ALJDEC decisions subject to certification as final

08F-2759-ROC · Registrar of Contractors · 2008-12-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 18, 2008

APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its member and qualifying party, Isaac Villegas (“Villegas”). 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 contract, Complainant retained Respondent to install a new roof on her home. Complainant alleges certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. The salient portions of Complainant’s testimony included the following:

a. Complainant’s original roof was leaking and thus, she contacted Respondent to look at the problem on her roof. At the time she initially contacted Respondent, there already was a degree of water damage to the interior of her master bedroom. b. After Villegas examined her roof and the parties discussed the situation, Complainant elected to have the entire roof replaced, primarily since she believed the roof was old and had served its useful life. Respondent installed a new roof on Complainant’s home in the latter part of 2004. c. Complainant contends that it only rains about once a year in the greater Phoenix area and sometime after it rained, subsequent to having the new roof installed by Respondent, she continued to observe water leakage in her master bedroom area. She indicated that she contacted Respondent about the continued leakage and he came out to the home and went on the roof to do something about the problem. d. After the initial return visit to her home by Respondent, she stated that once it rained again, she still had water leakage and so Respondent was contacted to return to her home. Villegas returned to the jobsite but merely looked at the roof, without doing anything. e. On the third return visit to her home, Complainant testified that Villegas cut holes in her bedroom ceiling and then performed a water test. He charged her $400.00 for this procedure and she paid the billing. Once again, the next time it rained, she experienced further water leakage in the same room. f. Finally, in June 2008, she contacted another roofer to correct her water leak problem. The new roofer charged her $1,250.00 for the work that it performed and she testified that the roof has not leaked since she had the remedial work performed by the new roofer. g. Complainant seeks restitution from Respondent for the $1,250.00 she paid to have another roofer stop the water leakage and also seeks a return of the $400.00 she paid to Respondent for the procedure wherein he cut holes in her bedroom ceiling and performed a water test. In addition, she claims she paid approximately $400.00 to have another contractor repair her water damaged drywall in the master bedroom area of her home. h. Although Complainant was unable to testify to any specific dates that Respondent returned to the home in regard to her complaints about the roof continuing to leak after rainfall, she contends that she called him every year between the time the new roof was installed and the time that she ultimately had the leak problem repaired by others. i. According to Complainant, she had never heard of the Registrar of Contractors and it was only after she received bids from other contractors to repair her roof leak that she was told to file a complaint against Respondent. Thus, she filed the instant Complaint in February 2008, prior to finally retaining a new contractor to fix the problem with her roof.

3. After the Complaint was filed with the Registrar of Contractors the matter was assigned to one of the Registrar’s inspectors. The inspector convened a jobsite inspection and Respondent did not appear for the inspection.

4. The salient points of the inspector’s testimony included the following:

a. On March 31, 2008 (almost 4 years after Respondent installed the new roof) he conducted the aforementioned jobsite inspection. At the time of said inspection, he observed that the roof jacks were not correct, in that they were buckled and loose. He also found issues with the chimney flashing, in that there was no mastic applied to the flashing and due to the manner of construction of the roof on the rear side of the chimney, water ponded in said area, instead of shedding water away from the area. He also found that there was no proper cricket at the chimney area of the roof. b. After completing his jobsite inspection, he issued a Corrective Work Order (“”CWO”). The CWO in one portion stated that Respondent’s license had expired and thus, Respondent could not “do or subcontract the recommended corrective work listed in the directive. The other portion of the CWO stated that the “contractor to correct the following by appropriate means” the water damaged drywall, the roof leaks, and the chimney flashing.

5. Respondent took no action in regard to the above-described CWO and thus, Complainant hired another contractor to perform the remedial work and requested the instant hearing.

6. Villegas testified at the hearing and salient portions of his testimony included the following:

a. His position is that the instant Complaint was filed beyond the applicable statute of limitations. b. He presented evidence to show that the new roof was completed by Respondent on or about November 8, 2004. c. According to him, the first he heard back from Complainant was on or about April 16, 2006 and the contact at that time was only in regard to having Respondent fix the water stains in the master bedroom. There was no mention of continuing roof leaks at that time. d. He testified that he completed the interior repairs to the ceiling in April 2006 and was paid, by check, in the amount of $434.00. He did not perform any roof work at that time. e. He submitted the $434.00 check into evidence as Respondent’s exhibit “G.” He contends that when the check was originally presented to him in 2006, the memo portion of the check showed that it was for the “ceiling.” He claims that sometime afterwards, Complainant added the words “through roof.” It is very interesting to note that the words “through roof” on the memo portion of the check are in a distinctly different ink than the rest of the check. f. On or about May 5, 2006 Complainant contacted him about installation of an outdoor cat enclosure. g. It was not until February 2007 that Complainant contacted him about investigation of water leakage into her master bedroom. It was at that time that he cut holes in the ceiling to determine the cause of the water leak and found same to be attributable to the stucco work around the chimney. His original roof job excluded any work around the stucco on the roof.

7. As demonstrated above, sharply conflicting testimony was presented by the parties regarding whether or not Respondent performed any water leak repair work between the November 2004 installation of the roof and the year 2007. Notwithstanding Complainant’s position, she was unable to present any specific dates as to when Respondent was on the roof to make the alleged repair attempts to fix the leaks. Her position, that it only rains one time per year in the greater Phoenix area, tends to strain credibility. In addition, it appears most unusual that if she had ongoing water leakage that she would have waited almost four (4) years to file a Complaint with the Registrar of Contractors or at least file a lawsuit against Respondent.

8. The evidence of record is found to be inadequate to support any finding that Respondent performed a roof water leak repair on Complainant’s roof between November 2004 and February 2007. Thus, based on the facts presented herein and the conclusions of law set forth below, this matter should be dismissed.

CONCLUSIONS OF LAW

1. A.R.S. § 32-1155 (A) provides for the “the filing of a written complaint with the Registrar charging a licensee with the commission, within two years prior to the date of filing the complaint, of an act which is cause for suspension or revocation of a license…” This section, like any statute of limitation, is a statute enacted as a matter of public policy in Arizona to fix a time within which complaints must be filed.

2. For construction work performed on an existing home, the statute of limitation begins to run from the date of completion of the project at issue. In the instant matter the roof project was completed in November 2004 and therefore, since there was no finding that Respondent performed any further work on the roof between November 2004 and February 2007, the statutory period for filing a Complaint on this roof expired in November 2006. Therefore, the date upon which this Complaint was filed must necessarily be viewed as being beyond the time allowed for filing Complaints with the Registrar of Contractors. Thus, the instant Complaint should be dismissed.

RECOMMENDED ORDER In view of the foregoing, it is recommended that this Citation (no. 08-2759), together with the Complaint upon which it is based, be dismissed.

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, December 24, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

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

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

By ___________________________

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