ALJDEC decisions subject to certification as final

08F-2719-ROC · Registrar of Contractors · 2009-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 17, 2009

APPEARANCES: Complainants appeared on their own behalf and Respondent[1] appeared through its owner and qualifying party, Arturo Rodriquez (“Arturo”).

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. Pursuant to written contract, Complainants retained Rodriquez Roofing and Construction[2] to install a new roof on their home. The date of the contract is May 8, 2007. Complainants contend that there are deficiencies in the work performed and/or materials provided by Respondent and same are discussed n the findings below.

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

a. Complainants purchased the used home in question and later found out that they needed a new roof, since they were experiencing some degree of roof water leakage into the home. b. Arturo completed the new roof installation contract in May 2007 and Complainants paid the contract sum in full. c. Sometime after Respondent completed the work on the project, Complainants discovered that Respondent had failed to properly seal the tops of the parapet walls. Contrary to any claim by Arturo that he was not responsible for repairing the parapet walls, the applicable contract was entered into evidence and provides, in pertinent part, “cracks on the top of your parapet walls will be sealed then coated with an elastomeric roof coating.” d. On or about November 2007, Complainants experienced further roof leakage into the interior of the home. Leaks were discovered over the front window, in the garage, and inside an interior light fixture. Respondent came back to the home and performed remedial work. e. On or about January 2008 Complainants discovered that the interior light fixture was still leaking. Respondent again returned and made repairs. f. Due to the failure of Respondent’s remedial efforts to stop the interior water penetration, Complainants filed the instant Complaint with the Registrar of Contractors. The matter was assigned to one of the Registrar’s inspectors. g. The inspector convened a jobsite inspection on March 21, 2008. After performing a water test on the roof surface only, he could not find any water leak. He also determined that there was an issue with the front window that was leaking but said area was not part of Respondent’s responsibility, since there was no roof over the window. In addition, he only found minor ponding on the roof itself. After concluding his jobsite inspection, the inspector issued a Registrar of Contractors’ form RC-C-007, providing that the matter should be closed. h. Complainants disagreed with the inspector’s findings and requested the instant hearing. i. After the above-described jobsite inspection, Complainants experienced further water leakage episodes and Respondent again returned and performed further remedial work. Respondent’s remedial work again failed to stop the water leakage into the home. j. Finally, Complainant had their insurance company investigate the issue. Among other things, the people sent out from the insurance company found that water was entering the home from the parapet walls, which had not been properly sealed and coated by Respondent. Ultimately, Complainants hired another individual to fix the issue with the parapet walls and had their insurance company pay for the interior repairs. According to Complainants, they have no further water leakage problems after the new contractor performed his remedial work. k. Complainants did not provide any billing or invoice from the subsequent contractor but indicated that they paid $850.00 to an individual named Albert Leos (“Leos”). A review of official records of the Registrar of Contractors shows that Leos had his license suspended and ultimately revoked in 2007, prior to the time that he performed the repair work on Complainants’ home. l. Arturo testified that all of Complainants’ water leakage issues were related to her windows and/or walls. He contends that he did not agree to fix all of the parapet walls on the home. Notwithstanding his contention, the applicable contract does not show any limitation on the parapet areas to be repaired.

3. The evidence of record was sufficient to support a finding that Respondent failed to fully comply with his contract, by failing to properly seal and coat all of the parapet walls. This failure to properly seal the parapet walls, caused Complainants to suffer with continued water leakage into their home from said parapet walls. Respondent’s conduct in this regard is found to constitute not only substandard and unacceptable workmanship, but also a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

4. Arturo failed to contract with Complainants in either of his licensed contractor names and this also constitutes a violation of the State’s Contracting laws.

5. The instant matter is an administrative, disciplinary proceeding relating to a contractor’s license. The Registrar’s role in this matter is not one of a collection agency or judicial tribunal, but merely one duty- bound to determine whether a violation of this State’s contracting laws has occurred and, if so, impose a proper disciplinary sanction. Neither the filing of a complaint with the Registrar, nor a demonstration that a contractor violated state law, vests in a complainant the right to receive any particular individualized relief or an order imposing any particular discipline.

6. Notice is hereby taken of official Registrar of Contractors’ public records, which reveal that both of Respondent’s contracting licenses cited herein were canceled effective on July 18, 2008. Such canceled license status does not preclude this tribunal from conducting these administrative proceedings nor does it preclude the Registrar of Contractors from issuing separate disciplinary orders.

7. 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 (15), (7), and (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 K-42 and Class B licenses of Respondent, which are cited herein, shall be placed on a period of disciplinary probation for ninety (90) days. It is further recommended, in addition to the above provided penalty, that any restoration of Respondent’s contracting rights on the licenses cited herein, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of twenty-four (24) months, including future renewal periods, in the amount of $1,500.00 on both licenses, such bond or deposit to be for the sole benefit of persons injured as defined in A.R.S. § 32-1131 (3) and to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152 (D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided twenty-four (24) month period and only if no claims are then pending. 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, February 23, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

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

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

By ___________________________

----------------------- [1] For the purpose of this Decision and Order the term Respondent shall be used to refer to the companies owned by Arturo. [2] This was the name Arturo was contracting under. Arturo signed the applicable contract.

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