ALJDEC

99F-A0163-ROC · Registrar of Contractors · 1999-05-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 17, 1999 APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its owner and qualifying party, Kevin Ash. 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. Pursuant to contract, Complainant retained Respondent to install a new roof, rebuild the existing chimney, install new fascia boards, and replace the existing verandah deck cover. Complainant alleges certain deficiencies in the work performed and/or materials supplied by Respondent and same are discussed in the findings below. 2. Notwithstanding the local building authority requirement that permits were needed for the work performed by Respondent on Complainant’s residence, Respondent failed to obtain said permits. The permits were ultimately obtained by Complainant. 3. The original chimney work performed by Respondent was not capable of meeting applicable code, due to the fact that the height was not three feet above the ridge line, wood was in contact with the flue, and specified materials were not approved for a working chimney. Although Respondent contends that he believed the chimney was not a working chimney, Complainant disputes said contention. The applicable contract, which was prepared by Respondent, is silent in this regard. The weight of the credible evidence of record was sufficient to support a finding that the chimney was intended by Complainant to be a part of a working fireplace. The chimney has been corrected, albeit very belatedly, by Respondent. 4. The original verandah deck cover was constructed of fiberglass and was supported by several steel support beams. Respondent removed the deck cover in question and installed a new deck cover made out of wood. The new cover increased the load on the support beams by approximately 400 pounds. The local building inspector questioned the integrity of this support for the new verandah deck cover and indicated that without proper engineering, which Respondent had failed to supply, he would not be able to approve the construction in this area. 5. Complainant ultimately contracted with an unlicensed contractor, Michael Mirco (“Mirco”), to install wood support posts in order to assure the structural integrity of the support for the new verandah roof built by Respondent and to comply with all code requirements. In this regard, Complainant paid a total of $1,185.63 to Mirco. Complainant seeks an order from the Registrar of Contractors requiring Respondent to pay restitution to her for the costs expended in this regard. 6. Respondent contends that he does not have any responsibility for the support of the new verandah roof deck cover due to the fact that he was only hired to build a new roof deck. On the contrary, by virtue of agreeing to perform specified construction work, Respondent accepted all conditions as being adequate to support a workmanlike result in accordance with all applicable building and safety codes. It is highly improper for a contractor to install a new structure, thereby adding weight to the existing support members, without first receiving the proper building permits and approval from the local building authority. Respondent’s failure to assure the adequacy of the existing support members and to receive approval from the local building authority before commencing the work constitutes unacceptable workmanship as well as a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws. 7. Notwithstanding the foregoing finding referable to Respondent’s work on the verandah roof deck cover, it is important to emphasize that nothing in this world is free. Complainant did not contract with Respondent to install the wood support beams and is not entitled to have same installed at no cost. Moreover, by virtue of utilizing an unlicensed contractor to perform the remedial work in question she may not expect the Registrar of Contractors to order a licensed contractor to pay for work that was clearly performed in contravention of the State’s Contractor Licensing laws. It stands to reason that the Registrar of Contractors, the very agency empowered by the legislature with enforcing the laws requiring contractors to be licensed, should not order any payment for unlicensed contracting work. Any such condition, were it to be imposed by the Registrar, could be construed by its very nature to constitute aiding and abetting the unlicensed activities of Mirco. 8. The weight of the evidence of record was sufficient to support a finding that the new fascia work installed by Respondent is indicative of substandard and unacceptable workmanship, as manifested by a lack of uniformity in the dimensions of the fascia boards, uneven miter joints, an area wherein no fascia material was installed, and specified loose areas of the fascia installation. Respondent contends that he has no liability for the aesthetically unacceptable result of the fascia installation since he claims that the fascia installation was an “afterthought” by Complainant after the new roof plywood deck was installed and thus, it was not possible at that point in time to install fascia material that would be uniform in dimension. On the contrary, by virtue of agreeing to perform the fascia installation, Respondent is once again deemed to have accepted the surface and conditions as being adequate to support a workmanlike result and, as such, should be properly estopped to claim that he has no responsibility for any inadequacies in the fascia work due to a claim that Complainant only requested that such work be performed after a considerable portion of the roof replacement work had been performed. 9. At a specified point in time Complainant experienced a leak in the area between the new verandah deck cover and the existing roof. Respondent corrected this leak and there was no adequate showing that his response to notice of said deficiency was anything but timely and appropriate. Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. 10. Complainant contends that Respondent left nails protruding through the bottom side of the roof eaves. Respondent contends that those nails were not his nails but nails from the existing roof installation. The evidence of record was inadequate to support Complainant’s contention and thus, Complainant failed to sustain the requisite burden of proof necessary to establish any contacting law violations attributable to Respondent in this regard. It is important to note that Complainant has since installed vinyl siding underneath the eaves and the complained of nail ends are no longer visible. 11. 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 on the chimney within a stated period of time. Notwithstanding the terms of said Agency directive and Respondent's efforts to comply with same, total compliance was not achieved until approximately a few weeks before the date of the instant hearing, due in part to communication problems between Respondent and the originally assigned inspector for the Registrar of Contractors and the local building official regarding what exactly needed to be done to bring the chimney within the applicable code requirements. Although a violation of the applicable charged section of the State’s Contracting laws is determined in this regard, under all of the salient facts and circumstances, no civil penalty would appear to be warranted. 12. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent's prior disciplinary record of final Registrar of Contractor’s Orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent's prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), (2) and (3); namely Rule R 4-9-108.

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-61 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the fascia boards described in Finding of Fact no. 8, above. 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 C-61 license shall be placed on disciplinary probation for a period of 120 days commencing on the effective date of the Order entered in this matter or the date on which notice of Respondent's proper compliance with the terms of the Order is filed with the Registrar of Contractors, whichever is later. . . . . . . . . . It is further recommended that the Registrar of Contractors conduct an investigation into the past and possible on-going unlicensed contracting activities of Michael Mirco. Done this day, May 25, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

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

Michael P. Goldwater, Inspector Registrar of Contractors 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