ALJDEC

97F-1852-ROC · Registrar of Contractors · 1998-01-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 15, 1998 APPEARANCES: Dave and Jean Jordan on their own behalf; Frank Vass, president, on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

Based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to written contract, Respondent agreed to construct a shell structure for Complainants at 5539 East Hondo Bow, Cave Creek, Arizona (the “Home”). Complainants allege certain deficiencies in the work performed by Respondent as set forth below.

2. Complainants moved into the Home on July 1, 1996 and experienced water leakage from the roof in the family room ceiling in September, 1996. Complainants contacted Respondent and spoke with Frank Vass, Respondent’s president. Mr. Vass represented that he would come out to the Home in response to the telephone call but did not do so. Prior to completion of construction of the Home, Complainants noticed some leakage in the same area and brought it to Mr. Vass’ attention. Complainants were led to believe that Respondent had corrected that problem prior to their moving into the Home. 3. Subsequent to the September, 1996 rainfall which caused leakage as noted above, during another rainstorm Complainants experienced further water leakage in the family room and leakage in the second bedroom (the “baby’s room”). The leakage resulted in interior damage in both rooms. Complainants contacted Respondent with no response. 4. On January 21, 1996, Complainants filed a complaint with the Registrar of Contractors concerning deficiencies in the work Respondent performed at the Home. On February 27, 1997, Registrar of Contractors Inspector Mark Schweiger conducted a jobsite inspection of the Home. As a result of the jobsite inspection a Corrective Work Order was issued requiring Respondent to perform corrective work as follows: a) correct torch applied roofing; b) cleanup debris on roof; c) correct 5 of 6 doors so they are plumb, have consistent margins and operate properly; d) complete overhang on south side of residence; e) install false beams per agreement; and f) repair interior damage due to leakage from roof. 5. The weight of the evidence presented established that Respondent did not comply with the terms of the above-mentioned Corrective Work Order within days of issuance as required. 6. On January 14, 1998, Inspector Schweiger performed a pre-hearing jobsite inspection and observed the following :a) that new roofs had been installed on the main structure of the Home and the shed. However, both roofs were not properly installed in accordance with industry standards in that there are areas where leakage still occurrs; b) the roof had been cleaned up; c) the front door had uneven margins, a splitting door latch and splitting lamination; the double door leading to the shed appeared to be in the same deficient condition as observed on February 27, 1997; d) tile had been installed on the overhang but was not installed in accordance with industry standards and there was no flashing on the overhang; e) the false beams were not installed; and f) interior repairs had been started but not completed. Further, Inspector Schweiger observed new interior damage that occurred as a result of continued leakage from the roofs. 7. During the hearing, Respondent represented that he had tried to contact Complainants to complete the roof repairs but was unable to do so and asserted that Respondent was not responsible for any interior doors or the false beams as that was not part of the contractual arrangement between the parties. 8. Although the contract between the parties was characterized as constructing a shell, the contract expressly provides for installation of all windows and doors. Respondent is therefore responsible for proper installation of all doors in the Home. However, the weight of the evidence establishes that, as of the date of the hearing, only the front door and double door to the shed are not installed in a correct manner. 9. The weight of the evidence shows that the roof repairs over the main structure of the Home and the shed, the two doors (the front door and double door to the shed) and the overhang were not completed appropriately and do not meet minimum workmanship standards. Respondent has not installed the false beams and started but not completed interior repairs to the Home. 10. The evidence of record established that Complainants have received compensation from their insurance carrier for the interior damage to the Home. Therefore, although Respondent is responsible for the interior damage caused by the water leakage from the roofs, there will be no recommendation for the Respondent to complete such repairs in light of Complainants having received compensation through insurance. However, nothing herein shall preclude Complainants from pursuing any monetary damage that they may have incurred as a result of Respondent’s action which caused interior damage to the Home. 11. The testimony of Complainants and Mr. Vass concerning a verbal agreement to install false beams are sharply contrasting to the extent that the Administrative Law Judge has no reason to disbelieve the testimony of the parties regarding this issue. Therefore, Complainants failed to sustain their burden of proving that the false beams were the contractual responsibility of Respondent. CONCLUSIONS OF LAW The evidence of record established that Respondent has violated the provisions of A.R.S. 32-1154(A) (7), (23) and (3), namely, A.A.C. R4-9-108.

RECOMMENDED ORDER Based on the above, it is recommended that on the effective date of the Order entered in this matter, the Class B license of Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has caused a properly licensed contractor other than Respondent or any subcontractor who previously performed work at the Home on Respondent’s behalf, to accomplish appropriate and effective remedial work as to the following: the roof on the shed and the roof on the main structure of the Home; the front door and double door to the shed, and the overhang. It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the above-mentioned suspension shall not take place. In addition to the above, it is further recommended that the Respondent pay a civil penalty of $125.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). The failure of Respondent to pay the entire amount of the 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. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. 32-1101(A)(3) unless payment of any outstanding prior civil penalty is tendered to the Registrar of Contractors. Done this day, January 21, 1998.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo

By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826