ALJDEC

97F-P0263-ROC · Registrar of Contractors · 1998-06-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 29, 1998 APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its owner and qualifying party, George Waldren. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Respondent was retained by Complainant, who was acting in the capacity of owner-builder, to install a metal roof system on Complainant’s new residential construction project. Complainant alleges certain deficiencies in the work performed and materials provided by Respondent and same are discussed in the findings below. 2. The weight of the evidence of record was sufficient to support a finding that the following constitute substandard and unacceptable workmanship attributable to Respondent’s installation of the metal roof system: a. Unnecessary splices were installed in specified sections of the metal roof panels. In addition, the areas in question were shown to have inadequate lapping of the spliced sections. b. Major areas of the ridge cap installation were not adequately secured to the over-all roof system. c. Specified areas of the metal panels reveal panel clip spacing in excess of the spacing allowed by applicable manufacturer’s specifications. In addition, there were areas of the metal panel installation wherein no panel clips were installed. d. Respondent failed to flash the chimney area of the roof in accordance with manufacturer’s specifications. Moreover, Respondent’s flashing procedure in this area failed, as manifested by water leakage onto the interior area of the fireplace. e. Specified sections of the front hip roof area reveal an absence of the required interlocking panel flange. f. Applicable contract plans and specifications required the installation of specified vinyl inserts to be installed the full length of the metal panels. Notwithstanding said contact specification, it was shown that in specified areas of the roof Respondent merely inserted very short vinyl pieces which failed to run the entire length of the metal panel. g. The roof panels failed to completely cover certain sections of the roof deck and/or roofing underlayment. h. Specified sections of the metal roof system revealed excessive and unacceptable dents. i. Rain gutter down-spouts fabricated and installed by Respondent leaked water. j. Respondent failed to properly lock the metal roof panels into the gutter system on the patio area, as required by applicable manufacturer’s specification. 3. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. Notwithstanding the terms of said Agency directive, Respondent failed to comply with same. 4. Respondent testified that he failed to comply with the above- described Agency directive due to his contention that Complainant had failed to pay a significant balance due and owing on the contract. Although this serves to explain Respondent’s failure to comply with the Agency directive, it does not excuse same. Evidence of record demonstrated that the Registrar of Contractors is typically not concerned with any outstanding money issues between a contractor and a homeowner, merely that determined construction deficiencies be rectified. When the aforementioned Agency directive was issued, Respondent should have completed all of the ordered corrective work and then, in the event Complainant failed to pay those sums claimed due and owing, a civil action could have been commenced to attempt to collect on any such claimed unpaid contact balance. Thus, under the salient facts and circumstances of the instant case, Respondent’s failure to comply with the terms and conditions of the Agency directive constitutes a violation of the applicable charged section of the State’s Contracting laws. 5. Subsequent to Respondent’s failure to comply with the aforementioned Agency directive, Complainant retained the services of others to complete the majority of the required remedial work. As of the date of the instant hearing, the only issues not previously repaired were the removal of the interlocking flanges on the front hip roof area and a portion of the stonework for the chimney that had to be removed to correct Respondent’s inadequate flashing in said area has not been re-installed. 6. Complainant claims significant repair costs for the remedial work performed by others and also entitlement to specified contact specified liquidated damages due to Respondent’s failure to complete the project on or before the contract deadline date. As stated in the foregoing Findings of Fact, Respondent claims entitlement to an unpaid portion of the contract. In addition, Respondent contends that the repair costs sustained by Complainant were excessive. Thus, a significant money dispute exists between these parties and the Registrar of Contractors, acting through an administrative license disciplinary hearing, is the inappropriate forum to adjudicate and liquidate the type of money dispute presented herein. The jurisdiction for a resolution of this money dispute is properly found before a civil court of competent jurisdiction. 7. Complainant is concerned that other areas of the roof, not previously repaired or examined, may not contain the required clip spacing or required vinyl strip inserts. However, Complainant’s mere speculation based on what he found in the repaired areas is insufficient to support any finding of deficiencies in other areas of the roof system. Thus, Complainant failed to sustain the requisite burden of proof necessary to establish any existing roof deficiencies other than the areas of the roof previously inspected which formed the subject matter of the instant hearing. 8. Notice is hereby taken of official Registrar of Contractors public records, which reveal that Respondent’s contracting license has been canceled since January 22, 1998. Such canceled license status does not preclude this tribunal from conducting these administrative proceedings nor from issuing separate disciplinary orders. Moreover, Respondent’s existing canceled license status must be considered when determining appropriate penalties in this case. Little, if any, motivation would exist for any Respondent contractor to undertake and complete necessary remedial work in order to avoid a suspension of an already canceled license. 9. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), (2) and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Class C-05 license of Respondent shall be revoked on the effective date of the Order entered in this matter. It is further recommended that if Respondent provides the Registrar with written proof that it has caused a properly licensed contractor or contractors to correct the area of the front hip roof where there are no interlocking flanges and to re-install the stonework on the chimney on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Respondent’s Class C-05 license shall be placed on a period of disciplinary probation for sixty (60) days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, if the alternative penalty is applicable and in addition to the above-provided alternative penalties, that Respondent pay the sum of $125.00 to the Registrar of Contractors 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 this Order’s effective date 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. § 32-1101(A) (3), unless payment of any outstanding civil penalty is tendered.

Done this day, June 3, 1998.

_________________________________ MARK A. SILVER Administrative Law Judge

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

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

By _______________________________

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