ALJDEC decisions subject to certification as final

2022A-10202-RFA-LS-ROC-RS · Registrar of Contractors · 2024-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Evelyn Nuyten,

COMPLAINANT

Platinum Exteriors Inc.

License No. ROC 326501,

RESPONDENT

No. 2022A-10202-RFA-LS-ROC-RS

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 5, 2024

APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General Charles S. Hover, III. Complainant Evelyn Nuyten did not appear. Kevin Presmyk, qualifying party, appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: State’s exhibits 1 through 18 were admitted. Respondent’s exhibits 1 through 5 were admitted.

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 326501 to Respondent.

On or about November 5, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to Respondent’s work on her home.

As a result of the workmanship Complaint, the Registrar issued a Citation against Respondent charging possible violations of Arizona Revised Statute (A.R.S.) § 32-1154(A)(3), namely Arizona Administrative Code (A.A.C.) R4-9-108(A); and A.R.S. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In her April 17, 2023 Decision, Administrative Law Judge Sondra J. Vanella considered Respondent’s arguments and concluded that Respondent had violated the provisions of the Registrar’s statute as noticed in the Citation.

On or about May 4, 2023, the Registrar issued a Final Administrative Decision and Order finding the violations and imposing a four day suspension.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost for repairing and completing the project. As part of the claim process, Complainant submitted multiple bids that Complainant had received for the project.

The Registrar issued a Notice of Administrative Award, finding that Complainant’s actual damages were $22,110.00. Respondent requested a hearing, believing the payout was too high. Complainant did not contest the amount of the administrative payout. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

Hearing was held on April 5, 2024.

Hearing Evidence

The written directive from the Registrar specified that the following items required corrective work to be completed:

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.

Dylan Warwick, Legal Assistant II for the Fund, testified on behalf of Complainant. Mr. Warwick testified that he reviewed the Fund application, the Final Administrative Decision and Order, the Administrative Law Judge Decision, the Warranty Deed, the Affidavit of Property Value, and the Spousal Disclaimer to determine that Complainant was eligible to access the Fund.

Mr. Warwick further reviewed the written directive from the Registrar that had been issued, Judge Vanella’s April 17, 2023 Decision regarding the underlying Complaint, and bids submitted by Complainant in calculating Complainant’s actual damages. Mr. Warwick testified that he consulted Investigator Chris Fultz with regard to the appropriateness of these bids.

Based on Investigator Fultz’s opinion, and taking the lesser of the bids submitted, a total of $22,110.00 payable from the Fund was appropriate. This amount included $19,538.00 for a roof replacement and $2,572.00 to repair the damage in certain rooms caused by the leaks in the roof.

Mr. Warwick further testified that, upon receiving Respondent’s bids, he contacted Complainant and was advised that no other roofers had been to her property to conduct estimates.

Kevin Presmyk, qualifying party, testified on behalf of Respondent. Mr. Presmyk questioned why an entire new roof was needed in order to repair a chimney leak and A/C unit leak.

Respondent submitted an estimate from 3D Roofing for $1,500.00 to repair the leaks in the roof. This estimate also stated:

NOT INCLUDING THE AREAS IN QUESTION, THE OVERALL INTEGRITY OF THE ROOF IS IN GREAT CONDITION AND IS INSTALLED CORRECTLY AND FUNCTIONING PROPERLY. THE ONLY AREAS OF CONCERN WOULD BE THE AREAS SURROUNDING THE CHIMNEY AND AIR CONDITIONING UNIT TO BE REPAIRED. IT IS NOT NECESSARY TO REPLACE THE ENTIRE ROOF TO REPAIR THE LEAKING AREAS. DUE TO THE SHINGLE USED STILL BEING IN PRODUCTION, A REPAIR IS MANAGEABLE WITHOUT COMPROMISING THE REST OF THE ROOF.

Respondent submitted an estimate from LOBO Construction and Remodeling, LLC that quoted a price of $2,055.00 to repair the chimney and A/C area leaks. The quote further stated: “The roof looks brand new – It would be a stretch to recommend a new one, and we would recommend just the needed repairs.”

Respondent submitted an estimate from Trilogy Development LLC for $1,280.00 to repair the chimney and A/C area leaks. The quote further stated: “Please note, roof is in new condition and Trilogy Development does not recommend replacing the entire roof. Our recommendation is to repair the affected areas as noted above.”

Respondent further submitted letters from 2 other roofing contractors that opined that there was no need to replace an entire roof due to a chimney leak.

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.

“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.”

Because Respondent bears the burden of proof, Respondent is tasked with providing evidence to substantiate his position that an entire new roof is not needed. While Respondent provided estimates for repairs and “opinions” from roofing contractors that stated a new roof was not needed, however, the uncontroverted evidence was that these opinions were issued without those contractors ever having laid eyes on the actual project. In that regard, it weakens the weight of the evidence presented.

Even accepting Respondent’s testimony that a completely new roof was not needed, Respondent did not provide the Tribunal with any credible bids from which it could issue an award if the Tribunal were to find in Respondent’s favor. Thus, Respondent failed to meet its burden.

The Registrar provided Investigator Fultz’s opinion that the bids Complainant submitted “all seem right.” Contrary to the evidence Respondent provided, Investigator Fultz had actually inspected the property.

Therefore, after review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainant’s actual damages.

Accordingly, Complainant is entitled to a payout from the Fund in the amount of $22,110.00.

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 $22,110.00.

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 19, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Platinum Exteriors INC

5232 W Tonto Rd

Glendale, AZ 85308

[email redacted]

Charles S. Hover, III

Office of the Attorney General

Licensing & Enforcement Section

2005 N. Central Avenue

Phoenix, AZ 85004

[email redacted]

Evelyn Nuyten

5019 W. Carol Ave.

Glendale, AZ 85302

[email redacted]

By: OAH Staff