ALJDEC

98F-2148-ROC · Registrar of Contractors · 1999-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 5, 1998 APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through its president, Dan DiMickele. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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. Pursuant to contract, Complainants retained Respondent for the purpose of installing a new roof on their home. Apparently the original roof system was old and moreover, there was an existing leak in the ceiling area of the master bedroom. Complainants allege certain deficiencies in the work performed and materials provided by Respondent and same are discussed in the findings below. 2. The following facts were adduced at the hearing and are important to note: a. On or about March 1997, the parties entered into a contract to have Respondent install a new shingle roof system on Complainants’ home. Respondent was advised and observed that there had been a leak in the area of the master bedroom ceiling, causing specified water damage to the ceiling and wood beams installed in said area. b. Approximately one year after Respondent completed the roofing project, Complainants reported roof water leakage in the master bedroom ceiling, generally in the same area that had experienced roof water leakage prior to Respondent completing the new roof installation. c. Respondent has returned to Complainants’ home on several occasions in order to investigate and accomplish remedial work for the purpose of attempting to stop the roof water leaks. Notwithstanding Respondent’s repeated efforts to terminate the roof water leakage, Complainants testified that the roof continues to leak on an intermittent basis, mainly after heavy driving rains. 3. The weight of the evidence of record was sufficient to support a finding that the following constitute construction deficiencies attributable to Respondent: a. Instead of removing the existing roof drip edge moldings, Respondent installed the new drip edge over the existing drip edge materials. There are now three (3) drip edge moldings installed on top of one another and this was shown to be aesthetically unacceptable. b. There are shingles on a specified area of the home that are lifted and thus, not properly sealed down. Respondent contends that this condition is not its problem but a problem in the manufacturing of the shingle materials. Respondent further indicates that the burden is on Complainants to contact the manufacturer of the shingle materials since they carry a twenty (20) year manufacturer’s warranty. On the contrary, Respondent selected, purchased, supplied, and installed the shingles, not Complainants. Respondent is responsible for any deficiencies in the materials selected and it is therefore, incumbent upon Respondent to contact the manufacturer to replace any defective materials supplied and/or to perform necessary and appropriate corrective work to seal the tabs of the shingles to the roof. c. The ceiling in the master bedroom has sustained water damage from the roof leaks that occurred subsequent to the installation of Respondent’s roofing system. Moreover, Respondent attempted to paint over the stained areas of the ceiling and the paint applied for the repair was shown to be a semi-gloss material while the rest of the ceiling was painted with a flat paint. Thus, the paint repair of the ceiling is unacceptable. d. The roof still leaks. The last leak observed by Complainants was on September 11, 1998. Although Respondent flood tested the roof on December 31, 1998, it did not find any leaks at that time and thus, no repair work was performed subsequent to the last roof leak. While it is true that flood testing is the normal industry method for investigating reported roof leaks, the instant record was inadequate to support any finding that the flood test performed on New Years Eve day by Respondent was extensive enough to check all possible areas of the roof that may be involved in the intermittent roof leak problem. Complainants entered into the contract with Respondent in order to terminate their problems with a leaky old roof and Complainants have not been shown to have received the benefit of the bargain. Respondent is responsible to insure that Complainants have a watertight roof system. 4. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work within a stated period of time. The provisions of this Agency directive required Respondent to insure that the roof was in a water tight condition, repair the drywall in the master bedroom, replace a water damaged bedspread, and to seal and paint all roof penetrations as required by the applicable contract. 5. Evidence of record demonstrated that Respondent attempted to comply with the above-described Agency Corrective Work Order. Respondent flood tested the roof after the issuance of the Corrective Work Order and testified, at the hearing, that no leaks were determined during said water test. Respondent paid Complainants for the cost of a new bedspread, sealed and painted the roof penetrations, and made an attempt, albeit unsuccessfully, to repair the water damage in the ceiling of the master bedroom. 6. It is important to note that the assigned Agency inspector appeared at the instant hearing and testified that he performed a pre- hearing jobsite inspection of Complainants’ home. Notwithstanding Respondent’s claims that he had previously flood tested the roof subsequent to issuance of the Corrective Work Order and was unable to verify the existence of any roof deficiencies that would cause the roof leaks, the inspector observed that there were new areas of water damage to the master bedroom ceiling at the time of said pre-hearing jobsite inspection. 7. Although total compliance with the spirit and intent of the Corrective Work Order was not accomplished, Respondent was shown to have responded, in an apparent good faith manner, to the directives contained within said Corrective Work Order. Therefore, notwithstanding a finding that total compliance with the Corrective Work Order was not achieved, the facts and circumstances presented herein militate against the imposition of any civil penalty. 8. Respondent believes that there is a possibility that the leak problem experienced by Complainants may be due to some deficiency in the air-conditioning unit itself. In this regard, Respondent attempted to have its own air-conditioner contractor appear at Complainants’ home and investigate the air-conditioner. Although Complainants contend that they did not refuse to have Respondent’s air-conditioner subcontractor examine their air-conditioner unit, Respondent believed that they denied him access for this purpose. The parties are on notice that if Respondent continues to believe that it is necessary, in terms of completing a thorough investigation of why roof water is getting into the home, to have his own air-conditioner contractor examine the air-conditioning unit, then Complainants must provide access for said purpose. In the event that any repairs to the unit itself are required, unrelated to Respondent’s roof work, Complainants shall bear the responsibility for the reasonable cost to accomplish the necessary remedial work. 9. Regarding the water damage present on the wood beams located in the master bedroom ceiling, the evidence of record supports a finding that said water damage was present before Respondent installed its roof system. The record was inadequate to establish that any water leaks that occurred subsequent to installation of Respondent’s roof system caused any further damage to the beams. Therefore, Respondent has no responsibility for repairing the water-damaged areas of the wood beams. 10. 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 although said notice revealed a recent Order of the Registrar imposing serious penalties against Respondent’s commercial roofing license, there were none imposed against the residential license involved in the instant matter.

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 C-42 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work to completely and thoroughly test the roof for areas of possible water penetration, accomplish any and all needed roof repairs, properly repair the water damage sustained by the master bedroom ceiling, properly install the drip edge molding, and correct the problem of the lifted shingles. In order to avoid any possible future compliance issues regarding this Order, it is further recommended that Respondent notify the Registrar of Contractors’ assigned inspector, well in advance of the date and time of any future water testing of Complainants’ roof and, if possible, that the Registrar’s inspector appear for said water test to insure that same is done in an appropriate and thorough manner. 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 C-42 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, January 11, 1999.

_________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of January, 1999, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

-----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826