ALJDEC decisions subject to certification as final

09F-T0196-ROC · Registrar of Contractors · 2009-08-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 12, 2009 at 1:30 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and 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 KB-02 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent entered into a written agreement to remove six curb-mount skylights on the Complainant’s roof and replace them with six new self-flashing skylights. 3. There was no dispute that the Respondent removed the old skylights and installed new skylights on the Complainant’s residence. 4. Shortly after the installation of the new skylights, the Complainant’s roof leaked and the Complainant had the roof inspected by a licensed roofing contractor. 5. The roofing contractor found that the Respondent had installed new curb- mount skylights rather than the self-flashing skylights specified in the parties’ written agreement. 6. The Complainant then demanded that the Respondent remove the new curb- mount skylights and replace them with the specified self-flashing skylights within a ten day period of time. 7. When the Respondent failed to comply with the Complainant’s demand, the Complainant caused the roofing contractor to remove and replace her entire roof including the six skylights installed by the Respondent. 8. The Complainant then demanded the return of the $1,400.00 that she had paid the Respondent. When the Respondent failed to comply with the Complainant’s demand, she filed a formal Complaint against the Respondent with the Registrar of Contractors. 9. Credible testimony and evidence established that the Complainant caused her leaking roof and skylights to be replaced by the roofing contractor because the Complainant was required to take appropriate action in order to prevent further water damage to her residence. The Complainant’s actions are found to be reasonable and justified under the circumstances. 10. There was no dispute that the parties’ written agreement specified that the Respondent was to install six new self-flashing skylights on the Complainant’s roof. 11. There was no dispute that the Complainant paid the Respondent $1,400.00 for the installation of the six new self-flashing skylights. 12. The Respondent admitted that he had installed six new curb-mount skylights rather than the specified self-flashing skylights. 13. Credible testimony and evidence established that the Complainant did not authorize the substitution of curb-mount skylights for the specified self-flashing skylights and that the Respondent did not inform the Complainant of the substitution. 14. Credible testimony and evidence established that the Complainant received no value for the $1,400.00 that she paid the Respondent. 15. The Respondent’s actions, in knowingly installing the wrong type of skylights, failing to obtain the Complainant’s authorization for the substitution of curb-mount skylights for self flashing skylights and in failing to notify the Complainant of the substitution, are found to constitute a wrongful act. 16. Notice is taken of the Respondent’s excellent 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 (A) (3), namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). 2. A.R.S. § 32-1156.91 provides as follows: After a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.

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 KB-02 License shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has, as restitution, paid the Complainant $1,400.00. It is further recommended that if the Respondent properly pays the restitution to the Complainant on or before the effective date of this Order then the above provided License suspension 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, August 13, 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