ALJDEC
97F-P0266-ROC · Registrar of Contractors · 1998-02-18
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
|CHARLES E. MITCHELL, |(| | | |(|Case No.: P97-0266 | |Complainant, |(| | | |(|Docket No.: 97F-P0266-ROC | |vs. |(| | | |(| | |License No. 104992, Class C-42 of|(|Recommended | |David William Weden, d.b.a. |(|Decision and Order | |ARCHWOOD ROOFING COMPANY, |(| | |(INDIV.), |(| | | |(| | |Respondent. |(| | | |(| | | |(| |
HEARING: February 12th, 1998, at 8:30 a.m. Appearances: The Complainant, Charles E. Mitchell, appeared in his own behalf. The Respondent, Archwood Roofing Company, appeared through its owner, David William Weden. Administrative Law Judge: Grant Winston
This matter was brought on for administrative hearing on Thursday, February 12th, 1998. The Complainant, Mr. Charles E. Mitchell, appeared in his own behalf. The Respondent, Archwood Roofing Company, appeared through the owner, Mr. David William Weden. Testimony was given and other evidence admitted and, based on the record taken as a whole, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:
FINDINGS OF FACTS
1. The Respondent herein, David William Weden, doing business as Archwood Roofing Company, is, and at all times material hereto was, a licensed contractor in the State of Arizona, holding Class C-42 License Number 104992.
2. As evidenced by the written proposal of record, the Respondent contracted with one David Kelly on or about October 4th, 1995, to construct a new roof on 4951 South White Mountain Road, E-9, in Show Low, Arizona, for a consideration of $1,267.33. Neither party testified about David Kelly. The Complainant testified that he purchased the property from a Sylvia Crawford in November of 1996, and that she was the original owner and the other party to the subject contract with the Respondent. In either event, it is undisputed that the Complainant is not the party to the contract, but that the term of the contract’s guarantee, two years, extends to the time the Complainant purchased the home, and to the time of the damage of which the Complainant complains.
3. The mobile home park where the home is located is closed annually from November 1st through April 31st. Complainant resides during that time in Sun City, Arizona. When Complainant arrived in Show Low in May of 1997, to take up residence there, he discovered some shingles had come off the roof and others were loose. Complainant contacted Ms Crawford, from whom he purchased the home, and inquired of her as to the roof’s history. Ms. Crawford sent a letter to Complainant postmarked May 12th, 1997, in which she informed Complainant that the written guarantee was for a two-year period, but that she did not know if it covered storm-related damage. She related that the Respondent had once before repaired the roof after some shingles had blown off.
4. Complainant contacted the Respondent on or about May 14th, 1997, regarding the damaged roof. The Respondent sent workers to the house to repair or replace shingles that were loose or that had been blown off. These repairs were done without charge to the Complainant. The Respondent ascertained that there recently had been a wind storm in the mobile home park, with gusts in excess of sixty miles per hour, and that this event had caused other roof damage in the area. Respondent informed the Complainant that the windstorm was probably the cause of his roof’s damage. It is found that the windstorm did cause the damage to the Complainant’s home. Respondent further informed the Complainant that his warranty, or guarantee, stated in the contract, was with the previous owner and did not cover him, but that he, the Complainant, might have an insurance claim.
5. The Complainant was dissatisfied with the repair work, and once again called the Respondent to come and fix his roof. By this time the Respondent felt that he had done all he was required to do for the Complainant, and refused to make any further repairs. Complainant filed this Complaint with the Registrar of Contractors on or about June 20th, 1997.
6. The Registrar of Contractors’ Inspector, Mr. Buddy Brown, was assigned to the Complaint. Mr. Brown conducted a job-site inspection on July 10th, 1997. Complainant and Respondent were present. Respondent made some additional repairs immediately following the job-site inspection, repairing all shingles that the Inspector had found loose or damaged. Respondent at that time asked Complainant if there were any other tabs he thought should be repaired. Complainant responded that since he, the Complainant, was not on the roof, and that Respondent was the contractor and was on the roof, that he, the Respondent, would know better about that. Mr. Brown issued a Corrective Work Order on July 17th, 1997. Mr. Brown ordered the Respondent to “Correct all tabbing so as to be totally acceptable, the entire roof must be corrected/installed as per manufacturer’s specifications so as to be under warranty/backed by the manufacturer.” Such was ordered to be done within fifteen days.
7. Respondent called the Complainant after the issuance of the Corrective Work Order, and asked him if he was satisfied with the repairs. Complainant again said that since he was not a contractor he would defer to the judgment of the Respondent.
8. This administrative hearing was requested by the Respondent. Then, the Respondent sought to have the hearing dropped, but the Complainant wished to continue with it.
9. The Registrar of Contractors’ Inspector who took over the case from Mr. Brown is Mr. Jeff Betts. Mr. Betts conducted a pre-hearing job- site inspection the morning of the hearing. Mr. Betts found that the Corrective Work Order had been followed by the Respondent. He found that the nails used were proper as judged by industry standards.
Conclusions of Law
1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092.
2. The Respondent herein is charged with possible violations of A.R.S. §32-1154.A.7., 23., and 3., namely A.A.C. R4-9-108.
3. Respondent first raises the issue of lack of privity of contract as between him and the Complainant, inasmuch as the contract was between the Respondent and either Ms. Crawford or Mr. Kelly. This threshold issue is resolved against Respondent. The Arizona Supreme Court’s opinion in Richards v. Powercraft Homes, 139 Ariz. 242, 678 P.2d 427 (1984), addressed a similar issue of privity of contract as between a homebuilder and subsequent purchasers of the home. In furtherance of what it recognized as the public policy of the State of Arizona, the Court held that “privity is not required to maintain an action for breach of the implied warranty of workmanship and habitability.” Id., 678 P.2d at 430. The Supreme Court agreed with what it regarded as the “persuasive comments” of the Wyoming Supreme Court, written in Moxley v. Laramie Builders, Inc., 600 P.2d 233 (Wyo. 1979), to wit:
[T]he purpose of a warranty is to protect innocent purchasers and hold builders accountable for their work. With that object in mind, any reasoning which would arbitrarily interpose a first buyer as an obstruction to someone equally deserving of recovery is incomprehensible.
Id., 600 P.2d at 736.
4. The next issue is whether the contract’s warranty or guarantee covers windstorm damage such as that which caused the damage to Complainant’s roof. Clearly it does not. The Respondent’s guarantee was a guarantee of materials, and performance in accordance with specifications, and completion of the work in a substantial workmanlike manner. There is no evidence that this was not fulfilled by the Respondent.
5. Lastly, it is concluded that the Respondent completed all corrective work he was ordered to complete by the Registrar’s Inspector.
6. Respondent did not violate A.R.S. §32-1154.A.7., 23., or 3., as set forth in the Citation and Complaint.
Recommended Order
Wherefore, it is hereby recommended that Citation and Complaint Number P97-0266, together with the Complaint on which it is based, be dismissed.
Dated this 19th day of February, 1998.
OFFICE OF ADMINISTRATIVE HEARINGS
_________________________________ Grant Winston Administrative Law Judge
Original mailed this 19th day of February, 1998, to:
Michael Goldwater, Director Registrar of Contractors Attn: Joyce Armijo 800 W. Washington, 6th Floor Phoenix, AZ 85007
Transmitted by:
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