ALJDEC decisions subject to certification as final

2023A-01519-RFA-LS-ROC · Registrar of Contractors · 2025-05-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Roxann E Fisher,

COMPLAINANT,

v.

America's Best Roofing Company, LLC

License No. ROC 322113,

RESPONDENT.

No. 2023A-01519-RFA-LS-ROC

ADMINISTRATIVE LAW

JUDGE DECISION

HEARING: April 11, 2025.

APPEARANCES: Assistant Attorney General Charles Hover appeared for the Registrar of Contractors. Roxann Fisher appeared for Complainant. Katie Brown appeared for Respondent.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Department’s Exhibits 1 through 11. Complainant’s Exhibits. Respondent’s Exhibits.

_____________________________________________________________________

FINDINGS OF FACT

America's Best Roofing Company, LLC, (Respondent) was the holder of License No. 322113 issued by the Arizona Registrar of Contractors (Registrar) on September 20, 2018.

On or about January 14, 2021, the Registrar received a Complaint against Respondent from Roxann Fisher (Complainant) alleging poor work.

After an investigation a written directive was issued to correct the work. The Directive from the Registrar specified that:

Complaint Item 1: “Improper Deck Preparation, Improper and Incomplete Product Installation. Previous deck membrane is Silicone...GACO Elastomeric Coating will not adhere to Silicone...Deck is bubbled, cracked and peeling.”

Investigator’s Observations: Verified. The deck coating is failing. There are signs of degradation and poor adhesion noted throughout the deck coating surface. The complainant pointed out areas of the coating that are cracking and bubbling. The complainant demonstrated how the coating easily peels away from the surface below.

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.

Respondent performed some corrective work, but the deck did not meet workmanship standards.

The Registrar issued a Citation against Respondent charging possible violations of Arizona Revised Statutes (A.R.S.) 32-1154(A)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).

An administrative hearing was held, and in her Decision, the Administrative Law Judge considered Respondent’s arguments and concluded that Complainant established Respondent had, in relevant part, violated workmanship standards and failed to comply with the directive. The Administrative Law Judge recommended a 3-day suspension of Respondent’s license.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost of completing or repairing the project.

The Registrar issued a Notice of Administrative Award, finding that Complainant’s compensable actual damages were $25,800.95. Respondent contested the award and requested a hearing. 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.

A hearing was scheduled for December 5, 2024, and after several continuances, the hearing was held on April 11, 2025.

At the hearing, Respondent did not contest Complainant’s eligibility; Respondent only contested the amount of the award.

Doug Ulmer testified for the Registrar. He testified that Complainant was eligible and followed all of the steps required to receive an award from the recovery fund. He testified in support of the documents and calculation provided in the exhibits. He testified in support of Complainant being entitled to a $25,800.95 award.

Sergio Jimenez, owner of Respondent, testified for Respondent. He testified that Complainant rejected a more thorough version of the project, which would have included rebuilding roofing membrane and the substrate that accompanied it. He testified that he disagreed with the scope of the repairs included in the award. He testified Respondent did not use hammers.

Richard Kaiser, Ph.D., P.E., a licensed structural engineer, testified for Respondent. He testified that much of the dry-rot wood damage was not possible in the time period at issue, and therefore, Respondent’s work could not have been the cause of that damage. He testified that Respondent was unlikely to have caused the stucco damage near the upper gable vent: the vent was approximately ten feet above where the work occurred, and if pounding at the work site had caused that damage, other cracking and visible damage would be present between the work site and the gable vent. He also testified that the small holes in the stucco would not be sufficient to cause significant flooding. Overall, he opined that the gable-vent area reflected ordinary aging of the home.

Jeff Moldenhauer testified for Complainant. He testified he thought the gable-vent area stucco may have fallen off due to pounding; he also testified that some of the damage could have been due to age.

Timothy Martinez testified for Complainant. He testified that during his inspection he saw some cracking and dislodged pieces of stucco.

Roxann Fisher testified on her own behalf. She testified in support of the award. She testified that damage done by Respondent, where the deck attaches to the house, allowed water to penetrate behind the aluminum flashing.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132.01(B) provides, in pertinent part, as follows:

An award from the residential contractors’ recovery fund may not exceed the actual damages suffered by the claimant as a direct result of a contractor’s violation. Actual damages:

1. May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.

2. Must be established by bids supplied by or the value of work performed by a person that is licensed pursuant to this chapter if the person is required to be licensed pursuant to this chapter.

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.”

Respondent had an opportunity to correct the faulty work following the written directive from the Registrar and failed to do so.

In the recovery fund process, a bidding contractor is not obligated to accept the condition of existing work. If work is not completed to workmanship standard, it is reasonable for a bidding contractor to include removal of prior work and such costs are damages directly resulting from the violation.

The preponderance of the evidence supports rebuilding the deck flooring and the associated costs. It also supports correction of the lower-level flooding damage. However, it does not support rebuilding the entire deck structure, correcting the upper floor flooding, or correcting the gable-vent area.

Respondent met its burden with regards to damage in the gable-vent area and upper floor flooding. The preponderance of the evidence supports that work conducted on the deck did not cause the damage ten feet above it. The area immediately around the work site did show some minimal stucco damage, but it is not clear whether, or how, Respondent caused that damage. Furthermore, credible testimony of Mr. Jimenez established that Respondent did not engage in excessive blunt force to cause such damage, and the testimony of Mr. Kaiser established that other damage would be visible between the work site and the chipping stucco ten feet above it.

Damage to the framing of the deck structure was not “a direct result of a contractor’s violation.” Regardless of whether Respondent accepted the underlying condition, Respondent was not responsible for defects in the structure of the deck. Mr. Kaiser testified that dry rot takes consistent exposure to moisture over time; accordingly, damage to that wood was more likely than not to be pre-existing—it was not a “direct result” of Respondent’s violation.

Respondent’s failure to get a waiver, reflecting Complainant’s will to not rebuild the deck, and subsequent failure to refuse the job or leave if Complainant failed to agree to a change order, should not put Respondent on the hook to the extent identified by the Registrar. Respondent is responsible for their work and damages directly resulting from their work, not more.

RECOMMENDED ORDER

Based on the foregoing, it recommended that the Registrar recalculate the actual damages, in accordance with the above, based upon “actual damages suffered by the claimant as a direct result of a contractor’s violation.”

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, May 1, 2025.

/s/ Samuel Fox

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Charles Hover III

Assistant Attorney General

[email redacted]

America's Best Roofing Company, LLC

[email redacted]

Neal Eckel

Farhang & Medcoff

[email redacted]

Roxann Fisher

[email redacted]

By: OAH Staff