ALJDEC

99F-M1359-ROC · Registrar of Contractors · 2000-05-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 5, 2000 APPEARANCES: Complainant appeared on her own behalf. Respondent is a sole proprietorship and, as such, she was required to either appear on her own behalf or through an attorney. Respondent failed to appear on her own behalf or through counsel. Nevertheless, Respondent did send her husband, A.W. Blakeslee (“A.W.”) to appear at the hearing, believing, albeit erroneously, that he could represent her, since he was an employee of the company and was actively involved in the construction project at issue herein. Although A.W. was not allowed to represent Respondent, he was allowed to testify at the hearing. 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. Pursuant to written contract, Respondent was retained by Complainant for the purpose of installing a patio enclosure and deck onto her manufactured home. Complainant alleges certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. At the outset of the scheduled hearing, Complainant attempted to raise new issues referable to alleged roof leaks and specified claimed deficiencies in the roof construction. A review of the applicable complaint filed with the Registrar of Contractors revealed that the only issues enumerated therein involved the “R” value of the foam insulation installed on the roof, a specified wall switch, the exterior hose bib, a missing section of exterior siding, and a deck squeak. Moreover, the assigned Agency inspector appeared at the instant hearing and he confirmed that on his jobsite inspection there had been no mention of any issues other than those set forth in the filed complaint. Thus, based on basic principles of due process under the law, the instant hearing was limited to only those issues enumerated in the filed complaint. Nevertheless, nothing in this ruling would serve to prevent Complainant from filing additional complaints with the Registrar of Contractors regarding any items not previously set forth in the complaint at issue herein.

3. Complainant claims entitlement to R-37 foam and aluminum insulation on the roof of the new patio enclosure constructed by Respondent. Respondent disputes this claim. In this regard the following salient facts were adduced at the hearing and are important to note:

a. The applicable written proposal and contract appears on Respondent’s business form. The pre-printed form contains, among other things, Respondent’s name and the information that Respondent constructs “patio enclosures and insulated roofs.” b. The hand written portion of the contract includes the following phrase, “3 ½” foam plus aluminum R 37.” It was undisputed that this phrase was not on the proposal at the time same was originally presented to Complainant by Respondent and that the handwriting on said section is different than the rest of the hand written portion of the contract. c. Complainant was unable to testify regarding who (Complainant or Respondent) wrote the phrase at issue herein onto the contract after same was initially presented to her. Nevertheless, the hand written section of the contract regarding “3 ½” foam plus aluminum R 37” does appear on not only Complainant’s yellow copy of the form but also on Respondent’s white (top) copy. Apparently the contract was prepared on a multi-page form. d. Complainant testified that at the time she returned the signed contract to A.W. and tendered her down-payment to him, the above-described phrase was inserted onto the contract after she had discussed this and other issues of the contract with him. e. A.W. testified that he did not see this phrase on the contract at the time he accepted the down-payment from Complainant. It should be noted that the contract was originally prepared and signed by Respondent’s owner and qualifying party before it was presented to Complainant. Apparently at the time A.W. received the down-payment he also signed the contract. f. A.W. testified that there is no such thing as foam roof insulation with an “R” value of 37. However, credible evidence was entered into the record which demonstrated that the over-all insulation factor of the roof installed by Respondent was low (“6 to 10”) and that Respondent should have been able to obtain an “R”-value on the roof of 28 to 32.

4. Notwithstanding the fact that A.W. may claim that he did not see the portion of the contract in question at the time that he received the signed contract and down-payment from Complainant, it is logical to assume that before the materials for the job were purchased and construction commenced, Respondent would have to examine the terms of the contract. Thus, Respondent knew or should have known that that the language regarding the insulation factor for the roof had been inserted into the contract. If this was an error Respondent should have corrected same either before or during the construction project.

5. The weight of the credible evidence of record was sufficient to support a finding that Complainant did not receive the type of insulated roof that she reasonably believed she would obtain from Respondent, a contractor in the business of constructing insulated roofs. Although there may be a mistake on the contract referable to the availability of R-37 pre- manufactured roof insulation, it is determined and held that Complainant explained her desire for a roof with substantial insulation to Respondent and/or her agents.

6. Respondent was on notice verbally and in writing of Complainant’s request for a roof with significant insulation. Under all of the facts and circumstances presented herein it is determined and held that Complainant did not receive the benefit of the bargain regarding the insulation for her roof. Thus, Respondent is responsible to provide Complainant with an insulated roof that will come as close as possible to an insulation factor of R-37.

7. Respondent’s failure to provide Complainant with adequate roof insulation, as described in the foregoing findings of fact, not only constitutes substandard and unacceptable workmanship but also is deemed to be a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws.

8. Complainant was unable to sustain the requisite burden of proof necessary to establish any contracting law violation in regard to the absence of a specified wall switch as you enter the patio enclosure or in the installation of a specified hose bib. Moreover, the instant record was devoid of any testimony or evidence regarding the issue of the squeak on the deck.

9. 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 one item of remedial work, involving the installation of a missing section of the T-111 siding, within a stated period of time. The inspector did not issue any other directives to Respondent. It was undisputed that Respondent complied with the directive to install the missing T-111 siding.

10. 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 Contractors’ 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), 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-03 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished one of the following: a. Installed adequate roof insulation material to come as close as possible to providing Complainant with an R-37 insulation value. b. Concludes other mutually acceptable arrangements with Complainant. 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 and in that event this Citation, together with the Complaint upon which it is based, shall be closed.

Done this day, May 12, 2000

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Michael P. Goldwater 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