ALJDEC - Licensing
2022A-10516-NPC-ROC · Registrar of Contractors · 2023-10-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
ARC Roofing LLC,
COMPLAINANT
v.
Exterior Renovation Services LLC
License No. ROC 302964,
RESPONDENT
No. 2022A-10516-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 26, 2023 and September 28, 2023.
APPEARANCES: Antonio Ramirez on behalf of ARC Roofing LLC at both hearing sessions. Scott Adamson and Ron Szewc on behalf of Exterior Renovation Services LLC on April 26, 2023; however, no person appeared on behalf of Respondent on September 28, 2023.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
_____________________________________________________________________
FINDINGS OF FACT
Exterior Renovation Services LLC (Respondent) holds License No. 302964, Specialty Dual CR-42 Roofing, which was issued by the Registrar of Contractors (Registrar) in February 2016.
In December 2022, ARC Roofing LLC (Complainant) filed a Non-Payment Complaint Form (Complaint) against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the remaining sum of $4,800.00 for work performed in November of 2022. Complainant provided a copy of the paperwork, demonstrating a $10,800.00 total price for “68 squares” of one (1) inch foam roofing which included plywood installation (the cost of which was not yet specified and not included in the stated foam price) and a $6,000.00 deposit.
On December 29, 2022, the Registrar issued a Citation to Respondent for the alleged violation of A.R.S. § 32-1154(A)(10).
On January 10, 2023, Respondent filed its answer. Respondent stated that Complainant had not placed the plywood under “all” the A/C units, did not spray the A/C elbows, and did not provide a one inch depth of foam over the entire roof. Respondent noted that Complainant had not been able to perform corrective work at that time and, therefore, Respondent went ahead and coated to roof to make it water tight. Respondent stated that because Complainant did not offer to “remedy the problems,” Respondent should not have to pay the rest of the contract.
Complainant had not previously worked for Respondent; Complainant received a phone call from Respondent regarding the work and, except for the written estimate, the work performance process was mostly verbal.
At hearing, Complainant indicated he did not receive the deposit but did receive a check for the materials; he also indicated that the parties had agreed on a $1,500.00 price for the plywood work. However, at hearing, Respondent indicated that it had provided the $6,000.00 for the materials and had not agreed to a $1,500.00 price on the plywood work.
Complainant was to perform the foam installation on Friday November 11, 2022. However, he reached out to Respondent about the conditions and Respondent wanted the work performed no matter the conditions.
Complainant returned on Saturday November 12, 2022 to perform the work and contacted Respondent about the conditions, indicating the “cold” was affecting the foam expansion. Complainant suggested more foam material be secured for the project; however, Respondent again wanted the work performed no matter the conditions. Complainant continued with the installation and provided photographs to Respondent.
On Sunday, Respondent coated the foam.
On Monday, Complainant contacted Respondent who indicated to Complainant that Respondent was not going to pay; Complainant indicated that Respondent hung up on him. After multiple efforts to contact Respondent, they agreed to meet at the site; however, Respondent did not arrive. Another time was set for a meeting and workers were there; Complainant became frightened and left the site. Thereafter, Complainant filed the Complaint.
At hearing, Respondent’s witness acknowledged that Complainant had contacted him about the condition concerns and possible need for more materials. Respondent indicated that the work was just “maintenance” in that there was no tear off, just foam application over the existing foam. Respondent indicated that pre-foamed plywood was to have been placed under the AC units to fill the space so not as much foam would be needed in those areas.
Regarding the foam, Respondent indicated that they had gone ahead and coated the foam because they did not want it to be open to the elements; however, Respondent then complained that Complainant could not “fix” the foam after it had been coated.
At the first hearing session, the parties agreed to try to resolve the matter by asking the Registrar’s Investigator to come and do a building confidence inspection. Thereafter, the matter remained open for the parties to have that inspection completed and provide a status update to the Tribunal.
On June 19, 2023, Registrar Investigator Doug Barrett completed the confidence inspection and found as follows:
During the inspection with ARC Roofing LLC, several random areas throughout the roof were inspected for depth with a pin gauge. All tested areas were within standards measured at a “nominal inch,” which is defined as, “at least 1 inch with occasional 7/8” measurements acceptable. No recommendations for correction at this time.
The matter was not resolved informally between the parties and, at the time of the second hearing session, Respondent failed to appear.
Based on the hearing record, the arrears amount of $4,800.00 is stated on the Complainant. The contract amount is $10,800.00. While Complainant did not specify the amount of money he received for materials, Respondent stated it paid Complainant $6,000.00 for the materials. Therefore, calculating an amount unpaid results in the amount of $4,800.00.
Additionally, at hearing, Complainant discussed an amount due for the plywood installation, stating it was $1,500.00. The contract specifies that the amount for plywood was not included within the stated contract price of $10,800.00. The evidence demonstrates an additional amount was due. Respondent did not agree that it was $1,500.00, stating that no figure had been discussed by the parties.
According to the Registrar’s public record, Respondent has two open complaints, one of which is the instant Complaint.
CONCLUSIONS OF LAW
The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,
[f]ailure by a licensee or agent or official of a licensee to pay monies in excess of $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.
The hearing evidence established that Respondent owed a remaining total of $4,880.00 to Complainant for the foam roofing work Complainant performed. The hearing record failed to establish an amount due and owing for the plywood work.
Respondent failed to demonstrate any statutory justification or excuse for failing to issue payment to Complainant. Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed or that it had not received sufficient payment for the particular construction work that Complainant provided. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $4,800.00 for services and materials rendered in connection with Respondent’s contracting business.
Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s license.
RECOMMENDed order
Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order, the Registrar revoke Exterior Renovation Services LLC License No. 302964 until Respondent has provided to the Registrar, and the Registrar has accepted, documents that establish that Respondent has paid Complainant $4,800.00 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $4,800.00 in certified funds, the Registrar suspend Exterior Renovation Services LLC License No. 302964 for a period of two days.
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 the outstanding $4,800.00 to Complainant.
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.
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Done this day, October 17, 2023.
/s/ Kay A. Abramsohn
Administrative Law Judge
Transmitted electronically to:
Cindy Casaus, Interim Director
Registrar of Contractors
c/o Legal Department
[email redacted]
ARC Roofing LLC
9001 W Lawrence Ln
Tolleson, AZ 85353
[email redacted]
Exterior Renovation Services LLC
22001 N 80th Dr
Peoria, AZ 85383
[email redacted]
By: OAH