ALJDEC decisions subject to certification as final

2011A-562-ROC · Registrar of Contractors · 2011-09-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 24, 2011 APPEARANCES: Ernest Hernandez appeared personally. The Roof Doctor, L.L.C. was represented by its authorized representative, Rich Blunt. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. The Roof Doctor, L.L.C. (“Complainant”) is the holder of License No. 240969, a Class K-42 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On January 31, 2011, Ernest Hernandez (“Complainant”), the property manager for the subject property, filed a written Complaint with the Registrar alleging deficient roof repair by Respondent at a jobsite located at 5225 Highway 95, Fort Mohave, Arizona. The Registrar designated the Complaint as Case No. 2011-562. 3. In response to the filed Complaint, the Registrar’s assigned inspector, Cliff Corlett, performed a jobsite inspection to view Respondent’s workmanship at the subject property. As a result of that inspection, Inspector Corlett issue a Corrective Work Order dated February 14, 2011, that contained the following finding by Inspector Corlett and written directive to Respondent: The Respondents [sic] 3-12-2010 contract appears to guarantee roof work that will seal all roof leaks. At the onsite inspection, several tenants stated there were/are numerous roof leaks still. Respondent should determine cause and correct leaks by appropriate methods. Respondent must be granted access to all of property to determine leak locations.

4. The Registrar issued a Citation and Complaint in Case No. 2011-562 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (3), namely A.A.C. R4-9-108, and (23). 5. The Registrar forwarded Case No. 2011-562 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. The parties entered into a written Contract Agreement dated February 3, 2010, for Respondent to perform the following scope of work for Complainant: Fabricate and install parapet wall counter flashing along rear side of parapet wall full length of building Fabricate, paint and install bigger coping metal wall flashing at both ends of building Install five layer elastromeric roof system over lawyers [sic] office entrance area as needed Replace all screws with neopreme washers on complete roof as needed Install elastromeric patches on rest of roof areas as needed to seal all roof leaks Three year warranty against leaks

7. Complainant paid Respondent the sum of $5,044.92 for the work performed under the parties’ contract. 8. After Respondent completed its scope of work, the subject project continued to experience water leaks from the roof into the building. The interior of the building sustained water damage in numerous locations. 9. The parties’ contract states that Respondent would “seal all roof leaks.” 10. At the hearing, Inspector Corlett testified that Respondent failed to comply with the Corrective Work Order.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, and (23), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to comply with the Registrar’s written directive requiring Respondent to correct its deficient workmanship. RECOMMENDED ORDER Respondent’s License No. 240969 shall be suspended on the effective date of the Order entered in Case No. 2011-562 until the Registrar receives written proof, and the Registrar approves such proof, that Respondent has fully complied with the Registrar’s Corrective Work Order. If the Registrar receives written proof, and the Registrar approves such proof, that Respondent has fully complied with the Registrar’s Corrective Work Order on or before the effective date of the Order entered in Case No. 2011-562, then the above-provided license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s contracting license shall be placed on probation for a period of 120 days commencing on the effective date of the Order entered in Case No. 2011-562 or the date on which the Registrar approves proof that Respondent has fully complied with the Corrective Work Order issued in this matter, whichever is later. In addition to the above-provided penalties, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). 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 Case No. 2011-562 shall result in the automatic revocation of Respondent’s contracting 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. § 32-1101(A) (5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of the 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 that certification.

Done this day, September 13, 2011.

/s/ Brian Brendan Tully 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