ALJDEC decisions subject to certification as final

2010A-119382687W-ROC · Registrar of Contractors · 2010-05-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 27, 2010 at 8:00 a.m. APPEARANCES: The Complainants appeared through Flora Shule. The Respondents appeared through their authorized representative, Leo Mark Blackwell. . ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made:

FINDINGS OF FACT 1. Respondent AZPROTEk Urethane Techniques L.L.L. (LLC) is the holder of License No. 254402, a Class K-42 License, issued by the Registrar of Contractors. License No. 254402 was suspended for lack of bond on January 10, 2010. 2. Respondent Leo Mark Blackwell dba AZ PROTEK URETHAN TECHNIQUES (Indiv.) is the holder of License No. 143534, a Class K-42 License, issued by the Registrar of Contractors. License No. 143534 was voluntarily canceled by the said Respondent in April, 2009. 3. This is a residential matter in which the Complainants purchased a new home from a bank that had obtained the residence in a foreclosure action. 4. The Complainants discovered that the roof on their new residence was leaking and allowing moisture to enter into the residence causing interior water damage. 5. The Complainants contacted their real estate agent who informed them that the Respondents were the roofing contractors for their new residence. 6. The Complainants then contacted the Respondents and informed the Respondents of the problems with their roof and requested repairs. 7. Credible testimony and evidence established that the Respondents admitted that they may have installed portions of the Complainants’ roof, but they denied that they had installed the entire roof and declined to correct the roof unless they were paid for the corrections to the roof. 8. The Complainants then informed the Respondents that if the Respondents continued to refuse to perform corrective action on their leaking roof, then the Complainants would obtain bids from three licensed contractors and cause the needed to corrective work to be performed on their leaking roof and file a complaint against the Respondents with the Registrar of Contractors. 9. On July 20, 2009, the Complainants sent the Respondents a letter (Exhibit No C-1) which provides, in pertinent part, as follows: We have now begun monsoon season and cannot wait any longer to repair the roof to avoid further damage to the interior of the home. This is your last chance to repair the roof. If it is not repaired immediately, we will hire another company to do the job to standard and file a complaint with the Registrar of Contractors. 10. When the Respondents again failed to correct their leaking roof, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 11. Credible testimony and evidence established that when the Complainants were informed that it would be several weeks or months before an onsite inspection could be scheduled for their residence, the Complainants chose the lowest bidder of the three bids they had obtained for corrective work on their roof and caused their roof to be corrected. 12. The Complainants then retained a licensed contractor to properly correct the water damaged drywall and ceilings in the interior of their new residence. 13. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection of the Complainants’ residence. The assigned Agency Inspector then moved to close the complaint based on the fact that the Complainants had already had the roof and the interior water damage corrected. 14. The Complainants disagreed with the Agency Inspector’s action and requested an administrative hearing. 15. Credible testimony and evidence established that the Complainants’ actions, in retaining an alternative roofing contractor to correct their leaking roof and a licensed contractor to correct their interior water damage so that they could inhabit their new residence, were reasonable and justified under the circumstances. 16. Credible testimony and evidence established that the Respondent constructed the entire roof for the Complainants’ residence and that the Complainants’ roof leaked causing interior damage to their residence. 17. Credible testimony and evidence established that applicable workmanship standards require that roofs not leak. 18. Credible testimony and evidence established that the roof installed by the Respondents on the Complainants’ residence did leak and that the Respondents are fully responsible for any defects, errors or omissions in the roofing work the Respondents performed on the Complainants roof. 19. Credible testimony and evidence established that the Complainants paid the alternative roofing contractor $6,796.61 for the correction of their leaking roof. 20. Credible testimony and evidence established that the other two bids from licensed roofing contractors for the correction of the Complainants’ leaking roof were substantially above the sum of $6,796.61 that the Complainants paid the alternative roofing contractor. 21. Credible testimony and evidence established that the sum of $6,796.61 was a reasonable and justified cost for the correction of the Complainants’ leaking roof. 22. Credible testimony and evidence established that the Complainants paid $2,129.99 to have the interior water damage corrected in their residence.

23. Credible testimony and evidence established that the interior water damage was caused by the leaking roof on the Complainants’ residence and that the cost of $2,129.99 for the repair of the interior water damaged was reasonable and justified. 24. Credible testimony and evidence established that the Respondents did not perform the framing on the Complainants’ residence and that the alternative licensed roofing contractor has now issued a five year warranty against leaking for the Complainants’ roof. No corrective action on the Complainants’ roof by the Respondents was shown to be necessary. 25. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondents are responsible for any corrective action on the “walk deck” on the Complainants’ roof. 26. There was no credible evidence of an unauthorized departure from or disregard of plans and specifications or applicable building codes by the Respondents. 27. Notice is taken of the Respondents’ prior License records with the Registrar of Contractors.

CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondents of the charged provisions of A.R.S. § 32-1154A(3); NAMELY, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). 2. A.R.S. § 1156.01 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 orders 1. In view of the foregoing, it is recommended that, on the effective date of the Registrar’s Order, the Class K-42 License of Respondent AZ PROTEK URETHANE TECHNIQES L.L.C. (LLC) be revoked unless the Registrar of Contractors receives and accepts written proof that said Respondent has paid the Complainants the sum of $8,926.60 as restitution for the Complainants’ costs of correcting the Complainants’ leaking roof and for the Complainants’ costs for causing the correction of the interior water damage in their residence caused by the leaking roof. 2. In view of the foregoing, it is recommended that, on the effective date of the Registrar’s Order, the Class K-42 License of Respondent Leo Mark Blackwell dba AZ PROTEK URETHANE TECHNIQUES (Indiv.) be revoked unless the Registrar receives and accepts written proof that said Respondent has paid the Complaints the sum of $8,926.60 as restitution for the Complainants’ costs of correcting the Complainants’ leaking roof and for the Complainants’ costs for causing the correction of the interior water damage in their residence caused by the leaking roof. 3. It is further recommended that if either of the Respondents properly pays the above described restitution, on or before the effective date of these Orders, then the above provided License revocations shall not take place and these matters shall be closed. 4. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification. Done this day, May 27, 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