ALJDEC decisions subject to certification as final

2018A-84-RFA-ROC · Registrar of Contractors · 2019-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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:

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]

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 This matter lies within the Registrar’s jurisdiction. 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] “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] 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 40 days from the date of that certification. Done this day, October 16, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See Registrar’s Exhibit 4. [2] See the Registrar’s Exhibit 5. [3] See the Registrar’s Exhibit 7. [4] 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). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary 1220 (8th ed. 1999).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826