ALJDEC

99F-3519-ROC · Registrar of Contractors · 1999-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 21, 1999; 9:15 A.M.; Phoenix, Arizona APPEARANCES: Complainant: Stefan M. Babirak Respondent: No Appearance ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr.

This is a disciplinary proceeding brought pursuant to Arizona Revised Statutes (A.R.S.) § 32-1154. Based upon the evidence presented at the hearing, Administrative Law Judge George A. Schade, Jr. submits this Recommended Decision and Order to the Arizona Registrar of Contractors (Registrar). FINDINGS OF FACT PROCEDURAL BACKGROUND 1. Respondent Dan Mar Roofing, Inc. (Dan Mar), a corporation, holds License No. 111653, Class C-42, issued by the Registrar on February 23, 1996. 2. Dan Mar’s License No. 111653, Class C-42, is currently suspended for lack of compliance with a decision and order of the Registrar. 3. On June 17, 1999, Mr. Stefan M. Babirak filed this complaint with the Registrar alleging that Dan Mar had failed to perform in a professional and workmanlike manner roofing work at Mr. Babirak’s house, and Dan Mar had failed to do the necessary warranty and corrective work. 4. On July 23, 1999, Mr. John Ratcliff, the Registrar’s inspector assigned to this case, made a jobsite inspection. Dan Mar did not attend the jobsite inspection. 5. On July 27, 1999, Mr. Ratcliffe issued a Corrective Work Order directing Dan Mar to complete corrective roofing work for a leak between the patio and the house, and secondly, stating that no further action was required for the leak in the Master Bedroom. 6. On August 16, 1999, Mr. Babirak requested an administrative hearing as Dan Mar had failed to complete any of the directed corrective work. 7. On September 22, 1999, the Registrar issued to Dan Mar Citation and Complaint No. 99-3519 alleging violations of A.R.S. §§ 32-1154(A)(3), namely, Rule R4-9-108, Ariz. Admin. Code; -(A)(7); and, -(A)(23). 8. On September 3, 1999, Dan Mar answered the citation and complaint. Dan Mar denied the allegations contained in the complaint. 9. On October 29, 1999, the Registrar issued a Notice of Hearing scheduling a hearing on December 21, 1999. The hearing was assigned to the Office of Administrative Hearings. 10. On December 14, 1999, Mr. Ratcliff made a prehearing inspection of Mr. Babirak’s roof. Dan Mar did not attend this inspection, although it was informed of it. 11. On December 21, 1999, a hearing was held. Mr. Babirak testified and presented the testimony of Mr. Ratcliff. Dan Mar did not appear at the hearing. The start of the hearing was delayed fifteen minutes to give Dan Mar additional time to travel, but Dan Mar did not appear prior to the conclusion of the hearing. The Administrative Law Judge took official notice of the entire contents of the file of the Office of Administrative Hearings and of Dan Mar’s prior two-year disciplinary record with the Registrar. THE ROOFING CONTRACT 12. On June 5, 1998, Mr. Babirak and Dan Mar entered into a written contract whereby Dan Mar would do roofing work at Mr. Babirak’s house. The contract amount was $1,735.00. 13. Dan Mar did the roofing work, and Mr. Babirak paid Dan Mar the full amount of the contract. THE COMPLAINT 14. Subsequently, when it rained leaks appeared in two places: a). In an area where the patio roof connects with the house’s roof. The water leaks in the patio area (in an area approximately two feet beyond the exterior wall) and not inside the house. b). In the Master Bedroom. The leak in the Master Bedroom is evident in a water stain on the ceiling which is approximately 1 foot by 2 inches in size. 15. On April 2, 1999, it rained, and Mr. Babirak’s roof leaked in the two areas noted. 16. Mr. Babirak called Dan Mar several times, but Dan Mar did not respond. On prior occasions, Dan Mar had attempted to repair these leaks, but this time, Dan Mar did not respond. Subsequently, Mr. Babirak filed this complaint. 17. Mr. Ratcliff testified that in his opinion the patio leak was the result of Dan Mar not having “done [the work] in proper manner.” The plywood from the patio roof was not completely or correctly connected to the house’s roof. There is a gap of approximately 1 1/2 inches between the plywood and the roof of the house. 18. In his Corrective Work Order, Mr. Ratcliff did not direct Dan Mar to repair the leak in the Master Bedroom because he believed the initial work had been done more than two years earlier. At the hearing, Mr. Ratcliff testified that subsequently he learned that although Dan Mar had installed the roof more than two years earlier, Dan Mar had repaired the leak in the Master Bedroom within the past two years. Mr. Ratcliff testified that had he known this fact when he issued the Corrective Work Order on July 27, 1999, he would have directed Dan Mar to repair and paint the leak in the Master Bedroom ceiling. The leak in the Master Bedroom would have been included in the Corrective Work Order. 19. Mr. Ratcliff found an area in the chimney’s flashing which needs to be repaired. This area may be contributing to the water leaks. 20. Mr. Ratcliff testified that Dan Mar operated beyond the scope of its residential contractor’s license when it performed the covering of the patio roof with plywood. 21. The roof remains unrepaired, and when it rains again, Mr. Babirak expects that these areas will leak rainwater. DAN MAR’S PRIOR DISCIPLINARY RECORD 22. The Registrar’s public records show that during the past two years five complaints (including this complaint) alleging poor workmanship have been filed against Dan Mar. 23. Mr. Ratcliff testified that to the best of his knowledge the principal and qualifying party of Dan Mar is currently working for another entity. In April, 1999, when Mr. Babirak telephoned Dan Mar’s office, he was informed that the telephone had been disconnected. CONCLUSIONS OF LAW APPLICABLE STATUTES AND RULES A.R.S. § 32-1154(A) provides in the pertinent subsections: “A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

*** 3. Violation of any rule adopted by the Registrar. *** 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. *** 23. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held pursuant to the provisions of this article.”

Rule R4-9-108(A), supra, states, “All work shall be performed in a professional and workmanlike manner.” CONCLUSIONS OF LAW 1. In these disciplinary cases, the complainant has the burden of proof, and the standard of proof on all issues is the preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996), review denied (1997); Troutman v. Valley Nat. Bank of Arizona, 170 Ariz. 513, 826 P.2d 810 (App. 1992); Rule R2-19-119, Ariz. Admin. Code. A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, § 5 (1960). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (6th ed. 1990). 2. Dan Mar violated A.R.S. § 32-1154(A)(3), namely, the Registrar’s Rule R4-9-108(A), supra. The Registrar of Contractors is charged with determining workmanship of construction, or whether a licensed contractor performed “in a good workmanlike manner and in a manner befitting a skilled contractor.” Reliable Electric Co. v. Clinton Campbell Contractor, Inc., 10 Ariz. App. 371, 374, 459 P.2d 98 (1969); see, J. W. Hancock Enterprises, Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (1980); A.R.S. § 32-1154(A)(3); Rule R4-9-108(A), supra. The patio leak and the leak in the Master Bedroom are due to lack of professional and good workmanship “in a manner befitting a skilled contractor.” 3. Dan Mar violated A.R.S. § 32-1154(A)(7). Its failure to perform in a professional and workmanlike manner are “wrongful” acts or omissions which have “substantially injured” Mr. Babirak. Black’s Law Dictionary defines “substantial” as meaning “of real worth and importance; of considerable value; valuable.” BLACK’S LAW DICTIONARY 1428 (6th ed. 1990). 4. Dan Mar violated A.R.S. § 32-1154(A)(23). Dan Mar failed to comply with the Corrective Work Order “without valid justification.” A.R.S. § 32- 1154(A)(23). 5. The suspension of a residential contractor’s license “by decision and order of the Registrar…shall not deprive the Registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such licensee, or to render a decision…revoking such a license.” A.R.S. § 32-1154(C). The fact Dan Mar’s license is currently suspended by a prior decision and order does not deprive the Registrar of jurisdiction to sanction Dan Mar’s license in this case. 6. The Registrar may “permanently revoke” a residential contractor’s license for violations of any of the provisions of A.R.S. § 32-1154(A). A.R.S. § 32-1154(B). Revocation of a contractor’s license must be a carefully considered sanction, not to be taken lightly, and the Administrative Law Judge has in such manner considered the entire evidentiary record. The preponderance of the evidence supports the revocation of Dan Mar’s License No. 111653, Class C-42, without imposition of any conditions. 7. Dan Mar’s prior disciplinary record may be considered “as a matter in mitigation or aggravation” when formulating an appropriate recommended disposition of this matter. Notice of Hearing; Rule R4-9-117, supra. Dan Mar’s disciplinary record does not mitigate the sanction of revocation. RECOMMENDED ORDER It is recommended that the Registrar revoke Dan Mar’s License No. 111653, Class C-42. SUBMITTED this 21st day of December, 1999.

George A. Schade, Jr. Administrative Law Judge

The original Recommended Decision and Order of the Administrative Law Judge was mailed on December 22, 1999, for distribution to the parties, to:

Michael P. Goldwater, Arizona Registrar of Contractors

George A. Schade, Jr. -----------------------

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