ALJDEC

98F-1920-ROC · Registrar of Contractors · 1998-11-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 12, 1998 APPEARANCES: Complainants appeared through Co-Complainant, Cynthia Griffith and Respondent appeared through its owner, Douglas Barr. 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. Pursuant to contract with the prior owners of the home, Respondent agreed to install a new shingle roof system on a portion of the roof. The roofing contract in question was executed on or about the time that Complainants agreed to purchase the home. Complainants are hereby determined to be third party beneficiaries to the re-roofing contract and, as such, have standing to bring the instant complaint before the Registrar of Contractors. 2. Complainants allege certain deficiencies in the roofing work performed by Respondent and same are discussed in the findings below. 3. The weight of the evidence of record was sufficient to support a finding that the following constitute substandard and unacceptable workmanship and or materials attributable to Respondent:

a. There are several areas of the roof that are bubbled (puckered). b. A number of the self-sealing shingles are not properly sealed- down.

4. Respondent testified that the above-described bubbles in the roof may possibly be due to dips or sags in the existing plywood roof deck and that the contract between Respondent and the prior owner of the home did not provide for replacing any bad plywood. Regardless of whether any deficiencies in the plywood deck may have contributed to the unacceptable bubbling in the roof, it is clear that upon contracting to perform the re- roof project, Respondent accepted the surface and conditions as being adequate to support a workmanlike result. Thus, Respondent is properly estopped to disclaim any responsibility for the bubbles based on a claim that areas of the roof deck were inadequate to support a workmanlike result. 5. Notwithstanding the foregoing finding of an estoppel against Respondent disclaiming liability for the bubbles in the roof due to deteriorated existing plywood, it is clear that the rights of Complainants cannot raise to a higher level than those of the prior owners regarding the work that Respondent must perform under the terms of the contract. Although Complainants are entitled to have the bubbles in the roof system corrected they are not entitled to have sections of the plywood deck replaced free of any charge (since the original contract did not include the cost to replace bad plywood). 6. In the event that during the course of performing required remedial work on the roof bubbles, Respondent determines conclusively that replacement of the plywood is the only viable method to correct the deficiency then, and in that event, it is equitable that Complainants should be obligated to pay the reasonable cost for the plywood replacement aspect of the remedial work, as a condition precedent to Respondent completing the correction of the roof bubbles. Respondent testified at the hearing that his normal charge for plywood replacement is $40.00 per sheet and said cost was not shown to be unreasonable. 7. Any claimed deficiencies in the roofing system that were attributable to high trusses are not found to constitute any deviation from acceptable minimum roofing industry standards. 8. Two jobsite inspections by the appointed inspector for the Registrar of Contractors were held, pursuant to which that Agency sent Respondent letters directing it to accomplish specified remedial work within stated periods of time. Notwithstanding the terms of said Agency directives and Respondent’s efforts to work on some of the items, total compliance was not accomplished in that the roof bubbles remain on the roof and, apparently in the course of removing roofing nails from the sealed ends of the shingles, Respondent loosened the seal on said shingles, thereby leaving the shingles in an unsealed condition. 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 the absence of any such prior disciplinary orders. Respondent has been licensed since 1980 and 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), 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-03 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the unsealed shingles and the bubbles in the roof system. Regarding the corrective work on the roof system bubbles, the parties are on notice that if after removing the shingles in the affected areas, it is determined that the cause is deteriorated plywood which requires replacement, Complainants will have to pay the reasonable cost for the installation of replacement plywood as a condition precedent to Respondent completing the remedial work in said areas of the roof. 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 above-provided penalties, if any, that Respondent pay the sum of $100.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent to pay the entire amount of the aforesaid 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. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered. Done this day, November 19, 1998.

_________________________________ MARK A. SILVER Administrative Law Judge

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

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