ALJDEC decisions subject to certification as final

2010A-22337617-ROC · Registrar of Contractors · 2010-08-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 19, 2010 at 8:00 a.m. APPEARANCES: The Complainants appeared through Dan Rasar. The Respondent appeared through its qualifying party, Paul Lemaire. 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 has voluntarily canceled License No. C42R-246865-R. 2. This is a residential matter where the Respondent applied a new foam roof on the Complainants’ residence for the total sum of $16,240.00. 3. The Complainants were dissatisfied with the Respondent’s workmanship and with the Respondent’s failure to correct its work on the new foam roof despite repeated their requests that it do so. 4. When the Respondent failed to comply with the Complainants’ repeated requests the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. 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 Complainants’ roof. 6. The Corrective Work Order provides, in relevant part, as follows: 1. Depth of the foam was not installed one inch thick as contracted for- respondent is to determine that the foam is one inch as contracted for and if not to correct by the appropriate means. 2. Foam roofing material has bubbled up in many areas - contractor to correct by the appropriate means. 3. Ceramic granules that were to be applied in the finish coat are missing in the repaired areas of the roof- contractor to correct by the appropriate means. 7. There was no dispute that the Respondent failed to comply with the terms of the Corrective Work Order. 8. Undisputed credible testimony and evidence established that the new foam roof installed by the Respondent was also leaking and that the water leaking into the Complainants’ residence was causing moisture damage to the ceilings and interior drywall in the Complainants’ residence. 9. When the Respondent failed to comply with the terms of the Corrective Work Order the Complainants obtained roofing inspections of the new foam roof from three different licensed roofing contractors. 10. Credible testimony and evidence established that all three roofing contractors found that the new foam roof installed by the Respondent failed to comply with applicable workmanship and industry standards. 11. All three roofing contractors found that the new foam roof could not be properly corrected and the three roofing contractors submitted bids for the complete removal and replacement of the foam roof installed by the Respondent. 12. The Complainants then selected the roofing contractor with the lowest bid and caused the leaking foam roof installed by the Respondent to be removed and replaced by the new roofing contractor. No further corrective action on the foam roof installed by the Respondent is possible. 13. Undisputed credible testimony and evidence established that the Complainants’ actions in causing an alternative contractor to completely remove and replace the new foam roof installed by the Respondent, were necessary in order to prevent further water damage to their residence and that their actions were reasonable and justified under the circumstances.

14. Credible testimony and evidence established that the Complainants received no value for the $16,240.00 that they paid the Respondent. 15. Credible testimony and evidence established that the Respondent departed from or disregarded applicable plans and specifications for the construction of the new foam roof that the Respondent installed on the Complainants’ residence. 16. Credible testimony and evidence established that the Respondent’s construction work on the foam roof that the Respondent installed on the Complainants’ residence failed to comply with applicable workmanship and industry standards. 17. Credible testimony and evidence established that the Respondent failed to properly display its license number as required by applicable statute. 18. Credible testimony and evidence established that the Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms of the Corrective Work Order issued in this matter. On the contrary, credible testimony and evidence established that the Respondent failed to properly correct the Complainants’ foam roof despite repeated opportunities to do so and that the Respondent’s efforts appear to have been directed to delay and excuse, rather than to achieve, compliance with the terms of the Corrective Work Order issued in this matter. 19. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW

1. Credible testimony and evidence supported findings which establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154(A) (2) (Departure from or disregard of plans or specifications), A.R.S. § 321154(A) (23) (Failure to take appropriate corrective action), A.R.S. § 32-1154(A) (3); NAMELY, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner) and A.R.S. § 32-1154(A) (13); NAMELY, A.R.S. § 32-1124(B) (Failure to properly display license number).

RECOMMENDed order

In view of the foregoing, it is recommended that License Number C42R.246865-R of Accurate Foam Roofing LLC (LLC) be revoked. 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. 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 23, 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