ALJDEC

98F-1191-ROC · Registrar of Contractors · 1998-05-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 21, 1998 APPEARANCES: Complainants appeared through Co-Complainant, Ioana Oancea, and Respondent appeared through its construction manager, Don Daye. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. At the outset of the scheduled hearing, Respondent made a motion objecting to this proceeding moving forward due to the fact that it served a subpoena duces tecum on Complainants requiring Complainants to turn over to Respondent, prior to the date of hearing, “all documents, pictures, tapes to be used as evidence.” Complainants failed to comply with the subpoena. In response to Respondent’s motion, Complainants averred that they only intended to present a few photographs in support of their claim. Respondent was advised that the hearing would go forward, notwithstanding Complainants’ failure to comply with the subpoena issued by this tribunal.

2. Pursuant to written proposal, Respondent agreed to perform a new roofing procedure on a portion of Complainants’ roof. Complainants allege certain deficiencies in the work performed and materials provided by Respondent and same are discussed in the findings below. 3. The roof area in question was originally built as a patio roof cover but at the time of the applicable contract said roof section was over an enclosed area of the home. The major portion of the roof for Complainants’ home is a pitched roof and the area wherein Respondent was to install its new roof system was a flat roof area. 4. Undisputed evidence of record demonstrated that Complainants retained Respondent to place a new roof on the former patio cover due to the fact that they had experienced a minor degree of water leakage in the interior of the home on the ceiling under said area of the roof. 5. The applicable contract between the parties did not require Respondent to re-frame the former patio roof cover area in order to provide a pitch to the flat roof. Respondent merely agreed to tear off the existing modified bitumen roofing system and install a two-ply cold application built-up roof system, utilizing a 25lb base felt and a 72lb cap sheet. 6. The initial proposal was for a cost of $760.00. However, evidence of record established that upon preparing to install the roof Respondent determined that the original roof did not need to be torn off and thus, installed the new roof system over the existing roof and credited Complainants with the cost for the roof tear off. Complainants paid Respondent in full for the work performed and that sum was shown to be $575.00. 7. Evidence of record supports a finding that the following salient events occurred after Respondent completed the above-described construction work: a. Shortly after Respondent completed the new roof installation, Complainants experienced minor roof water leakage in the room underneath the new roof system. b. Respondent was called back to Complainants’ home and determined, for the first time, that due to a major depression in the framing for said roof area that the roof system it provided should not have been installed. Respondent advised Complainants that repairs would be made in order to attempt to stop the roof water leakage and repair the interior water damage but that Complainants needed to have a total re-framing of the roof in question, in order to provide an adequate pitch to the roof and terminate the problem of ponding water on the roof. In this regard, Respondent offered to refund the total price that Complainants paid for the new roofing system. Complainants did not accept this offer of a contract rescission. c. The roof leaked again after the aforementioned repairs were made and Respondent again returned to Complainants’ home, made repairs, advised Complainants that they needed to re-frame and reinstall a new roof system, and that Respondent would refund the $575.00 previously paid by Complainants. Complainants again refused the rescission offer and Respondent made further repairs to the roof. d. The roof leaked again after the aforementioned second series of repairs. When Respondent came out after receiving a call referable to this third series of water leaks, Complainants were understandably angry and basically told Respondent that they would not allow any further remedial work by Respondent and demanded that Respondent leave their property. e. Complainants ultimately hired another contractor to re-frame the roof structure and install a new roof in the area previously worked on by Respondent. Complainants claim specified monetary damages for not only the cost of this new roof system installed by the subsequent contractor but also for monies spent to repair the interior ceiling and water damage sustained by a table and a couple of chairs. f. Ultimately, Complainants filed the instant complaint with the Registrar of Contractors. 8. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held. At the time of said inspection, all of the above- described repairs had already been accomplished and paid for by Complainants. Under the circumstances presented to the Registrar’s inspector, he issued a directive to Respondent to “...take any action necessary to resolve the issues of improper roofing installation and...interior damage.” 9. Under all of the salient facts and circumstances of the instant case, it is determined and held that Respondent’s on-going offer to refund the contract cost to Complainants was a reasonable effort by Respondent to “resolve” the instant complaint and thus, no violation of the inspector’s corrective work order is determined. 10. A contractor should not undertake to perform construction work which it either knows or should know is unlikely to create a workmanlike result and/or be fit for its intended purpose. Thus, the failure of Respondent’s roof system to prevent water from entering Complainants’ home is determined to constitute poor and unacceptable workmanship. Respondent’s actions in this regard are also found to constitute a wrongful act within the meaning of the applicable charged section of the State’s Contracting Laws. 11. Complainants’ over-all claim for monetary damages is not found to be the type of claim that should be adjudicated and liquidated at an administrative license disciplinary hearing, particularly in light of Complainants’ failure to comply with the aforementioned subpoena duces tecum which required, among other items, that Complainants should have provided Respondent with all documents supporting any claim for monetary damages. Nevertheless, it is determined that Complainants did not receive the benefit of the bargain for the $575.00 they paid for the roof system installed by Respondent and therefore, Respondent should be required to pay Complainants’ that sum of money as a condition in the instant order which would allow Respondent to avoid the imposition of otherwise appropriate disciplinary penalties. Nothing in this Order should serve to prevent Complainants from seeking further restitution for their claim of monetary damages by bringing an appropriate action against Respondent in a civil court of competent jurisdiction.

CONCLUSIONS OF LAW

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

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has paid or tendered the sum of $575.00 to Complainants. 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 aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class B license be placed on a period of 60 days’ disciplinary probation. This additional disciplinary penalty shall commence on the effective date of . . . . . . . . . the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later.

Done this day, May 28, 1998.

_______________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of May, 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