ALJDEC

99F-L0197-ROC · Registrar of Contractors · 1999-12-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 1999 APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its owner and qualifying party, Al Schulze. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant retained the services of Respondent for the purpose of installing a new white elastomeric type coating on his roof. Complainant alleges certain deficiencies in the work performed by Respondent and same are discussed in the findings below. 2. The following salient facts were adduced at the hearing and are important to note:

a. On or about May 14, 1999, Respondent submitted a bid to Complainant to perform the “re-whitening” of the roof at an apartment complex owned by Complainant. The total cost shown on the bid was for $1,829.63. b. Complainant accepted Respondent’s bid and Respondent performed the contracted work on or about May 27, 1999. Subsequent to Respondent’s completion of the work, Complainant paid the invoice in full. c. On or about June 5, 1999, Complainant examined the roof coating procedure performed by Respondent and did not believe that same was properly applied. At this point, Complainant called Respondent on June 5, 1999 (Saturday) to complain about the work performed and demand that Respondent come out to look at the work, immediately, and discuss the problem. d. Respondent’s owner and qualifying party was not in the city at the time of the above-described Saturday phone call and Complainant was advised of this fact by Respondent’s wife. Respondent’s wife further advised Complainant that her husband would be out of town for one week and that upon his return he would look at the roof and decide what needed to be done. Complainant was also advised that no one else from the company worked on the weekends and thus, nobody would be available to view the roof on the weekend. e. Complainant was not satisfied with Respondent’s wife’s response and advised her if no one came out to his view his roof immediately, he would fix the roof himself and complain about same to the Registrar, as well as other sources. f. Complainant ultimately stripped off Respondent’s work and applied a new roof coating. He contends that he spent over $2,300.00 for materials and for labor to correct the roof. It should be further noted that $1,102.00 of the total sum was paid to individuals that performed the remedial work and these individuals were not shown to be licensed contractors. g. On June 9, 1999, Complainant filed the instant complaint with the Registrar of Contractors. At the time of the jobsite inspection, the remedial work by Complainant had already been completed and thus, there was nothing for the assigned inspector from the Registrar of Contractors to view. h. Subsequent to concluding the aforementioned jobsite inspection, the assigned Agency inspector issued an RC-C-007 form to the parties indicating that he determined that the complaint was a matter for civil court. Complainant disagreed with the inspector’s report and requested a hearing. i. The assigned Registrar’s inspector advised the Agency that he felt the request for a hearing should be denied. Nevertheless, the Registrar apparently declined to exercise its discretion in this matter and issued a Citation against Respondent, resulting in a setting of the instant hearing.

j. Complainant also filed a civil court action against Respondent, in the Lake Havasu Justice Court Small Claims Division, in case no. J-0804-CV- [number redacted]. A review of the complaint filed with the Court reveals that Complainant was seeking an Order requiring that Respondent should reimburse Complainant for the cost of the remedial work performed on the white coating, due to Complainant’s contention that the work performed by Respondent was poor. k. The above-described civil court matter has already been to trial and the court has issued its Order. Evidence of record at the instant hearing indicates that Respondent’s defense in the civil court case was that he was not given a reasonable opportunity by Complainant to view the work and make repairs, if needed. The Judge entered a judgment in favor of Respondent, thereby granting no relief to Complainant. l. The Judge’s ruling in case no. J-0804-CV-[number redacted] states, in pertinent part, “the owner must give the contractor a reasonable time to inspect the project and to cure any defects noted. The contractor cannot be held responsible for the cost of re-coating the roof when he was not given a reasonable time to assess the defects and to correct them.” 3. The prior court decision is binding upon the parties and this Tribunal by the principles of res judicata. Not only is the prior decision of the court binding on this proceeding but this Tribunal completely concurs with the court decision. 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. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. It is not reasonable, in a non-health and safety situation, to contact a contractor on a weekend and demand that he come to the jobsite on the weekend to view the work. 4. The salient facts and circumstances presented in the instant case militate against any finding of violations by Respondent of the spirit and intent of the State’s Contracting laws.

CONCLUSIONS OF LAW

1. It is a well settled doctrine and policy of law that final judgments of civil courts and administrative tribunals may not be subject to collateral attack in subsequent proceedings. The findings and judgment in Justice Court case no. J-0804-CV-[number redacted] are res judicata as to the issues and allegations in the instant Registrar complaint. Thus, there is no basis to find any violations of the charged section of the State’s Contracting laws.

RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed. Done this day, December 22, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

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

Michael P. Goldwater, Director 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