civil court. [7] Forty (40) days from the date of the Order or from the date of certification if certified by the Director of the Office of Administrative Hearings.

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