ALJDEC

99F-0214-ROC - audit · Registrar of Contractors · 1999-04-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 8, 1999 APPEARANCES: Priscilla Carns, Complainant, in her own behalf Brian Rimmer, Respondent in his own behalf ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact In April, 1998, the Respondent performed a roof inspection for a residence in Phoenix being sold by Howard Kelly (Kelly). The inspection was necessary to qualify for FHA financing. The Respondent inspected the exterior of the roof and asserted in writing: “This roof meets and exceeds FHA standards of 2 yr. watertight condition.” The Respondent was paid $75.00 for the inspection. The roof consists of wood shingles, coated wood shingles, asphalt shingles and flat deck roofing over various portions of the home. At the time of the Respondent’s inspection, the ridge of the wood shingle (juncture of the coated and uncoated) portions of the roof, had 10 feet of ridge vent missing. The ridge vent which had been installed, was of poor quality. There was no ridge cap installed for this ridge. Kelly assured the Respondent he would install the unfinished ridge vent. This was not done. Kelly sold the home to the Complainant who relied on the Respondent’s representation regarding the roof in obtaining her financing. Prior to moving out but after the inspection, Kelly removed an antenna from the roof which left four bolt size holes in the roof. Kelly did not plug or fix these holes. The origin of two similar holes is unknown. The Complainant moved into the home in approximately June, 1998, and shortly thereafter it rained. The Complainant noted leaks at an east bathroom wall and a westerly hall ceiling. Attempts to have the Respondent attend to the matter were unsuccessful. The Complainant filed her complaint with the Registrar of Contractors (Registrar) on July 20, 1998. On August 28, 1998, Inspector Phil Coscia (Coscia) of the Registrar’s Office inspected the roof and noted missing ridge cap, open voids from missing wood shingles and areas on the flat roof which needed sealing at the plumbing vents. Coscia also noted the area in the east bathroom which had leaked. Coscia’s notes indicate a Corrective Work Order (CWO) was prepared for mailing too the Respondent. However, no CWO was located in the Registrar’s file, the file sent to Office of Administrative Hearings, or the Complainant’s records. The Respondent testified he did not recall receiving a CWO. According to Coscia, the Respondent should have recommended replacing the roof. The Respondent made four trips to the Complainant’s and replaced ten feet of ridge vent, put up an asphalt shingle ridge cap, replaced the missing wood shingles, plugged the holes left from the removal of the antenna, and put a paint like coating on the flat roof as well as a portion of the wood shingle roof. Work on interior damage was not done and the spotting of the west hallway ceiling and the staining on the east bathroom wall remains. Coscia performed a pre-hearing inspection on April 8, 1999, and could not determine if the roof was still leaking. It appears the leaks have stopped or significantly diminished although the roof has not been seriously tested by heavy or extended rain. Conclusions of Law The allegations of this Citation and Complaint concern A.R.S. §32- 1154(A)(3), violation of any rule, specifically A.A.C. R4-9-108, workmanship standards, (A)(7) wrongful or fraudulent acts resulting in substantial injury, and (A)(23) failure to take appropriate remedial action. The allegation regarding failure to do corrective work is not sustained because the evidence is insufficient to show that a CWO was sent to the Respondent. Furthermore, the Respondent has done some corrective work although the interior remains to be done. The violation of (A)(3)/A.A.C. R4-9-108 is sustained. It is apparent that he evaluation of the roof which was performed by the Respondent was cursory and inadequate. The corrective work as done by the Respondent is somewhat unusual according to Coscia (the asphalt shingle ridge cap on the wood shingle portion of the roof), but Coscia did not find it unacceptable. The fact that the Respondent did an inadequate inspection in conjunction with the sale of the house makes the issue even more serious in light of the increase in the number of persons affected (buyer, seller and lender) and the consequences. It is concluded that the evidence did not prove that Respondent was willfully deceptive in his evaluation so as to constitute fraud. However, the failure to properly assess the roof was negligence at best and constitutes a wrongful act with substantial injury to the Complainant and is a violation of A.R.S. §32-1154(A)(7). 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 the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished appropriate and effective remedial work on the west hallway ceiling and the east bathroom wall; It is further recommended that if the Respondent accomplishes the above described corrective work as required by 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 the Respondent’s Class C-42-R license be placed on probation for a period of sixty (60) days. This additional disciplinary penalty shall commence on the effective date of the Registrar’s Order or the date on which notice of the Respondent’s compliance with he terms of the Order is filed with the Registrar, whichever is last. Done this day, April 13, 1999

______________________________________ ALLEN REED Administrative Law Judge

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

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

By _______________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826