ALJDEC - Licensing

2022A-10202-CHC-ROC · Registrar of Contractors · 2023-04-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Evelyn Nuyten and

Egon Nuyten,

COMPLAINANTS,

v.

Platinum Exteriors, Inc.

License No. ROC 326501,

RESPONDENT.

No. 2022A-10202-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 7, 2023

APPEARANCES: Complainant Evelyn and Egon Nuyten appeared on their own behalf. Kevin Presmyk appeared on behalf of Respondent Platinum Exteriors, Inc. Arizona Registrar of Contractors Investigator Christopher Fultz appeared as a witness. Jessica Boehmer appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Platinum Exteriors, Inc. (“Respondent”) is the holder of License No. 326501 issued by the Arizona Registrar of Contractors (“Registrar”). Kevin Presmyk is Respondent’s Qualifying Party and Director.

On or about January 10, 2022, Evelyn and Egon Nuyten (“Complainants”) contracted with Respondent for “Respondent to “[t]ear off old roof and replace with 30 year laminate shingle system. Installed new rolled roof as well on back patio.” The contract price was $10,000.00 and Complainants paid Respondent in full.

On or about November 7, 2022, the Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Christopher Fultz. On December 7, 2022, Investigator Fultz conducted a Jobsite Inspection, at which both parties were present and during which the parties agreed to have Respondent begin corrective work prior to the issuance of a Written Directive.

On December 16, 2022, Investigator Fultz issued a Written Directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify

the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on January 13th, 2023.

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

Compliance Item: 1 - Roof leaks near fireplace.

Investigator’s Observation: There is a possible location of this leak by the fireplace and the valley. Contractor should inspect and repair.

Compliance Item: 2 - Roof leaks near A/C unit.

Investigator’s Observation: The leak at the A/C appears to be from where the water backs up from the mount on the roof and under the flashing of the unit.

Compliance Item: 3 - Roof leaks have caused internal drywall damage in the walls and on the ceiling throughout the home.

Investigator’s Observation: Damage in the area of the fireplace leak and the A/C unit is consistent with active leaks. These areas need to be addressed.

Compliance Item: 4 - Roof leaks have caused damage to attic insulation.

Investigator’s Observation: Attic insulation in the areas of the A/C and Fireplace should be addressed for water damage and mold. This needs to be addressed.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 5 - Roof decking boards feel week and squish underfoot

throughout the roof.

Investigator’s Observation: I checked the roof and did not notice any decking that seemed to be outside of standards.

Compliance Item: 6 - Some shingles are loose across the roof.

Investigator’s Observation: Contractor should inspect roof for loose

shingles.

Compliance Item: 7 - Loose nails.

Investigator’s Observation: Contractor should inspect roof for loose nails.

Compliance Item: 8 - Damage to inner wall foam insulation due to water

damage.

Investigator’s Observation: Spray form was installed in the block wall of the home. Thus type of foam insulation is water resistant,

Compliance Item: 9 - Corner of the back patio roof lifts up.

Investigator’s Observation: This is consistent with rot to the wood. It isn't a responsibility from the contractors work on the roof.

Compliance Item: 10 - The roof is not properly sealed in many locations.

Investigator’s Observation: A final inspection of the roof is suggested by the contractor at the completion of the work.

All errors in original.

On January 3, 2023, at 9:00 a.m., after the issuance of the Written Directive, and prior to its expiration, Respondent emailed Investigator Fultz stating that he was “having a little trouble communicating with the owners” and that Respondent had “made numerous attempts to set up a time to fix the drywall but I’ve got zero replies but I have everything documented.”

On January 3, 2023, at 9:55 a.m., Investigator Fultz responded to Respondent’s email, “[s]end me copies of the requests.”

On January 3, 2023, at 10:53 a.m., Respondent responded to Investigator Fultz, “[t]hey actually just finally responded so I will be in touch.”

On January 30, 2023, Investigator Fultz conducted a Compliance Inspection at which Respondent was not present. Investigator Fultz’s Compliance Jobsite General Notes state the following:

The directive was not completed.

This case will be forwarded to legal for further.

Compliance Findings:

Compliance Item: 1 - Roof leaks near fireplace.

Investigator’s Observation: There is a possible location of this leak by the fireplace and the valley. Contractor should inspect and repair.

CJSI Observations: There is still an active leak at this location. Also I noted severe water damage to the wood below the roof where the leak has occurred.

Compliance Item: 2 - Roof leaks near A/C unit.

Investigator’s Observation: The leak at the A/C appears to be from where the water backs up from the mount on the roof and under the flashing of the unit.

CJSI Observations: There is still an active leak at this location. Also I noted severe water damage to the wood below the roof where the leak has occurred. There is also now some very weak wood sheeting in the area. The A/C was not reinstalled properly and has now voided the warranty from the A/C company. The frame from the A/C was rested on t rolled up shingles and was only being held on by a couple of nails with the weight of the system resting on them.

Compliance Item: 3 - Roof leaks have caused internal drywall damage in the walls and on the ceiling throughout the home.

Investigator’s Observation: Damage in the area of the fireplace leak and the A/C unit is consistent with active leaks. These areas need to be addressed.

CJSI Observations: This area had been repaired but is showing new signs of an active leak in the area.

Compliance Item: 4 - Roof leaks have caused damage to attic insulation.

Investigator’s Observation: Attic insulation in the areas of the A/C and Fireplace should be addressed for water damage and mold. This needs to be addressed.

CJSI Observations: I was not able to confirm if the insulation in this area was corrected, but now with the new evidence of an active leak, this is still an issue.

Note:

There are also new damages to the home since the directive has been in place and after the contractor was onsite attempting repairs. Some of the previous locations mentioned as being soft sheeting in the original inspection have become more of an issue. In the first inspection, I walked on the areas and it didn’t seem they were an issue. During this inspection, there were now a few locations where I felt I might fall through the roof.

All errors in original.

Investigator Fultz thereafter forwarded the Complaint to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).

Investigator Fultz testified consistently with the findings contained in his Jobsite Inspection notes, the Written Directive, and his Compliance Jobsite General Notes. Investigator Fultz testified that Respondent performed corrective work, however, the roof is still leaking, and therefore, the corrective work was not properly completed. Investigator Fultz explained that he believes that during the initial Jobsite Inspection, he may have “missed” the locations described as “weak and squishy” by Complainant, as they were definitely an issue at the Compliance Inspection.

Ms. Nuyten testified that she provided multiple opportunities for Respondent to perform its work, however, she also informed Respondent that they would not be home over the holidays. Ms. Nuyten credibly asserted that she was always willing to allow Respondent the opportunity to return to the project. Ms. Nuyten testified that every time Respondent returned to perform work, there was additional damage, the leaking continues, and that this is “going on two years.”

Jessica Boehmer, Complainants’ daughter, testified that while Complainants were out of town over the holidays, she observed fresh tar on the roof and that the air conditioning unit had been moved, and that this was the second or third time that Respondent had performed repairs while Complainants were not at home.

Kevin Presmyk, Respondent’s representative, testified that he attempted to repair the roof twice and began the drywall repair, however, “ran out of time” because he “did not realize the deadline was January 13th.” Mr. Presmyk asserted that Respondent is “not a bad contractor” and that Complainants are “great people.” Mr. Presmyk testified that “he takes pride in his reputation” and that the project “went south.” Mr. Presmyk testified that he “does not blame [Complainants] for their frustration” however, he does not want to lose his license.

Administrative notice is taken of Respondent’s prior License record on April 14, 2023. Such prior License record reflects that Respondent’s License No. 326501 was first issued on October 11, 2019, and is active. Such prior License record also reflects that there is only the instant open complaint, and no disciplined or resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear the burden of proof to establish Respondent’s statutory violations 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.”

The uncontroverted evidence of record established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainants established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The uncontroverted evidence of record further established that Respondent did not complete the corrective work following the Written Directive being issued and there was no valid justification for Respondent’s failure to do so. Therefore, Complainants established that Respondent failed to take appropriate corrective action following a Written Directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 326501 for a period of four (4) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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, April 17, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Martín Quezada, Director

Registrar of Contractors

[email redacted]

Platinum Exteriors, Inc.

[email redacted]

Evelyn and Egon Nuyten

[email redacted]

Chris Fultz

[email redacted]

By: OAH Staff