ALJDEC

99F-3258-ROC · Registrar of Contractors · 1999-12-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 9, 1999 APPEARANCES: Complainant : Ardeshir Vakilzadeh appeared at the hearing pro se. Respondent : Saba Khouzam, President, S. A. K. Construction, represented the company’s interests at the hearing. Registrar of Contractors : Inspector Bob Mechsner. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________

Evidence and testimony having been received at the hearing and based upon the entire record, the undersigned Administrative Law Judge issues the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT 1. Respondent is in the business of rehabilitating and repairing existing structures, doing business in the state of Arizona as S A K Construction, Inc., holding a Class C-61 license (Limited Remodeling and Repair Contractor) issued by the Registrar of Contractors.

2. Complainant and Respondent entered into a written contract on December 2, 1997 whereby the Respondent contractor agreed to furnish material and perform services necessary to rehabilitate a structure situated at 3525 E. Via Estrella, Phoenix, Arizona, purchased by Complainant through the Department of Housing and Urban Development (“HUD”), with a Federal Housing Authority (“FHA”) loan. In consideration for the work performed and materials provided, Complainant paid $14,385.00. The contract was HUD approved.

3. Complainant filed a complaint with the Registrar of Contractors concerning workmanship issues which resulted in the Registrar’s issuance of a Corrective Order on June 23, 1999. An assigned Inspector for the Registrar of Contractors had conducted an on-site inspection on June 21, 1999. The Inspector directed the contractor 1) to determine the cause of cracking and delamination in the roof coating and to correct by appropriate means; and 2) to determine the cause of air conditioner fan blades striking the housing and to make necessary correction(s) thereto.

4. The Inspector noted significant elastomaric alligatoring, cracking and peeling, upon his June 21, 1999 inspection of the home. The Inspector conducted a second inspection on December 8, 1999, just prior to the hearing, whereat he noted that Respondent had instigated a recoating of the roof surface resulting in some improvement. While there had been progress made in the condition of the roof, the Inspector testified, the only method by which the condition may be improved is to remove the excess asphalt on the roof prior to the application of the proper coating. Respondent’s roofer confirms the Inspector’s conclusion. (See Hearing Exhibit A). 5. Respondent has arranged for a replacement of the subject fan blades, with proper calibration, to ensure that the problem of which Complainant seeks redress is corrected. The problem, in fact, was caused by Complainant’s having placed materials upon the housing, some of which fell into the blades causing disruption and damage, and resulting in the offensive noise to which Complainant objected.

6. Respondent’s President, Mr. Saba Khouzam, testified that the company is willing to make any repairs within the scope of the parties’ contract and change order.

7. The HUD contract identified $1,670.00 as that portion of the agreement authorized for expenditure to repair the roof. The 203 (K) report stipulated that the funds were to be used to “clean [the] tar roof and prepare to reseal [the roof] edges and apply elastomeric roof coating.”

8. The weight and sufficiency of the evidence establishes that the roof of this structure, as repaired, is deficient in workmanship. The roof needs to be redone to correct the apparent cracking and alligatoring. The weight and sufficiency of the evidence has demonstrated that the roof needs to be stripped of excess asphalt prior to the application of the proper number of coats of elastomeric. All other enumerated items of the complaint were found either to have been corrected, not found to constitute a prejudicial deviation from the terms of the contract, not adequately shown to be workmanship deficiencies, or matters upon which Complainant failed to sustain the requisite burden of proof.

CONCLUSIONS OF LAW 1. The evidence of record has sufficiently established that Respondent has violated that which is set forth at A.R.S ( 32-1154 (A) (3), (7) and (23); specifically, Rule R4-9-108 (Workmanship Standards).

2. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985).

3. By a preponderance of all of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (3) and (23) as charged in the Citation and Complaint. Respondent failed to repair Complainant’s roof in a workmanlike manner pursuant to its contract with Complainant. Although Respondent contractor has made an attempt to correct the deficiency, it does not appear that Respondent is capable of making the repair in a satisfactory and workmanlike manner.

4. Therefore, by a preponderance of the evidence, Complainant has established that Respondent contractor violated A.R.S ( 32-1154 (A) (7) as charged in the Citation and Complaint. It has been shown that Respondent has committed a wrongful act resulting in injury to another person.

5. Respondent’s failure to effect a repair of the deficiency of which he had been given notice, in a workmanlike manner, timely performed, constitutes a statutory violation for which a fair and just disciplinary penalty ought to be imposed.

RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class C-61 license be suspended on the effective date of the Order entered in this matter. IT IS FURTHER RECOMMENDED that Respondent be ordered to reimburse Complainant $1,670.00 as restitution on the contract for that which has been expended by Complainant for repairs to Complainant’s roof. Respondent should be afforded 30 days from the effective date of this order to make the necessary reimbursement. Should Respondent tender the appropriate restitution within 30 days of the Registrar’s order and provide credible written proof thereof, the suspension should not be put into effect and the file closed.

Set forth this 28th day of December 1999.

______________________________________ Gary B. Strickland Administrative Law Judge

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

Registrar of Contractors Mr. 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