ALJDEC decisions subject to certification as final

2010A-1188816-ROC · Registrar of Contractors · 2010-10-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 12, 2010 at 8:15 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Sandi Wolf. The Respondent failed to appear. 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’s License No. K-42.157357-D has been suspended for non- renewal. 2. This is a commercial matter where the parties entered into a written construction agreement wherein the Respondent agreed to install a new metal roof system on the Complainants’ commercial property, identified as the Candle Factory Building, for the total sum of $61,000.00. 3. There was no dispute that the Complainant paid the Respondent an agreed upon down payment and that the Respondent began work on the construction project. 4. Undisputed credible testimony and evidence established that the construction project was to be completed by May 8, 2009. 5. Undisputed credible testimony and evidence established that the parties agreed that if the construction project was not completed on or before May 8, 2009 that the sum of $1,000.00 per week would be deducted from the remaining contractual amount owed to the Respondent. 6. Undisputed credible testimony and evidence established that on May 8, 2009 the roof was not completed and that the Respondent was showing little interest in actually completing the roof. 7. Undisputed credible testimony and evidence established that the Complainant found that several of the Respondent’s employees were sleeping on the roof while they were supposed to be working. 8. Undisputed credible testimony and evidence established that the Complainant found that several of the Respondent’s employees were smoking in non-smoking areas of Complainant’s commercial building. 9. Undisputed credible testimony and evidence established that the Complainant found that several of the Respondent’s employees were smoking marijuana at the construction site. 10. Undisputed credible testimony and evidence established that despite the Respondent’s very apparent problems on the construction site the Complainant continued to advance the Respondent additional monies to purchase materials for the construction project. 11. There was no dispute that despite the Complainant’s best efforts to assist the Respondent in completing the construction project the Respondent continued to procrastinate and continued to supervise his employees in a lackadaisical and ineffectual manner. 12. There was no dispute that when it became apparent that the roof system could not be completed any where near the May 8, 2009 deadline the Respondent simply stopped construction work on the new roof system and abandoned the construction project leaving the Complainant’s with an unfinished roof. 13. There was no dispute that the Complainants had paid the Respondent a total of $52,000.00 at the time Respondent abandoned the construction project. 14. Undisputed credible testimony and evidence established that the Complainant’s roof is far from complete and that the completed portion of Complainant’s roof fails to comply with applicable code requirements. 15. Undisputed credible testimony and evidence established that the Complainant has received little, if any value, for the $52,000.00 that it has paid to the Complainant. 16. When the Respondent abandoned the construction project and refused to return to the construction site the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 17. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s commercial building. 18. The Corrective Work Order provides, in pertinent part, as follows: 1. Finish installing metal roof, metal fascia and ac stands per contract (not completed). This were [sic] approximately 26 panels on one roof, short roofs, two parapet walls, and some ac stands that were not finished. Contractor to correct by appropriate means. 2. Fix leaks in overhangs, units 612, 614, 620 and all damages that has [sic] occurred from the leaks, drywall, flooring and loss of inventory. There was drywall damage and paint needed at some of the areas and Contractor agreed to correct these along with the leaks. Contractor to correct by appropriate means and per jobsite agreement. …. 6. Fascia not completed and not fully wrapped. Per contract fascia to [sic]. Contractor to correct or finish by appropriate means. …. 8. Verification of installation of 4x8 sheets of galvanized metal flashing to firebreak wall of pitch 18” with snow seal at base. This was not finished at time of jobsite. Contractor to correct or finish by appropriate means. 9. Verification of reglet metal at walls has been installed and repeated at all drain pits to completion. This was fixed and completed and could be seen at most places but one was in need of repair. Contractor to correct by appropriate means. …. 12. Verification of rubber boot flashings at all pipes have been installed per contract. There were some missing and need to be installed. Contractor to correct or finish by appropriate means. 19. Undisputed credible testimony and evidence established that the Respondent failed to even respond to the Corrective Work Order and that the Respondent performed no corrective work on the Complainant’s roof. 20. Undisputed credible testimony and evidence established that the Respondent’s construction work on the Complainant’s roof failed to comply with applicable workmanship and industry standards. 21. Undisputed credible testimony and evidence established that the Respondent’s construction work on the Complainant’s roof failed to comply with applicable code requirements. 22. Undisputed credible testimony and evidence established that the unfinished roof system leaks. 23. There was no dispute that the leaking roof has caused extensive damage to the interior and contents of the Complainant’s commercial building. 24. This Respondent should not be allowed to wreak any further havoc on the business of the Complainant. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent cause another properly licensed roofing contractor of the Complainant’s choice to properly correct and complete the roofing project on the Complainant’s commercial building. 25. 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) (23) (Failure to take appropriate corrective action) and A.R.S. § 32-1154 (A) (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 that that the Respondent’s License No. K-42.157357-D be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives and approves written proof that the Respondent has caused a properly licensed roofing contractor of the Complainant’s choice to fully comply with the terms and conditions of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent, utilizing a properly licensed roofing contractor of the Complainant’s choice, causes the proper accomplishment of the above described corrective action, 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. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. It is further recommended, in addition to the above provided penalties, if any, that any continuation or restoration of the Respondent’s contracting rights, whether or not probationary, shall be subject to a condition that the 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, 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 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, October 14, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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