ALJDEC decisions subject to certification as final

08F-2430-ROC · Registrar of Contractors · 2009-03-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 26, 2009. APPEARANCES: David Erickson appeared personally. L J D Remodeling, LLC, doing business as W D West Remodeling, was represented by its authorized employee, Bill West. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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 1. L J D Remodeling, LLC, doing business as W D West Remodeling Group (“Respondent”), is the holder of License No. 200537, a Class B- contracting license, issued by the Registrar of Contractors (“Registrar”). 2. On or about October 27, 2006, David Erickson (“Complainant”) hired Respondent to remove his existing roof shingles and install new shingles on his roof. 3. Respondent completed its scope of work in November 2006. 4. Respondent was responsible for assuring a watertight roofing system for at least two years from the completion of its work. 5. On or about January 27, 2008, Complainant experienced water intrusion into his residence. Complainant sustained interior damage to his residence. 6. On or about February 14, 2008, Complainant filed a written Complaint with the Registrar alleging that Respondent was responsible for “[s]everal roof leaks along ductwork of swamp cooler & two electric protrusions in roof…interior ceiling damage.” Complainant wanted Respondent to pay $1,350.00 for repairing the resulting water damage caused by the water infiltration.[1] 7. The Registrar designated Complainant’s Complaint as Case No. 08-2430. 8. The Registrar issued a Citation and Complaint in Case No. 08-2430 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (7) and (3), namely A.A.C. R4-9-108. 9. The Registrar forwarded Case No. 08-2430 to the Office of Administrative Hearings, an independent agency, for formal hearing. 10. It is undisputed that Complainant’s residence had water infiltration approximately 14 months after Respondent completed its work. There is a dispute as to how the water leaked into the residence and who is responsible for it. 11. After the water leaked into his residence, Complainant contacted Respondent to inspect the roof. 12. On or about January 29, 2008, Bill West, an employee of Respondent, and another employee arrived at Complainant’s residence to inspect the roof. The employees performed a water test and discovered a leak around an electrical pipe and an evaporative cooler located on the roof. 13. Mr. West opined that wind caused damage to the electrical pipe and cooler, resulting in broken seals that leaked during the recent rain. Mr. West determined that there was nothing wrong with the roof or the metal flashings. 14. After completing his investigation, Mr. West decided that Respondent’s workmanship did not cause the leak. His position is that wind moved the evaporative cooler, causing the seal to break. 15. On or about January 30, 2008, Complainant hired Almeida Roofing, Inc. to inspect and repair the roof. Almeida Roofing, Inc. is the holder of License No. 215758 issued by the Registrar. Almeida Roofing, Inc. is a competitor of Respondent. 16. Kevin Almeida of Almeida Roofing, Inc. inspected the roof and determined that there was water penetrating through the seal on the backside of the cooler duct. He resealed the area at a cost of $200.00. 17. By letter dated January 31, 2008, Complainant’s insurer, American Family Insurance Group, acknowledged receipt of his claim for damages that occurred on January 27, 2008. The letter also confirmed that Complainant had decided to withdraw his claim to his homeowner’s insurance policy. 18. Complainant withdrew his claim because he did not want to pay the policy’s deductible. 19. By letter dated February 20, 2008, Old Republic General Insurance Corporation (“Old Republic”), who is Respondent’s bonding company, acknowledged Complainant’s claim under Respondent’s Bond No. DLI1237681. Old Republic pointed out that A.R.S. § 32-1152(E) required Complainant to obtain a judicial judgment against Respondent prior to any further action being taken against Respondent’s bond. 20. Complainant has not obtained a judicial judgment against Respondent in this matter. 21. Respondent had interior repairs performed by another contractor. However, Complainant failed to present any evidence that the contractor was properly licensed. Since the cost of repairing the interior water damage was either $1,350.00, as stated in the Complaint, or $1,437.446, as testified to at the hearing, the contractor performing the repairs needed to be properly licensed by the Registrar. 22. Respondent is found to be responsible for both the subject roof leak and the interior damage caused by the January 27 2008 roof leak. 23. The failure of Respondent’s reroofing work to be watertight, its failure to perform corrective work to its deficient workmanship and its failure to cause repairs to the interior water damage caused by the leak are wrongful acts that substantially injured Respondent. 24. A review of the Registrar’s official records reveals that there are three open complaints and two resolved/settled/withdrawn complaints listed on Respondent’s contracting license.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record supports the allegation that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. Respondent’s reroofing work did not remain watertight for at least two years. 4. The evidence of record supports the allegation that Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. Respondent’s deficient workmanship its failure to remediate the leaking roof and its failure to cause the interior water damage to be repaired by a properly licensed contractor are wrongful acts that substantially injured Complainant. 5. The Administrative Law Judge concludes that Complainant is entitled to restitution from Respondent in the amount of $200.00 for the remedial repairs performed by Ameida Roofing, Inc., pursuant to A.R.S. § 32- 1156.01. However, the Administrative Law Judge further concludes that Complainant is not entitled to restitution for the interior water damage because he failed to establish that such work was performed by a properly licensed contractor.

RECOMMENDED ORDER Respondent’s License No. 200537 shall be placed on suspension on the effective date of the Order entered in Case No. 08-2430 until the Registrar receives written proof, and accepts such proof, that Respondent has paid Complainant restitution in the amount of $200.00. If Respondent pays Complainant restitution in the amount of $200.00 on or before the effective date of the Order entered in Case No. 08-2430, and the Registrar approves proof of such payment, then the above-provided license suspension shall not take place. In addition to the above-provided indefinite license suspension, if any, Respondent’s contracting license shall be placed on probation for 90 days, commencing on the effective date of the Order entered in Case No. 08- 2430 or the date on which notice of Respondent’s proper compliance with the terms of this Order is filed and approved by the Registrar, whichever is later. 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 will be 40 days from the date of that certification. Done this day, March 17, 2009

______________________________________ Brian Brendan Tully Administrative Law Judge

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

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] Complainant now seeks damages of $1,437.46, which is broken down as follows: $200.00 for Almeida Roofing; $1,150.00 for Dry Wall Done Right; and $87.46 for paint purchased at Loew’s.

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