ALJDEC

99F-A0216-ROC · Registrar of Contractors · 1999-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 27, 1999 APPEARANCES: Josephine Perkins on her own behalf; Michael Torrez on his own behalf ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT

Josephine Perkins (“Complainant”) is the daughter of the owner of the residence located at 1996 Anthony Lane, Chino Valley, Arizona ( the “Home”). The owner of the Home has Alzheimer’s and is under 24 hour care at a nursing care institution. In August 1997, Carolyn Petty (“Ms. Petty”) moved into the Home as a tenant. Subsequently, Ms. Petty noticed leaks in the Home and notified Complainant of the leaks. The above-mentioned leaks were noticed in two corners of the addition that had previously been made to the Home, as well as leaks in the bathroom, and bedroom that Ms. Petty converted into a computer room.

Complainant instructed Ms. Petty to contact roofing contractors to arrange for bids to repair the roof at the Home. Ms. Petty noticed Respondent’s advertisement in the Yellow Pages stating: ”We fix leaks. All work guaranteed” and contacted Michael Rey Torrez (“Respondent”) to inspect the roof. On November 14, 1997, Respondent inspected the roof and submitted a written proposal to perform certain repairs. Respondent also submitted to Complainant a written proposal to install a new roof. The evidence of record establishes that when Respondent inspected the roof, he was informed of three leaks that Complainant had and prior to submission of the above-mentioned written proposal to repair the roof, Respondent was made aware of a fourth leak. Respondent represented to Complainant that he could fix the areas on the roof that were leaking. Complainant paid Respondent $650.00 to perform repairs to the roof. Respondent sent his employee, James Hazelwood (“Mr. Hazelwood”), the person to perform the initial repair work. Subsequently, Complainant contacted Respondent and informed him that the roof still leaked. Respondent sent Mr. Hazelwood to the Home to address Complainant’s leak problems. Mr. Hazelwood testified that he did not see any problems with the initial repairs but performed additional work on the roof. Mr. Hazelwood informed Ms. Petty that even with the repairs, the roof would leak because the roof had initially been installed with nails. Mr. Hazelwood informed Ms. Petty that the initial installation of the roof created and would continue to create holes in the roof as nails become loose. According to Mr. Hazelwood, the holes were causing the leaks and the repairs in the area in which Respondent had performed work were sound. As a result of such repairs, ponding occurs on other areas of the roof during rainfall. For the roof not to leak, the entire roof would have to be sealed. Such repairs would cost more than the cost to replace the roof. The weight of the credible evidence establishes that after Respondent’s initial repairs to the roof as well as after two return visits to the Home by Respondent to correct the leaks, Complainant was still experiencing leaks in the same areas in the interior of the Home that caused Complainant to hire Respondent. Mr. Hazelwood testified that the areas actually leaking are not the same areas repaired by Respondent but are adjacent areas. However, when it rains, water still flows to the same interior areas in which Complainant noticed the original leaks. The testimony of Mr. Hazelwood, as set forth above, is determined to be credible. Registrar of Contractors’ Inspector Cliff Frandsen conducted a jobsite inspection of the roof in the presence of the Complainant, Respondent and Ms. Petty. Mr. Frandsen testified that he is not an expert in roofing construction and his visible inspection of the repairs performed by Respondent failed to reveal any cracks or holes. However, Inspector Frandsen observed the damage to the drywall in the Home that occurred as a result of the leaks. The drywall in the ceiling and walls mentioned above were stained and buckling. As a result of the jobsite inspection, Inspector Frandsen determined that the leaks existing at the home were the responsibility of Respondent. Inspector Frandsen issued a Corrective Work Order on January 12, 1999, requiring Respondent to make necessary and proper repairs to the roof and be responsible for corollary damages to the interior home after the initial roof repairs. It is undisputed that Respondent attempted to comply with the Corrective Work Order but was denied access to the Home. The evidence of record establishes that Complainant did not want Respondent to do any more work at the Home because of his attitude, his display of anger and frustration when he discussed the situation and because he did not correct the leaks. During the hearing, Complainant represented that she will not allow Respondent onto the property to perform any work with respect to the Home. The weight of the evidence of record shows that Respondent thought that the roof had enough problems to warrant a proposal to install a new roof. However, the weight of the evidence also establishes that Respondent knew or should have known prior to entering into a contract with Complainant that repairs to the roof would not stop the leaks and that Complainant needed to have a new roof installed at the Home. It is determined that the work Complainant contracted for with Respondent was not accomplished nor could it be. Consequently, Complainant is entitled to restitution in the amount of $650.00 and Respondent is responsible for the damage to the interior of the Home that occurred due to the ongoing leaks that were not repaired appropriately by Respondent. CONCLUSIONS OF LAW The evidence of record established that Respondent violated the provisions of A.R.S.§§32-1154(A)(7) and (3) or A.A.C. R4-9-108. The evidence of record fails to establish that Respondent violated A.R.S. §32-1154(A)(23) because Respondent attempted to comply with the Corrective Work Order but was denied access. 3. The Registrar of Contractors’ authority in matters such as presented herein, includes the ability to impose restitution, in whole or in part, as a reasonable condition to reduce any possible disciplinary action against contractors. The exercise of such authority is deemed appropriate in the instant case. Therefore, based upon all the evidence, reasonable conditions in this case consist of payment by Respondent to Complainant of $650.00 as partial or full restitution because Complainant did not receive the benefit of the contract entered into between the parties and Respondent is responsible to repair the drywall damage to the Home caused by the leaks that were not properly repaired. Imposing such conditions is more preferable than merely imposing a disciplinary action against Respondent’s license without providing a condition to reduce or eliminate same. 4. The Registrar may order a “restitutionary remedy as part of the Registrar’s regulatory authority to take appropriate disciplinary action against those who violate the licensing”...laws set forth in A.R.S. § 32- 1154A (1) through (24), inclusive. Sunpower of Arizona v. Arizona State Registrar of Contractors, 166 Ariz. 437, 440. 803 P.2nd 430 (App. 1990). An administrative award of damages is not an unconstitutional exercise of administrative authority where due process procedural rights are protected, where the authority to prohibit conduct has been well defined as in A.R.S. § 32-1154, and where judicial review is available as provided in A.R.S. § 12-901, et seq. Id. at 437. RECOMMENDED ORDER Based on the above, it is recommended, commencing on the effective date of the Order entered in this matter, that the Class Complainant-C42 license of Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has paid or tendered the sum of $650.00 to Complainant and caused an appropriately licensed contractor to accomplish appropriate and effective remedial work to correct the interior damage to the drywall in the corners of the addition, the bathroom and computer room as described above in the Findings of Fact. It is further recommended that if Respondent complies with the above, on or before the effective date of the Order entered in this matter, the above license suspension shall not take place. Done this day, August 10,1999

______________________________________ Lewis D. Kowal Administrative Law Judge

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

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

ATTN: Joyce Armijo

By ___________________________ -----------------------

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