ALJDEC

98F-0180-ROC · Registrar of Contractors · 1998-03-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 27, 1998. APPEARANCES: Complainant appeared personally. Respondent did not appear.

ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

The commencement of the hearing was delayed for approximately thirty minutes to allow for the late arrival of an authorized employee or attorney representing Respondent. The hearing was then conducted. Respondent never appeared. 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. Complainant is the owner of a residence located at 1735 West Wickeup, Phoenix, Arizona. 2. Complainant’s residence sustained major storm damage on August 14, 1996. 3. Complainant filed an insurance claim for the storm damage with her insurance carrier. 4. Complainant’s insurance carrier referred the Respondent to her. 5. Complainant and Respondent entered into a written agreement dated September 9, 1996, for repairs to Complainant’s house. 6. It is determined that Respondent did not timely complete the repair project. The written agreement provided that the work would be completed by October 16, 1996. The contract further stated that time was of the essence. There is evidence that the work had not been timely or properly completed as late as Thanksgiving Day of 1996. 7. Respondent was required to remove Complainant’s existing roof and replace it with a modified bitumen roof. The cost for the roof was $7,123.00. 8. The weight of credible and reliable evidence of record supports a finding that Respondent did not properly install a modified bitumen roof. 9. Respondent is found not to have properly installed the present roof to minimum workmanship standards. Prior to the storm, Complainant never experienced any roof leaks. Since Respondent install the new roof, Complainant has had numerous major roof leaks resulting in significant damage to the interior of her home and to her personal contents. The deficient roof has cause significant moisture to invade the interior of Complainant’s home resulting in mold growing in numerous areas. Such conditions are found to be a serious health condition to Complainant, who has allergies, and to her family residing in her residence. Complainant has incurred considerable expenses in buying plastic to cover her roof and interior property whenever it rains. 10. Respondent’s employee who installed the new roof never installed a roof before performing work on Complainant’s house. 11. Complainant subsequently filed a complaint against Respondent with the Registrar of Contractors alleging numerous areas of deficient workmanship on this project. 12. The Registrar’s assigned inspector performed a jobsite inspection. That inspection resulted in the issuance of a Corrective Work Order from the Registrar directing Respondent to timely undertake remedial repairs to the following areas of deficient workmanship: properly repair water stain at tape joint in the living room ceiling; complete the back wall of the garage; reconnect the electricity in the garage; repair the garage door so that it properly operates; complete the kitchen cabinets; complete closet trim; and properly repair all closet doors. The inspector did not make a finding as to the condition of the new roof because he did not have the ability to view the roof. 13. Respondent is found to have failed to comply with the Registrar’s Corrective Work Order. 14. Respondent removed baseboards and used replacements with different dimensions. Respondent is found to be responsible for the removal and replacement of all baseboards installed by it which are not the dimensions of the original baseboards. Respondent is further determined to be responsible for repairing any damage cause by the improper baseboard installation. 15. Respondent if found to have improperly performed remedial repairs to Complainant’s bathroom tiles. Respondent is found to be responsible for performing all repairs to the bathroom tiles to minimum workmanship standards. 16. Respondent is deemed to have improperly installed linoleum in Complainant’s kitchen. Respondent is deemed responsible for removing the existing linoleum and underlying linoleum and reinstalling linoleum (with new product if necessary) to minimum workmanship standards. 17. During the performance of its work, Respondent caused window blinds in Complainant’s kitchen and grandson’s bedroom to be removed. It is determined that Respondent is responsible for the return of those window blinds. If the window blinds have been lost, destroyed or damaged by Respondent, then it is responsible for the replacement of those window blinds with a similar product. 18. Complainant’s entertainment center has been damaged due to Respondent’s deficient roof installation and its failure to properly perform repairs to the roof. Respondent is responsible for repairing the damage caused by its deficient workmanship. 19. Complainant has a 50 year old sewing machine desk which has sustained water damage as the result of Respondent’s deficient workmanship. Respondent is deemed responsible for causing the damage to be repaired. 20. The Registrar’s inspector has had an opportunity to view the photographic evidence depicting the existing condition of Complainant’s roof since his previous jobsite inspection. The inspector opined that Respondent neither install a modified bitumen roof nor installed the existing roof to minimum workmanship standards. He further concluded that Complainant did not get the roof that she paid a significant amount of money to receive. Respondent is deemed responsible, at its sole cost and expense, for removing the roof it installed on Complainant’s house and installing a modified bitumen roof to minimum workmanship standards. 21. Respondent’s deficient installation of the roof has resulted in water infiltration disrupting electrical power. That condition is deemed a serious safety issue. Respondent is found to be responsible, at its sole cost and expense, for causing a properly licensed electrical contractor to inspect and repair the disrupted electrical power. 22. Complainant has repeatedly attempted to contact Respondent to schedule necessary repairs. Her last unsuccessful attempt to contact Respondent was last week. 23. Respondent’s above described deficient workmanship and failure to accomplish proper repairs to its substandard work are deemed to be acts which pose serious threats to the public safety and health of Complainant and her family residing with her. 24. Respondent’s failure to perform the above described work to minimum workmanship standards and to comply with the Registrar’s written directive are deemed wrongful acts which have substantially injured Complainant. 25. The overwhelming evidence in this case demonstrates that Respondent has a callous disregard for this State’s contracting laws and regulations and for his responsibilities as a licensed contractor. Respondent has been given ample opportunities to correct its deficient work, which has created danger to the health and welfare of Complainant and her family. Such conduct should not be tolerated by the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The evidence of record is adequate to establish that Respondent has violated the provisions of A.R.S. ( 32-1154 (A) (7) (23) and (3); namely Rule R4-9-108. 2. The Registrar of Contractors may impose a civil penalty in an amount not to exceed $500.00 on a licensed contractor for each violation of A.R.S. ( 32-1154 (A). A.R.S. ( 32-1154 (D).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class B license be revoked on the effective date of the Order entered in this matter.

It is further recommended that if Respondent performs the corrective work described in Findings No. 12, 14, 15, 16, 17, 18, 19, 20 and 21 above 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 that Respondent’s Class B license shall be placed on suspension for a period of 7 days followed immediately by a period of disciplinary probation for 120 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 disciplinary penalties, if any, that Respondent pay the sum of $500.00 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 that 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 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.

It is further recommended, if the alternative penalty is applicable and in addition to the above-provided penalties, if any, that any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of months, including future renewal periods, in the amount of $2,000.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S.( 32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional 2 year period following the above- provided 24 month period and only if no claims are then pending.

Done this day, April 6, 1998.

______________________________________ BRIAN BRENDAN TULLY 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