ALJDEC - Licensing

2022A-01440-RFA-LS-ROC · Registrar of Contractors · 2023-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Pugh and Sue Habkirk

COMPLAINANTS,

Blue Coyote Painting, LLC

DBA: Kangaroo Roof Coating,

License No. ROC 312523

RESPONDENT.

No. 2022A-01440-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 13, 2023

APPEARANCES: Complainants Michael Pugh and Sue Habkirk appeared on behalf of themselves. Christopher Harvey appeared on behalf of Respondent Blue Coyote Painting, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On or about April 20, 2021 Complainants and Respondent entered into roof coating contract for the amount of $2,900.00. Complainants paid Respondent $2,900 pursuant to the contract.

2. Respondent performed work to Complainants’ roof pursuant to the contract.

3. Complainants subsequently file a complaint with the Arizona Registrar of Contractors (Registrar) alleging poor work on the part of Respondent.

4. The Registrar investigated the complaint and issued a Directive to Respondent that provided, in relevant part, as follows:

You are directed to remedy the following violations by the appropriate means:

Complaint Item 1: “Roof has bubbles, peeling, Tears and Holes, in first 6 months since job was completed”

Investigator’s Observations: Verified. The complainant pointed out and showed me the roof on his residence to have extensive bubbles, and areas where the roof coating has peeled, wrinkled, and torn from itself. I also observed the roof to have areas of ponding water from rain the previous day approximately 18-20 hours prior to JSI.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 2: “Overspray ruined Skylights and Tile roof”

Investigator’s Observations: Verified. The complainant pointed out and showed that the skylights and a portion of his tile roof have overspray coating them. I also observed additional overspray on the HVAC system. Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

5. On April 14, 2023, the Registrar issued a Citation to Respondent alleging that Respondent had violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3), namely Arizona Administrative Code (A.A.C.) R4-9-104(A), and 32-1154(A)(22).

6. On May 17, 2022, the Registrar issued a Final Administrative Decision and Order (Default) wherein the Registrar found that Respondent had violated A.R.S. § 32-1154(A)(3), A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

7. On or about July 26, 2022, the Registrar received a claim for a payout from the Registrar’s recovery fund from Complainants. Complainants submitted bids from four contractors to repair the deficient work: Arizona Skylight Specialists in the amount of $2,200 for the replacement of the skylights, Southern Arizona Roof Associates LLC in the amount of $1,716.02 for the replacement of the skylights, Umbrella Roofing LLC in the amount of $14,160.00 for re-roofing and repairs (options A and F), and Rock Roofing LLC for roof and tile repair.

8. The claim was reviewed by Shaquira Adebule, Legal Assistant II at the Registrar. After reviewing the bids and obtaining the advice of Investigator Hammons, Ms. Adebule determined that the bid from Southern Arizona included the work necessary to repair the skylights and comply with the Directive. See Exhibit 8. Ms. Adebule determined that the bid from Umbrella Roofing included the work necessary to repair the items in the Directive. However, Ms. Adebule determined that the bid from Rock Roofing did not address the necessary repairs listed tin the Directive. See id.

9. Ms. Adebule determined Complainants’ actual damages by subtracting the amount paid to Respondent from the bids from Southern Arizona and Umbrella Roofing. Ms. Adebule subtracted $2,900 from $15,876.02. Ms. Adebule determined that Complainants’ actual damages were $12,976.02.

10. The Registrar issued a Notice of Administrative Award to Complainants. The Registrar determined that Complainants were eligible for recovery fund payout in the amount of $12,976.02.

11. Respondent requested a hearing regarding the payout.

12. The matter was referred to the Office of Administrative Hearings (OAH) for

an evidentiary hearing.

13. On November 9, 2019, the Registrar issued a Notice of Hearing setting

the above-captioned matter for hearing on April 29, 2021, at the OAH in Phoenix, Arizona.

14. A hearing was held on April 29, 2021.

15. The Registrar presented the testimony of Ms. Adebule. Ms. Glover testified on behalf of herself. Christopher Harvey testified on behalf of Respondent. 16. Mr. Harvey disputed the recovery fund award. Mr. Harvey contended that the roof was not damaged and that he was only hired to perform a roof coating and not a roof replacement. Mr. Harvey stated that Complainants’ home is over 30 years old. Mr. Harvey stated that he was embarrassed by the overspray and he agreed that Respondent was responsible for the skylights. Mr. Harvey contended that he is being charged 5 times the amount of his contract with Complainants.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Ariz. Rev. Stat. § 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.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

After review of all the evidence, the Tribunal concludes that the award provided by the Fund is an accurate reflection of Complainants’ actual damages. The award appears to properly remedy the workmanship violations for which Respondent was responsible. In the absence of contemporaneous documentary evidence that the bid utilized was excessive, the Tribunal finds that the bid was, in fact, appropriate.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive a payout from the Residential Contractors’ Recovery Fund in the amount of $12,976.02.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, March 6, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Seth T. Hargraves, Esq.

Office of the Arizona Attorney General

2005 N. Central Avenue - SGD/LES

Phoenix, Arizona 85004

[email redacted]

Martín Quezada, Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Blue Coyote Painting, LLC

DBA: Kangaroo Roof Coating

2251 N Dragoon St

Tucson, AZ 85745

[email redacted]

Michael Pugh and Sue Habkirk

4623 E. Red Mesa Dr.

Tucson, AZ 85718

[email redacted]

By: OAH Staff