ALJDEC decisions subject to certification as final

2011A-887-ROC · Registrar of Contractors · 2011-08-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 29, 2011, at 8:15 a.m. APPEARANCES: The Complainants appeared through Paul Esposito. 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 is the holder of a Class C-42 (No. 253462) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed a new roof on the Complainants’ residence during the month of May 2010. 3. Undisputed credible testimony and evidence established that the new roof starting leaking in October 2010. 4. The Complainants notified the Respondent of the leakage problem with the new roof, and the Respondent tried several unsuccessful repair attempts on the new roof. 5. When the new roof continued to leak and cause interior water damage in the Complainants’ residence despite the Respondent’s repeated repair attempts, the Complainants filed a formal complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. On March 16, 2011, the inspector issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ roof within fifteen calendar days from the date the Corrective Work Order was issued. 7. The Corrective Work Order provides, in pertinent part, as follows: The roof has had recurring leaks since it was applied. These leaks have caused corollary damage to the interior of the home. The contractor shall take necessary and proper action to correct the deficiencies in the installation of the roof; and to hire a properly licensed entity to repair the damage to the interior of the home. These areas include the dining room ceiling, the powder room ceiling and adjacent garage ceiling, the front portion of the garage ceiling and the ceiling in the bedroom off of the kitchen.

8. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 9. Undisputed credible testimony and evidence established that the Respondent’s construction work on the Complainants’ roof failed to comply with applicable workmanship and industry standards. 10. Undisputed credible testimony and evidence established that the Respondent abandoned the construction project leaving the Complainants with a leaking roof and extensive interior water damage. 11. There was no dispute that when the Respondent failed to comply with the terms of the Corrective Work Order, the Complainants retained an alternative contractor to properly correct their roof and properly correct the interior water damage in their residence, at a total cost of $7,928.66. 12. The Complainants’ action to contract with an alternative contractor to properly repair their roof and properly correct the interior water damage to their residence was shown to be reasonable and necessary under the circumstances. 13. Undisputed credible testimony and evidence established that the Complainants’ costs in the total sum of $7,928.66 for the proper correction of their roof and the proper correction of the interior water damage in their residence were reasonable and justified under the circumstances. 14. The Respondent is found to be fully responsible for the costs of the proper correction of the Complainants’ roof and the proper correction of the interior damage in the Complainants’ residence caused by the leaking roof. 15. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. Undisputed credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment or refusal to perform without legal excuse), A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner). 5. A.R.S. § 32-1156.01 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 order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order, the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has paid the Complainants restitution in this matter in the total sum of $7,928.66 for the costs of properly correcting the Complainants’ roof and interior water damages caused by the leaking roof. It is further recommended that if the Respondent properly accomplishes the above described restitutionary action, 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. It is further recommended, in addition to the above-provided penalties, if any, that the 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 the 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 the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the 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 29, 2011.

/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