ALJDEC

98F-2153-ROC · Registrar of Contractors · 1998-10-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 2, 1998 APPEARANCES: Complainant appeared on her own behalf and Respondent failed to appear. 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. Uncontroverted evidence of record established that Complainant contracted with Respondent for the purpose of replacing a flat roof on her residential structure. Complainant alleges certain deficiencies in the work performed and materials provided by Respondent and same are discussed in the findings below.

2. The instant record established that the following constitute substandard and unacceptable workmanship attributable to Respondent’s installation of the new roof system:

a. During the course of the roof replacement, Respondent removed the swamp cooler but neglected to shut off the water line for said cooler, thereby allowing water to run into the interior of the home and cause specified interior water damage to walls, carpet, pictures and furniture.

b. The roofing system installed by Respondent fails to prevent water from leaking into the interior of the home, as evidenced by water damage in the master bathroom, master bedroom, a specified hallway, and an area adjacent to the living room fireplace. It is important to note that not only is water staining present in the interior of the home but also excessive nail pops in the drywall due to exposure to water from the roof.

c. There is excessive ponding of water present in a specified area of the roof.

d. The roof deck under the area wherein water tends to pond is very spongy.

e. Flashing installed at the chimney has deteriorated and needs to be replaced.

f. Bubbles are present in certain areas of the roof.

All of the foregoing support not only a finding of violations of the statute and rule regarding good and proper workmanship but also a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws.

3. Notwithstanding the fact that Respondent’s license is limited to installation of shingle and shake roof systems, it installed a liquid applied roof system on Complainant’s flat roof. Thus, Respondent performed roofing work beyond the scope of its license.

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. Notwithstanding the terms of said Agency directive Respondent failed to comply with same.

5. By its failure to appear for the scheduled hearing, Respondent failed to present any matters in defense or mitigation.

6. A homeowner should not have to suffer through a seemingly endless period of time with water entering her home subsequent to paying a contractor to install a new roof system. Respondent’s continuing failure to correct the deficiencies in Complainant’s roof is viewed as a matter in serious aggravation for any disciplinary penalties to be imposed as a direct result of the instant case.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (23), (17), (7), and (3); namely Rule R 4-9-108.

2. Evidence of record failed to set forth specific facts necessary to support a violation of A.R.S. §32-1154A (10).

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 caused properly licensed contractors to repair and correct all deficiencies in the roof system and all areas of the interior which sustained water damage, as described in the foregoing findings of fact. 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 Complainant-42 license be placed on active suspension for a period of seven (7) days, followed immediately by a period of disciplinary probation for one year. 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. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $425.00 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, October 13, 1998

_________________________________ Mark A. Silver Administrative Law Judge

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

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

ATTN: Valerie Hicks

By _______________________________

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