ALJDEC - Licensing
2023A-03811-CHC-ROC · Registrar of Contractors · 2023-08-15
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Frank DiMarco,
COMPLAINANT,
v.
Matthew Joseph Mesker
DBA: Go Pro Property Services
License No. ROC 326820,
RESPONDENT.
No. 2023A-03811-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 8, 2023
APPEARANCES: Complainant Frank DiMarco appeared on his own behalf. Matthew Mesker appeared on behalf of Respondent Matthew Joseph Mesker, doing business as Go Pro Property Services. Arizona Registrar of Contractors Investigator David Fagerburg appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
Matthew Joseph Mesker, doing business as Go Pro Property Services (“Respondent”), is the holder of License Number 326820 issued by the Arizona Registrar of Contractors (“Registrar”). Matthew Joseph Mesker is Respondent’s Qualifying Party and owner.
On or about March 31, 2021, Frank DiMarco (“Complainant”) contracted with Respondent for Respondent to perform work to Complainant’s roof as follows: i) clean roof; ii) patch and repair with fiberglass reinforced material; iii) coat roof with Tucson Rubberized Coating; and iv) provide a two (2) year warranty and twelve (12) year manufacturer warranty on the coating. The contract price was $3,000.00 and Complainant paid Respondent in full.
On or about March 31, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the Complaint to Investigator David Fagerburg. Investigator Fagerburg conducted a Jobsite Inspection on May 11, 2023. Investigator Fagerburg’s Jobsite Inspection Notes set forth his findings as follows:
Compliant Item 1: Roof has developed air pockets and has debris sealed in the roof;
Investigator’s Observation: Verified. At this jobsite investigation I observed a flat foam roof with Tucson Rubberized Coating applied. See P (3) thru P (14). The coating has some air pockets and is peeling where dirt and debris appears to have been sealed under the coating. See P (7) thru P (9). The respondent shall correct by appropriate means.
Compliant Item 2: Contractor offered 2 year labor and 12 year product warranty.
Investigator’s Observation: Verified. After this jobsite investigation in reviewing the written contract provided by the complainant I am able to verify there is a specification regarding a 2 year warranty for labor and a 12 year manufacturer warranty on the flat roof coating. Prior to this jobsite investigation the complainant provided a written document from Tucson Rubberized Coating stating, our warranty application process requires that the owner/contractor apply for a warranty within thirty (30) days of completion of the job. As this job was completed over two years ago and we have no records of warranty submissions, we are not able to issue any manufacturer's warranty on the products used at the said address. I informed the complainant the ROC does not get involved in warranties.
Compliant Item 3: Per product manufacturer, contractor did not follow warranty guidelines for 12 year warranty to be honored by the manufacturer
Investigator’s Observation: Verified. Prior to this jobsite investigation the complainant provided a written document from Tucson Rubberized Coating which states; After visually inspecting the roof located at 6119 E Montgomery Rd. Cave Creek, Az 85331, it is our estimation that a minimum of two hundred ten (210) gallons of Tucson Rubberized Coatings products would need to have been applied to qualify for a twelve (12) year manufacturer warranty. Anything less than this would not qualify for such a warranty. During this jobsite investigation the complainant provided a recorded conversation with the respondent. The respondent stated he used 70 gallons of Tucson Rubberized Coating to coat the entire flat roof. I am able to verify the respondent did not follow the product manufacturer warranty guidelines and installation specifications for a 12 year warranty and comply with the contract specifications. The respondent shall compete the project per contract.
All errors in original.
Investigator Fagerburg issued a Written Directive dated May 17, 2023, 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 Thursday June 8, 2023.
. . . .
Investigator Note:
1: In reviewing the written contract submitted by the complainant I am able to verify there is at least 1 of the 9 minimum elements of a contract missing violating ARS §32-1158 (A) Minimum elements of a contract.
You are directed to remedy the following violations by the appropriate means:
Compliant Item 1: Roof has developed air pockets and has debris sealed in the roof;
Investigator’s Observation: Verified. The respondent shall correct by appropriate means.
Compliant Item 3: Per product manufacturer, contractor did not follow warranty guidelines for 12 year warranty to be honored by the manufacturer
Investigator’s Observation: Verified. The complainant provided a recorded conversation with the respondent. The respondent stated he used 70 gallons of Tucson Rubberized Coating to coat the entire flat roof. I am able to verify the respondent did not follow the product manufacturer warranty guidelines and installation specifications for a 12 year warranty and comply with the contract specifications. The respondent shall compete the project per contract.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Compliant Item 2: Contractor offered 2 year labor and 12 year product warranty.
Investigator’s Observation: Verified. I informed the complainant the ROC does not get involved in warranties.
All errors in original.
Following the expiration of the Written Directive, Investigator Fagerburg ascertained that Respondent had not performed the required corrective work.
Thereafter, Investigator Fagerburg forwarded the matter 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), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).
Investigator Fagerburg testified consistently with his findings contained in the Jobsite Inspection Notes and Written Directive. Investigator Fagerburg testified that Respondent’s contract document was missing: i) the jobsite address or legal description of the property; ii) an estimated date for completion of the project; and iii) the advisement to the homeowner regarding how to file a complaint with the Registrar.
Investigator Fagerburg testified that Respondent utilized 70 gallons of coating and that the roof was over 4,500 square feet which would require more than 70 gallons for two coats.
Investigator Fagerburg testified that when Respondent agreed to perform the work to Complainant’s roof, Respondent accepted the surface upon which it performed its work and if there was an issue with that surface, Respondent should have notified Complainant that the substrate needed to be corrected and incorporated such into the contract, or declined to contract to work on the project.
The Registrar’s substantive policy statement 2017.01 sets forth the following pertinent information:
Acceptance of the Surface
As a general principle in construction, a subcontractor who performs work on top of a surface prepared by another accepts the surface. The subcontractor should have inspected the surface for any flaws or defects that would affect the work he proposes before performing the work. If he found the surface to be unacceptable, he should have called any defects to the owner’s or general contractor’s attention so that the owner can choose whether to pay for the defective surface to be corrected or if the owner is not willing to pay to correct the surface, the contractor may obtain an explicit warranty disclaimer.
Complainant described the work that Respondent was contracted to perform and explained that he chose to have Respondent use a product with a twelve (12) year warranty for “peace of mind.” Complainant testified that he contacted Tucson Rubberized Coatings, the manufacturer of the coating product Respondent utilized, and was informed of the following: “[O]ur warranty application process requires that the owner/contractor apply for a warranty within thirty (30) days of completion of the job. As this job was completed over two years ago and we have no records of warranty submissions, we are not able to issue any manufacturer's warranty on the products used at the said address.”
Complainant testified that he contacted Mr. Mesker to inquire about how much product Respondent had applied to the roof and Mr. Mesker told Complainant 70 gallons had been applied. Complainant played an audio recording at hearing of Mr. Mesker acknowledging that only 70 gallons had been applied.
Complainant testified that no work was performed on the roof or the parapets after Respondent performed its work. Respondent painted the home after it performed its work on the roof.
Mr. Mesker asserted that the issues with the roof were caused by other work being performed to the home. However, the other work was performed by Respondent. Mr. Mesker acknowledged that he was unaware of the warranty process and “did not mean to mislead” Complainant. Mr. Mesker testified that he performed the work at a “major discount.”
After hearing the parties’ respective testimony, Investigator Fagerburg was called to testify once again. Investigator Fagerburg testified that the issues with the roof did not appear to have been caused by painting, and during such testimony he referenced Jobsite Inspection photographs 12 and 13. Investigator Fagerburg testified that it was his opinion that there was no intervening cause of the damage to the roof.
Administrative notice is taken of Respondent’s prior License record on August 10, 2023. Such prior License record reflects that Respondent’s License Number 326820 was first issued on November 12, 2019, and is active. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled complaints, and no discipline against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bears 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 credible, substantial, and probative evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).
The evidence established that Respondent’s written contract for the project lacked the jobsite address or legal description of the property, an estimated completion date, and the advisement to the homeowner regarding how to file a complaint with the Registrar. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).
The evidence established that Respondent did not complete the required corrective work following the Written Directive being issued and that valid justification for such failure did not exist. Therefore, Complainant 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 Number 326820 for a period of five (5) 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 (30) 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.
It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.
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, August 15, 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]
David Fagerburg
[email redacted]
Frank DiMarco
[email redacted]
Matthew Joseph Mesker
DBA: Go Pro Property Services
[email redacted]
By: OAH Staff