ALJDEC

98F-2247-ROC · Registrar of Contractors · 1998-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 14, 1998 APPEARANCES: Complainant appeared on her own behalf and Respondent was represented by its attorney, Joe Huey. 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. At the outset of the scheduled hearing, Respondent made a motion to continue, based on information Respondent’s attorney had received, from his secretary on the day before the hearing, indicating that one of the individuals in the Respondent corporation had to be rushed to the hospital for emergency surgery. Respondent’s attorney did not have any specifics regarding when the surgery was taking place or why another member of Respondent corporation could not appear at the hearing. Complainant voiced opposition to the requested continuance. This Tribunal also was aware that on another unrelated matter, a mere 1 and 1/2 weeks prior to the instant hearing, Respondent had also made a belated request for continuance due to the fact that a person listed on Respondent’s license was about to deliver a baby. Under all of the circumstances, this Tribunal determined that it did not have enough information upon which to make a finding of good cause for this continuance request and therefore, same was denied. 2. Complainant entered into a contract with Respondent for the purpose of installing a roof system on a new home wherein Complainant was acting in the capacity of owner/builder. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below. 3. Evidence of record was sufficient to support a finding that the roof system installed by Respondent was indicative of substandard and unacceptable workmanship as manifested by the following: a. The roof allows water to leak into the interior of the home, thereby causing interior water damage in specified areas of the home. b. The coating applied to the walking deck is flaking and peeling off. c. Although the applicable contract required installation of a walking deck, the material installed by Respondent in said area is not indicative of a standard walking deck with a non-slip surface. 4. Although Respondent’s license is restricted to installation of shingles and shakes only, it installed a “torch-down” roofing system on Complainant’s residence. Thus, Respondent performed work beyond the scope of its license. 5. 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. Respondent failed to appear for said jobsite inspection. Moreover, notwithstanding the terms of said Agency directive, Respondent failed to comply with same. 6. A homeowner should not have to suffer through a seemingly endless period of time with water entering her home. 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. 7. Complainant apparently would rather have a foam roof as opposed to the roof system installed by Respondent. Nevertheless, the applicable contract between the parties does not call for a foam roof. If Complainant wanted a foam roof she should not have signed the contract with Respondent. Respondent is not under any obligation to remove the existing roof and replace same with a foam roof. . . . . . . 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-42R 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, walking deck system, and all areas of the interior which sustained water damage from roof leaks. Any unreasonable denial of access by Complainant to allow this remedial work shall be deemed to be tantamount to Respondent’s compliance with this Order. It is further recommended that if Respondent accomplishes the above- described corrective work or is denied reasonable access to perform the required remedial 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-42R license be placed on active suspension for a period of five (5) 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 20, 1998.

_________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of October, 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