FINACT2018A-84-RFA-ROC-FinalAgencyAction-6604.pdf

2018A-84-RFA-ROC · Registrar of Contractors · 2019-12-03

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Gerald George Salitros, Case No. 2018-84

COMPLAINANT, Docket No. 2018A-84-RFA-ROC v.

Cal-Pro Roofing LLC FINAL ADMINISTRATIVE DECISION AND License No. ROC 306666, ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection of each finding of fact or conclusion of law. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and accepts it. CONCLUSION AND ORDER Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on December 16, 2019. FINAL NOTE On page 3 line 19 replace “Cal-Pro” with “Complainant.”

Dated November 6, 2019. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Copy mailed via USPS First Class mail November 6, 2019 to: Respondent Cal-Pro Roofing LLC 22350 N 20th Ave Phoenix, AZ 85027 Courtesy copy sent via USPS first class mail to: Respondent Cal-Pro Roofing LLC 22441 N 20th Ave Phoenix, AZ 85027

Respondent’s Attorney Daniel L. Marks Esq 1850 N Central Ave Ste 2400 Phoenix, AZ 85004 Complainant Gerald George Salitros 13328 W Beardsley Rd Sun City West, AZ 85375 Copy sent electronically this same date to: Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar Registrar’s Counsel John Tellier, Assistant Attorney General

Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge Case No. 2018-84 / SA

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 10.16.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gerald George Salitros, No. 2018A-84-RFA-ROC COMPLAINANT, v. ADMINISTRATIVE LAW JUDGE DECISION Cal-Pro Roofing, LLC, ROC License: ROC 306666, RESPONDENT.

HEARING: September 26, 2019 APPEARANCES: Complainant Gerald George Salitros appeared on behalf of himself. Assistant Attorney General John Tellier appeared on behalf of the Registrar of Contractors. Daniel L. Marks, Esq. appeared on behalf of Respondent Cal-Pro Roofing, LLC. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. The Registrar of Contractors issued License No. 306666 to Respondent Cal-Pro Roofing, LLC (Cal-Pro). 2. On or about January 8, 2018, Complainant Gerald George Salitros filed a complaint with the Registrar against Cal-Pro related to a roofing project for poor work in connection with a construction project where Cal-Pro repaired Mr. Salitros’s roof. According to the complaint, Mr. Salitros had entered into a contract with Cal-Pro on December 14, 2017, and Cal-Pro had last performed work on their residence on December 14, 2017. 3. The Registrar investigated the complaint. 4. On February 13, 2018, the Registrar issued a DIRECTIVE to Cal-Pro. The DIRECTIVE provided, in relevant part, as follows:1 You are hereby directed to remedy the following violations by the appropriate means: See Registrar’s Exhibit 4. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 10.16.2019 ROC LEGAL

1. Rubber roof bubbled up and lots of patches. 2. Ceiling pan broken, sagging at south end first 4 panels, bent down excessively between the first panel and the second panel. 3. Where metal pan is split, rubber roof is sunk down. 4. House roof eaves covered with rubber roofing, metal strips & screws. 5. Damaged rain hat over sliding door.

5. On March 6, 2018, the Registrar issued a Citation and Complaint

charging Cal-Pro with violations of Arizona Revised Statutes (A.R.S). § 32-1154(A)(3),

namely A.A.C. R4-9-108 and A.R.S. § 32-1154(A)(22). 2

6. A hearing was held on May 14, 2018 before the Arizona Office of

Administrative Hearings.

7. On May 31, 2018, Judge Randolph D. Wolfson issued a ruling finding that

Respondent had violated A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).

8. Judge Wolfson found that Mr. Salitros failed to establish that the following

conditions were caused by Cal-Pro poor workmanship:

a. Rubber roof bubbled up and lots of patches; b. Ceiling pan broken, sagging at south end first 4 panels, bent down. c. Ceiling pan broken, loose & sagging – Metal pan split.

9. Judge Wolfson found that found that that the following items

demonstrated poor workmanship on the part of Cal-Pro:

a. Where metal pan is split, rubber roof is sunk down. b. Damaged rain hat over sliding door; c. House roof eaves covered with rubber roofing, metal stripes & screws. 10. On June 13, 2018, the Registrar issued a Final Administrative Decision and Order adopting Judge’s Wolfson’s finding that Cal-Pro had violated A.R.S. § 32- 1154(A)(3) and (A)(22). Pursuant to the order, the Registrar suspended Respondent’s license for a period of one day. 11. On or about October 17, 2018, Mr. Salitros filed a claim to the Residential Contractors’ Recovery Fund (“Fund”) with the Registrar.3

See the Registrar’s Exhibit 5. 3 See the Registrar’s Exhibit 7. RECEIVED 10.16.2019 ROC LEGAL

12. On July 26, 2019, the Registrar issued a Notice And Order Of Denial Of Recovery Fund Claim that provided, in relevant part, as follows: Actual Damages Summary

The contract provided by Matrix Management Inc DBA Sun City Awning and Patio to repair deficient work performed by Respondent included excessive work that did not address the issues presented in the Registrar’s CWO and the findings in the ALJ decision. In this case, the Complainant failed to provide bids to show the cost to repair the outstanding items in the Registrar’s CWO and instead chose to have the elitewood cover replaced in its entirety. Additionally, the contract from Matrix Management Inc. included the cost to remove the structure and install new 4” insulated roof panels cover. The 4” insulated roof panels are not of the same material as the existing rubber membrane material. Furthermore, the contract with Matrix Management, Inc. was not itemized in a way that allowed the reviewer to remove items that were deemed excessive.

The licenses for Matrix Management Inc DBA Sun City Awning and Patio were revoked on April 24, 2019 for disciplinary reasons. Due to the revocation of those license, Complainant would not be able to obtain a revised contract that would allow the reviewer to deduct the excessive work. For this reason, Complainants’ claim to the Recovery Fund must be denied.

13. Cal-Pro filed a timely request for hearing on the Registrar’s Notice And

Order of Denial of Recovery Fund Claim.

14. The Registrar referred the matter to the Office of Administrative Hearings,

an independent state agency, for an evidentiary hearing regarding the denial.

15. A hearing was held on September 26, 2019.

16. At hearing, Mr. Salitros contended that his roof could not be prepared

without removing and replacing his existing roof. 17. The Registrar contended that Mr. Salitros submitted a bid for excessive work that exceeded the scope of the items which were found to be deficient by the Registrar. Furthermore, the bid provided by Mr. Salitros was not itemized so that the excessive work could be separated from the work that was found to be deficient. CONCLUSIONS OF LAW RECEIVED 10.16.2019 ROC LEGAL

1. This matter lies within the Registrar’s jurisdiction. 2. A.R.S. § 32-1132(A) provides that “[a]n award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's

violation but shall not exceed an amount necessary to complete or repair a residential

structure or appurtenance within residential property lines. . . .” Respondent bears the

burden of proof to establish that the proposed payout from the Fund is incorrect by a

preponderance of the evidence.4

3. “A preponderance of the evidence is such proof as convinces the trier of

fact that the contention is more probably true than not.”5 A preponderance of the

evidence is “[t]he greater weight of the evidence, not necessarily established by the

greater number of witnesses testifying to a fact but by evidence that has the most

convincing force; superior evidentiary weight that, though not sufficient to free the mind

wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to

one side of the issue rather than the other.”6

4. After review of all the evidence, the Tribunal concludes that the

Registrar’s decision to deny Mr. Salitros’s claim for an award from the recovery fund

was appropriate. The bid submitted by Mr. Salitros was excessive and exceeded the scope of the items that were found to be the result of poor workmanship by the Registrar. Moreover, the bid was not itemized so that the excessive items could be discounted. RECOMMENDED ORDER Based on the foregoing, it is recommended that Mr. Salitros’s appeal be denied. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be days from the date of that certification. Done this day, October 16, 2019.

/s/ Velva Moses-Thompson See A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B) (1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 6 BLACK’S LAW DICTIONARY 1220 (8th ed. 1999). RECEIVED 10.16.2019 ROC LEGAL

Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors