ALJDEC decisions subject to certification as final

08F-T1234-ROC · Registrar of Contractors · 2009-07-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 20, 2009 at 1:30 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas

The following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class K-65 License issued by the Registrar of Contractors. 2. The Respondent installed the windows on the Complainant’s new residence. 3. There was no dispute that the Complainant experienced major water leaks around several of the windows in her new residence and that she repeatedly complained of the problem to the Respondent and the general contractor for the new residence. 4. When the Respondent and the general contractor were unable to locate and correct the source of the water leakage around the windows, the Complainant filed a formal Complaint against the Respondent. 5. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection. The Inspector observed the fact that there was a construction problem around the windows which allowed moisture into the interior of the Complainant’s residence but was not able to destruct the residence around the windows to determine if the water leakage problem was caused by any poor workmanship by the Respondent. The Inspector then moved to close the Complaint. 6. The Complainant then retained an alternative window contractor to open the residence around the leakage problem. 7. Undisputed credible testimony and evidence established that the alternative window contractor observed that the Respondent had failed to install required flashing around the windows in the Complainant’s residence and that the Respondent’s failure to install required flashing allowed the moisture leakage around the windows to occur. 8. The Complainant then caused the alternative licensed window contractor to correct the problem around the leaking windows at a cost of $1,914.04 and requested and administrative hearing. 9. Undisputed credible testimony and evidence established that the Complainant’s actions in retaining an alternative contractor to correct the flashing around her windows and prevent further water damage to the interior of her residence were reasonable and justified under the circumstances. 10. Undisputed credible testimony and evidence established that the Complainant’s cost of $1,914.04 was reasonable and justified under the circumstances. 11. The Respondent’s actions, in failing to perform its work in a professional and workmanlike manner and in asserting that it had installed required flashing around the Complainant’s windows when in fact the Respondent had failed to install the required flashing, are found to constitute a wrongful act. 12. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. § 32-1154: (A)(7) (Wrongful Act) and (3), namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s order that the Respondent’s Class K-65 License shall be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has paid the Complainant the sum of $1,914.04 as restitution for the Complainant’s expenses in correcting the Respondent’s poor workmanship. It is further recommended that if the Respondent properly pays the above described restitution amount on or before the effective date of this Order then the above provided License revocation shall not take place and that this matter be closed. 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 the certification. Done this day, July 20, 2009.

______________________________________ M. Douglas 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 ___________________________

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Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com