ALJDEC

98F-0185-ROC - audit · Registrar of Contractors · 1998-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 22, 1998 APPEARANCES: Kathi Foster on her own behalf; Richard Cobb, Esq. on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT In November,1996, Kathi Foster (“Mrs. Foster”/“Complainant”) and her husband, David Foster (“Mr. Foster”), moved into their home located at 4036 North 62nd Street, Phoenix, Arizona 85033 (the “Home”). According to the terms of an agreement between Mr. and Mrs. Foster and the previous owners of the Home, the previous owners would pay for repairs that needed to be made to the roof of the Home. The previous owners recommended Scott Roofing Company (“Respondent”) to Mr. and Mrs. Foster because Respondent previously performed work on the roof of the Home. Complainant contacted Respondent by telephone and learned that Respondent would not be available to do any work at the Home until after January, 1997. Complainant contacted Respondent in the Spring of 1997 and as a result of that communication, Respondent dispatched Robert Benedict (“Mr. Benedict”) to assess the work that Complainant required. The bid submitted by Mr. Benedict and accepted by Complainant, as evidenced by her signature, originally did not have any information as to the number of tiles to be replaced. Further, the bid, which became the contract between Complainant and Respondent did not define the term “broken tiles”. The definition of that term is relevant in determining the scope of the work contracted for between the parties. The specified contract price was $280.00. There was sharply conflicting testimony presented as to what occurred at the Home during Mr. Benedict’s first visit. Mr. Benedict testified that he told Complainant that Respondent would replace about twenty-five (25) broken tiles and install four tiles that were missing on the roof. Mr. Benedict also testified that Complainant informed him that Complainant had a restricted budget of $300.00. Conversely, Complainant testified that there was no discussion about the number of tiles to be replaced and no mention was made as to a dollar limitation for the work to be performed. The evidence of record is such that the Administrative Law Judge has no reason to disbelieve the testimony of either the Complainant or Mr. Benedict as to the scope of the work to be performed. Therefore, the scope of Respondent’s work is determined from the written terms of the contract entered into by the parties. Mr. Benedict credibly testified that he mentioned to Complainant that the tile that was on the roof of the Home is no longer manufactured and that Respondent could obtain similar but not the identical tile. Although Complainant did not recall that conversation, Complainant failed to present any evidence to refute that testimony. Mr. Benedict testified that when he went to the Home for the first visit , he replaced about twenty to twenty-five (20-25) tiles on the roof and installed four tiles where there they were missing. Complainant testified that subsequent to the above-mentioned work performed by Mr. Benedict, Mr. Foster looked at the roof and informed Complainant that it did not look like any work had been performed by Respondent. Respondent received a telephone call from Mr. Foster regarding the work which resulted in Mr. Benedict making a second visit to the Home. Neither Complainant nor her husband were at the Home during that visit. However, Mr. Benedict met with Mr. Foster’s brother who informed him that Mr. Foster had marked the tiles which required replacement. During the second visit to the Home and prior to commencing additional work, Mr. Benedict observed that more tiles were broken. Mr. Benedict replaced approximately thirty (30) tiles during that visit. Mr. Benedict credibly testified that when he left the Home on the first and second visits to the Home, as set forth above, there were no broken tiles on the roof of the Home. Complainant credibly testified that she did not know what work Mr. Benedict performed on the roof of the Home during Mr. Benedict’s first and second visit to perform work . Due to further telephone calls from Complainant and her husband, Respondent sent Dennis Leddy (“Mr. Leddy”), a supervisor, to go out to the Home and replace more tile. Mr. Leddy went to the Home on a Saturday and went on the roof to determine the type and number of tiles needed to perform the required work. Mr. Leddy could not obtain the tile that day as the warehouse was closed. Mr. Leddy left a door hanger at the Home with a note that he would be back the following Monday with the tile. On the following Monday, Mr. Leddy went to the Home and replaced about twenty-five (25) tiles on the roof of the Home. Subsequently, Kevin Keith (“Mr. Keith”), Respondent’s production manager, instructed Mr. Leddy to go back out to Complainant’s Home another time to replace more tiles. Prior to that visit, Mr. Leddy spoke with Mr. Foster, who advised Mr. Leddy that approximately twenty-five (25) tiles required replacement and that he had marked the tiles to be replaced. Mr. Foster advised Mr. Leddy to bring thirty-five (35) tiles rather than the twenty-five(25) tiles so as to be sure Respondent had enough tiles to complete the job. Mr. Leddy complied with Mr. Foster’s request. Mr. Leddy made a third visit to the Home and replaced thirty-five (35) tiles. On the third visit to the Home, Mr. Leddy brought another worker with him whose name was Joe. Mr. Leddy credibly testified that when he left the Home on the second and third visits as set forth above, there were no broken tiles on the roof of the Home. Respondent presented credible evidence that in the construction industry, broken tiles means crushed tiles and not “dog-eared” tiles which are tiles that have their corners chipped. There is inconclusive evidence as to whether Respondent relayed that information to Complainant prior to Complainant’s acceptance of the Bid. Mr. Leddy instructed Joe to return to the Home to remove the construction debris resulting from the work Respondent performed. According to Mr. Leddy, Respondent was to remove all the debris from the roof, place it on the side of the Home in a trash bag and then remove the bag. Mr. Leddy never followed up to determine if the construction debris was ever removed by Respondent. Further Mr. Keith, subsequently spoke with Joe and directed him to go to the Home and remove the construction debris. Kevin later inquired as to whether that work was performed and received an affirmative response from Joe. The evidence presented established that to remove all of the broken and “dog-eared” tile from the roof of the Home would cost approximately $800.00. Although Respondent presented a bid that became the contract between the parties for replacement of broken tile and the contract does not specify the number of tiles to be replaced or how a determination is made as to what constitutes a broken tile, reasonable terms are to be implied. Under the facts and circumstances of this case, it is unreasonable to hold Respondent responsible for replacement of all broken and “dog-eared” tile. It is determined that Respondent has fully performed the terms of its contract with Complainant with respect to replacement of broken tile. For a contract price of $280.00, it would be unreasonable to require further replacement of tile on the Home when Respondent has already replaced approximately one hundred (100) tiles. On July 23, 1997, Complainant filed a complaint against the Respondent with the Registrar of Contractors. A jobsite inspection was scheduled to be held on August 14, 1997, by Registrar of Contractors’ Inspector Richard Stuart but was rescheduled to August 25, 1997 in the afternoon at the request of the Complainant. On August 25,1997, in the presence of Mr. Foster but without the presence of Complainant or Respondent, a jobsite inspection was performed at the Home by Inspector Stuart. During the hearing, Respondent raised the inference that Complainant had received preferential treatment from the Registrar of Contractors because she is a state legislator in that Complainant had successfully obtained a rescheduled jobsite inspection date while, despite a similar request, Respondent was not successful in obtaining a continuance of the jobsite inspection. The notice sent to the parties by the Inspector Stuart of the jobsite inspection provides that “if you are unable to attend, we require 36 hours advance notice of cancellation or continuance.” The records of the Registrar of Contractors reflects that on August 25, 1997, the date of the jobsite inspection, was when Respondent’s request to change the jobsite inspection date was received by the Registrar of Contractors. Therefore, Respondent’s continuance request was not filed with the Registrar of Contractors in a timely manner so as to have the jobsite inspection continued. Inspector Stuart did not appear at the hearing of this matter and he is no longer employed by the Registrar of Contractors. Additionally, Mr. Foster did not appear as a witness in this matter. No subpoena requests were received by the Office of Administrative Hearings to secure the appearance of witnesses at the hearing of this matter. Based on the evidence presented, which, among other things, includes correspondence sent by the Complainant to the Registrar of Contractors on House of Representatives’ letterhead, it is determined that there is no credible evidence that Complainant received preferential treatment by the Registrar of Contractors nor is there any evidence that Respondent was treated unfairly by the Registrar of Contractors. Both Mr. Benedict and Mr. Leddy, who combined, have at least 38 years of roofing experience, credibly testified that the condition of the tile at the Home is such that it is old, very brittle and difficult to work with. Complainant contended that each time Respondent performed work at the Home, Respondent left the roof with either no work performed or more tile broken than what was to be replaced. That contention is not supported by credible evidence. Although Complainant presented photographs of the roof taken after the work had been performed by Respondent which shows broken tiles on the roof, there was no credible evidence presented that established that the broken tiles were caused by Respondent. The evidence presented supports a reasonable inference that Mr. Foster had been on the roof at least once since the time Respondent commenced work at the Home. Although Complainant testified that Mr. Foster used an apparatus to mark the tiles which required replacement, Complainant did not see Mr. Foster perform such work nor did she know the nature of the apparatus. Absent credible evidence of the manner in which Mr. Foster marked the tiles, it is reasonable to assume that Mr. Foster went on the roof to view the condition of the tiles and mark the tiles to be replaced. Under the circumstances, when a person other than the Respondent, has been on the roof, which may have caused damage to the roof, Complainant bears the burden of proving that the damage to the tiles occurred directly as a result of Respondent’s acts. Complainant failed to meet her burden on this issue. The weight of the evidence shows that upon receiving the Corrective Work Order issued by Inspector Stuart as a result of the Jobsite inspection, Respondent waited until the fourteenth (14th) day to contact Complainant about completing the job. The Corrective Work Order required Respondent to take corrective work by the fifteenth (15th) day from when the Corrective Work Order was issued. Respondent offered to send Mr. Leddy back to the Home to perform the Corrective Work. Respondent claims that Complainant denied Respondent access which constitutes a complete defense to the failure of Respondent to comply with the Corrective Work Order. However, Respondent is mistaken in the application of denial of access in this case. It was reasonable for Complainant to request that Respondent send another employee to the Home to correct the work because Mr. Leddy had been to the Home three times and Complainant was not satisfied with the work done by Mr. Leddy. The reasonableness of Complainant’s request that Mr. Leddy not be sent does not in any way impact any determination made as to the quality of work performed by Mr. Leddy but only goes to the reasonableness of Complainant’s response to Respondent’s offer to correct deficiencies. It is determined that Complainant did not deny Respondent access to the Home for performance of remedial work but only justifiably denied access to Mr. Leddy. However, the evidence presented established that there was some miscommunication between the parties and that Respondent believed that Complainant was denying it access to perform remedial work. Under the facts and circumstances presented, Respondent’s failure to comply with the Corrective Work Order was predicated on its good faith belief that it was denied access. However, there is no justification presented by Respondent as to why the construction debris was not cleaned up prior to the issuance of the Corrective Work Order. Complainant represented that all of the tile work on the roof of the Home has now been accomplished by Mr. Foster and there is no further work to be done by Respondent. At the conclusion of the hearing, Complainant requested that disciplinary action be taken against the Respondent’s license and made no request for any work be performed by Respondent. The failure of Respondent to have removed construction debris was an express part of the contract and leaving the debris at the Home constitutes a wrongful act by the Respondent within the meaning of A.R.S. §32- 1154(A)(7). Other than as set forth above, all enumerated items of the Complaint were either shown to be no longer in issue, within acceptable industry standards or matters upon which Complainant failed to sustain the requisite burden of proof.

CONCLUSIONS OF LAW The evidence of record established that Respondent violated A.R.S. 32- 1154(A) (7) and(3), namely A.A.C. R4-9-108. The evidence of record does not establish that Respondent violated A.R.S. §32-1154(A)(23) RECOMMENDED ORDER Based on the above, the Administrative Law Judge recommends that Respondent’s Class C-42 license be placed on disciplinary probation for a period of thirty (30) days commencing on the effective date of the Order entered in this matter. Done this day, February 6, 1998.

______________________________________ LEWIS D. KOWAL Administrative Law Judge

Original transmitted by mail this ____ day of February, 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