ALJDEC decisions subject to certification as final

2022A-04372-RFA-LS-ROC · Registrar of Contractors · 2025-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Darrel Deokielal

COMPLAINANT

Avantgarden Design + Build LLC

License No. ROC 290552,

RESPONDENT.

No. 2022A-04372-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 27, 2025

APPEARANCES: Angelia O. Doebler, Esq. appeared on behalf of Avantgarden Design + Build LLC, (hereinafter “Respondent”). Assistant Attorney General Charles III, Esq. appeared on behalf of the Arizona Registrar of Contractors, (hereinafter “Registrar”). Darrel Deokielal appeared on behalf of himself.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Registrar Exhibits 1 through 31.

FINDINGS OF FACT

1. Darrel Deokielal, (hereinafter Mr. Deokielal), filed a complaint with the Registrar alleging poor workmanship on the part of Respondent, in connection with the construction of a new home. See Exhibit 1, ROC-002-003.

2. The Registrar assigned the complaint to one of its investigators, Lisa Melton, (hereinafter “Investigator Melton”). See Exhibit 5.

3. On or about August 30, 2022, Investigator Melton conducted an initial job-site inspection. See Exhibit 2, ROC-078-118. Investigator Melton discovered that Respondent performed poor and incomplete work.

4. On September 12, 2022, Investigator Melton issued a Directive directing Respondent to repair several complaint items by appropriate means.

5. Mr. Deokielal filed an addendum to the complaint.

6. On November 3, 2022, Investigator Melton conducted a second job-site inspection to include the addendum. See Exhibit 9.

7. On November 16, 2022, the Registrar issued an Amended Directive to Respondent, directing Respondent to correct Complaint Items 1, 4, 5, 6, 7, 10, 12, 13, 24, 25, 26, 27, 28, 29, and 30, by appropriate means. See Exhibit 10. Regarding Complaint Item 25, the Amended Directive provided as follows:

.......................................

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

.......................................

Compliance Item 25: no drip edge/cap installed around the garage or the parapet walls on the property.

Investigator’s Observation: On October 14, 2022 the city building official performed (CBO) an inspection of the roof. This was done at the request of the homeowner as residence, which had previously obtained certificate of occupancy, appeared to have roofing concerns. Inspection INS-00092391 identified the following: Upon inspection, it appears roof/drip edge/parapet cap/flashing is not installed per code/manufacturers installation instructions. Stucco has been used as roofing material on top of parapet wall, pop outs and other protruding architectural feature. Stucco is not approved to be used as roofing material. Furthermore, parapet flashing cap/drip edge material is not installed throughout. Stucco is installed firmly up to drip edge in numerous locations causing water to saturate the stucco instead of dripping off as intended resulting in premature stucco degradation which will lead to failure and likely structural integrity degradation is not addressed. This appears to be

the case on both the main and detached structure. Respondent should correct by

appropriate methods and provide copy of passed inspection from CBO to investigator.

(See Addendum JSI Photos #1 - #5)

Governing Rule: A.R.S. §32-1154 (A) (2) (b), Departure from or disregard of: A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

ARS §32-1154 (A) (3), Violation of any rule adopted by the Registrar; Namely A.A.C. R4- 9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

8. The Registrar issued a Citation against Respondent’s license alleging that Respondent violated Arizona Revised Statutes, (hereinafter “A.R.S.”) § 32-1154 (A)(2)(b), A.R.S. § 32-1154(A)(3) - R4-9-108(b), and A.R.S. § 32-1154(A)(22).

9. Respondent filed an answer to the Citation and the matter was referred to the Office of Administrative Headings for an evidentiary hearing.

10. A hearing was held on May 12, 2023.

11. After the hearing, the Administrative Law Judge, (hereinafter “ALJ”), issued a recommended decision concluding that Respondent violated A.R.S. § 32-1154(A)(2)(b), A.R.S. § 32-1154(A)(3) - R4-9-108(b), and A.R.S. § 32-1154(A)(22). Specifically, the ALJ concluded that Respondent failed to correctly repair complaint items 1, 25, 26, 27, 28, and 29, without valid justification. See Exhibit 15, ROC-245-6.

12. The Registrar adopted the recommended decision. 13. On or about December 13, 2023, Complainant filed a claim for a payout from the Fund.

14. Complainant submitted bids to repair the deficient work with the claim, including a bid from Efficient Renovations, in the total amount of $30,500.00.

15. Shaquira Adebule is a Legal Assistant II with the Registrar. Ms. Adebule was assigned to determine whether Mr. Deokielal was eligible for a payout from the Fund, and the amount of compensable damages suffered by Mr. Deokielal.

16. At hearing, the parties did not dispute that Mr. Deokielal was eligible for a payout form the Fund. The parties disagreed that Mr. Deokielal was entitled to a payout in the amount of $30,000.

17. On November 29, 2024, Ms. Adebule sent an e-mail to Investigator Melton that provided, as follows:

I am reaching out again regarding the Recovery Fund claim filed by Mr. Deokielal. We spoke earlier this year regarding the bids the claimant provided. After our discussion, I sent a request to Complainant to provide new bids that show the cost to repair complaint items 1, 25, 26, 27, 28, & 29. Complainant has submitted two new bids. Both bids include the cost to demo the walk decks and install a new deck. Complainant previously informed me that contractors cannot repair the drip edge/flashing without removing the tile on the deck because the flashing is nailed down from the top and the tile installed over the flashing. I am going to discuss this with our attorneys to confirm if the Fund can or cannot pay for the cost to install new walk decks.

1. Efficient Renovations LLC, ROC 332589 - $30,500.00

2. Renco LLC DBA Renco Roofing, ROC 195475 - The removal and installation costs of the drip edge repair - $7,800.00

Walk deck installation $50,510.00

When you have time, can you review the bids and let me know your thoughts? I have attached your investigation documents and the new bids. Thank you for your assistance in this matter.

18. On December 2, 2024, Investigator Melton notified Ms. Adebule that she would be visiting the job-site because Complainant filed an additional complaint.

Investigator Melton notified Ms. Adebule that she would review the matter after she returned.

19. Investigator Melton visited the job-site on December 3, 2024.

20. After visiting the job-site, Investigator Melton responded to Ms. Adebule’s

e-mail.

21. On December 18, 2024, Investigator Melton provided the following response to Ms. Adebule:

..........

The flashing could be addressed by only removing the tiles at the perimeter, however, it would definitely impact any moisture barrier (seal coating) below the removed tiles as you would need to get to the deck below it to perform the corrective work. This would definitely have the potential to impact the surrounding area(s). Moisture always wins and always finds a way if one exists. If the industry is not willing to warranty this limited correction, it seems to me that full replacement is necessary. Additionally, similar replacement material (tiles) may not be available as the resident was constructed prior to 10/2020.

I hope this helps, I’m sorry it took so long.

22. Ms. Adebule determined that the bid from Efficient Renovations adequately addressed the issues that were found to be deficient by the ALJ. Additionally, Ms. Adebule determined that the bid from Efficient Renovations was the lowest bid.

23. Ms. Adebule found that that there was no unpaid balance because Complainant paid Respondent more than the purchase contract price. Ms. Adebule found that the total compensable actual damages suffered by Mr. Deokielal was $30,500.00. Ms. Adebule determined that Mr. Deokielal should receive $30,000.00 from the recovery fund because the statutory maximum payout amount is $30,000.00.

24. On January 25, 2025, the Registrar issued a Notice of Administrative Award that notified Complainant that he would be awarded $30,000 from the Fund.

25. Respondent requested a hearing regarding the proposed award.

26. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

27. A hearing was held on March 27, 2025.

28. At hearing, the Registrar presented the testimony of Ms. Adebule. Mr. Deokielal testified on behalf of himself and presented the testimony of Lawrence Naranjo. Tudor Spasov testified on behalf of Respondent.

29. At hearing, Mr. Naranjo explained that he is the qualifying party of a company that provides roofing work. Mr. Naranjo’s company contracts with a roofing contractor if roofing is required under a construction project. In preparing the estimate for Complainant, Mr. Naranjo’s company used a roofing subcontractor. Mr. Naranjo and the subcontractor visited the jobsite. Mr. Naranjo and the subcontractor walked on the deck. The estimate included a replacement of the entire deck because express will

Mr. Naranjo’s company would not warranty the repair without replacing the entire deck. At the time that Mr. Naranjo observed the deck, a tile was popped. Mr. Naranjo could see asphalt underneath along with two layers, but nothing more.

30. I find Mr. Naranjo’s testimony to be credible.

Testimony of Tudor Spasov

31. At hearing, Mr. Spasov stated that a total deck replacement was not necessary to repair the drip edge. Mr. Spasov alleged that a contractor could be properly repair the drip edge by removing only the outer tiles of the deck.

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.”

4. Upon consideration of the evidence presented at hearing, the Administrative Law judge concludes that the drip edge could not be adequately repaired without replacing the entire deck. The preponderance of the evidence shows that repairing the drip edge in the manner proposed by Ms. Spasov, (removing the tiles on the perimeter of the deck), would impact the seal coating below the removed tiles.

Mr. Naranjo asserted that would be required to demolish the deck because he does not know what lies beneath the tile. Mr. Naranjo provided credible testimony that he would not be able to warranty the work without replacing the entire deck.

5. 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 and abandonment violations for which Respondent was responsible.

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 $30,000.00.

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.

-54864001

001

-137160-45720000Done this day, April 16, 2025.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

By: OAH Staff