ALJDEC

99F-M0238-ROC · Registrar of Contractors · 2000-02-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On February 10, 2000, at 9:00 a.m., a hearing was scheduled to determine if Respondent had violated provisions of A.R.S. (32-1154(A). Respondent failed to appear. Complainant was present. Prior to the hearing, the Office of Administrative Hearings received a communication from Respondent indicating that he would not be attending the hearing. Based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are submitted to the Director of the Registrar of Contractors. FINDINGS OF FACT On or about March 16, 1996, Complainant entered into a contract with Respondent, calling for Respondent to remove the existing roof over Complainant’s garage and install a new roof. The contract price was $870.00. Respondent was paid in full. Complainant testified that in April of 1997, upon the first measurable rainfall since the roof replacement, the roof leaked causing water damage to his family room. Complainant further testified that he contacted Respondent and Respondent attempted to repair the roof. Complainant testified that in February of 1998, the second sizable rainfall occurred, and again the roof leaked, causing additional damage to the family room. Respondent performed remedial work on the roof for the second time, however, in June of 1998, upon the third sizable rainfall, the roof leaked again. Respondent made a third attempt to remedy the leaking roof. Complainant testified that he requested Respondent to reimburse him in the amount of $225.00, for damage to the family room caused by the leaking roof. Respondent paid Complainant the $225.00. On August 18, 1998, Complainant filed a complaint with the Registrar of Contractors. A Corrective Work Order was issued on October 21, 1998, instructing Respondent to abide by the jobsite agreement and write a letter of intent for repairs to be completed. Subsequently, Respondent made the fourth attempt at corrective work. In August of 1999, Complainant noticed damage in the garage caused by the leaking roof. Complainant estimates the cost to repair this damage to be approximately $200.00. On August 30, 1999, Complainant re-filed the complaint against Respondent. Complainant hired another contractor, Prime Roofing, to repair the roof. Prime Roofing repaired Complainant’s roof in either late November or early December of 1999. Prime Roofing addressed several deficiencies in the roof over Complainant’s garage, such as: no flashing under north window leaving large gap exposing inside of framing of wall; rubber roofing did not seal to vent in middle of roof and it was never sealed; seams in rubber roofing were not sealed properly in northwest section of roof; and rubber roofing was not sealed properly to southwest scupper and was never sealed. See Complainant’s Exhibit 1. Complainant paid Prime Roofing $183.19 for the repair work. The undersigned Administrative Law Judge finds that Respondent performed the original as well as the remedial work, in an unworkmanlike and unprofessional manner. The undersigned Administrative Law Judge further finds that Respondent has a blatant disregard for this administrative process, as evidenced by Respondent’s failure to appear for this hearing, for which he received notice via certified mail on December 20, 1999, and despite such, purchased airline tickets on January 27, 2000, for a flight scheduled to depart on the very morning for which the hearing was scheduled.

CONCLUSIONS OF LAW The Complainant bears the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). The undersigned Administrative Law Judge concludes that the preponderance of the evidence establishes that Respondent has violated A.R.S. (32- 1154(A)(3), namely R4-9-108, as set forth in Findings of Fact ## 2,3,5,6,8, and 9. The undersigned Administrative Law Judge concludes that the preponderance of the evidence of record establishes that Respondent has violated A.R.S. (32-1154(A)(7), as set forth in Findings of Fact ## 2,3,5,6, and 8. It was wrongful of Respondent to not perform in a professional and workmanlike manner and further, not to accomplish the necessary remedial work. Complainant has suffered substantial financial injury, in that he paid Respondent for the professional and workmanlike installation of a new roof and did not receive such, resulting in damage to Complainant’s family room and garage. Further, Complainant was compelled to have his roof repaired by another contractor, for which additional funds were expended. The undersigned Administrative Law Judge concludes that the preponderance of the evidence establishes that Respondent has violated A.R.S. (32- 1154(A)(23), as set forth in Findings of Fact ## 5 and 8. RECOMMENDED ORDER In view of the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be suspended until the Registrar of Contractors receives proof that Respondent has performed the following: Respondent shall pay $383.19 to Complainant as reimbursement for the amount Complainant paid to Prime Roofing for the roof repair work, as well as the estimate for the damage repair to the garage.

It is further recommended that if Respondent reimburses the aforesaid sum on or before the Order’s effective date, then the above-provided license suspension shall not take place, but instead, Respondent’s Class B license shall be placed on active suspension for a period of 14 days, followed immediately by a period of disciplinary probation for 90 days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter.

It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $300 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. (32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. (32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered.

Done this day, February 14, 2000.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of February, 2000, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, Arizona 85007

By ___________________________

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