ALJDEC decisions subject to certification as final

2023A-03811-RFA-LS-ROC · Registrar of Contractors · 2024-03-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Fabrizio Frank Di Marco,

COMPLAINANT

Matthew Joseph Mesker,

DBA: Go Pro Property Services,

License No. ROC 336925,

RESPONDENT

No. 2023A-03811-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 12, 2024

APPEARANCES: Complainant Fabrizio Frank Di Marco appeared on his own behalf. Matthew Mesker, Owner and Qualifying Party, appeared on his own behalf. The Arizona Registrar of Contractors was represented by Assistant Attorney General Mona Baskin.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: State’s Exhibits 1 through 7 were admitted. Administrative Notice was taken of State’s Appendix Exhibits A and B. Complainants Exhibits A and B were admitted.

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 336925 to Respondent.

On or about March 30, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to Respondent’s work on his home.

As a result of the workmanship complaint, the Registrar issued a Citation against Respondent charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); Ariz. Rev. Stat. § 32-1154(A)(12), namely A.A.C. §32-1158; and Ariz. Rev. Stat. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In her August 8, 2023 Decision, Administrative Law Judge Velva Moses-Thompson considered Respondent’s arguments and concluded that Respondent had violated the provisions of the Registrar’s statutes as noticed in the Citation.

On or about September 11, 2023, the Registrar issued a Final Administrative Decision and Order finding the violations and imposing a five day suspension.

Complainant then filed a claim on September 20, 2023, with the Residential Contractors’ Recovery Fund (Fund) to recover the cost of repairing and completing the project. As part of the claim process, Complainant submitted two bids that Complainant had received for the project.

The Registrar issued a Notice of Administrative Award (Award) on November 29, 2023, finding that Complainant’s actual damages were $9,120.00. Respondent appealed the Award. Complainant appealed the Award. No reason for appeal was stated from either party. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

The hearing was held on February 12, 2024 via Google Meet.

Hearing Evidence

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

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.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

. . . .

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.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

. . . .

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.

Governing Rule: No Action

Katelyn Rolling, Legal Assistant II for the Fund, testified that she reviewed the contract, the written directive from the Registrar that had been issued, Judge Moses-Thompson’s August 8, 2023 Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages. Ms. Rolling, after conferring with Investigator Fagerburg, determined that the top section of the Efficient Roofing LLC’s June 3, 2023 bid (ER1) for $9,120.00 was appropriate to make Complainant whole. In Investigator Fagerburg’s email to Ms. Rolling, he stated that the “second section describes the same repairs as needed for an additional $965.00” and that “had Respondent applied the proper amount of Tucson Rubberized coating for a 12 year warranty the cost would be in line with the repair bid.” He further stated that he “would consider the second section of the bid to be a duplicate of the first section and not be allowed.” Based on Investigator Fagerburg’s email, Ms. Rolling determined a total of $9,120.00 payable from the Fund was appropriate.

Complainant produced a higher bid by Efficient Roofing LLC prior to the hearing. Complainant testified that Respondent was supposed to “patch and repair with fiberglass reinforced material” which was not done in this case. He stated that, in Exhibit 1, the “air pockets” were visible in the pictures. Complainant further testified that Respondent cut out two “air pockets,” removed the foam, turned it upside down and resealed it with the existing foam.

Courtney Debski, a representative from Efficient Roofing LLC, testified on behalf of Complainant. Ms. Debski testified that the second portion of the invoices were in relation to blisters appearing in the foam, rather than the elastomeric coating and, therefore, was not duplicate billing. Ms. Debski testified that typically when a blister is cut out, new urethane foam needs to be applied. However, upon Efficient Roofing LLC’s inspection, it was apparent that the old blisters were cut out and existing foam was used to put it back into the hole from where it was cut out and resurfaced over with coating.

Ms. Debski testified that if the blisters in the foam were not addressed, the blisters would reappear. In order to address the blisters in the foam, Efficient Roofing LLC would have to cut out the existing blisters, spray new foam into it, and coat directly on top of the blisters as soon as the new foam was sprayed. Ms. Debski testified that the first section of the estimates addressed the porous bubbles contained in the elastomeric coating while the second section of the estimates addressed the blisters in the foam. Each section corrected something different.

Ms. Debski further testified as to the difference between the two quotes. ER1 quoted for 755 elastomeric coating while Efficient Roofing LLC’s December 11, 2023 bid (ER2) contained in Exhibit B quoted for Tucson Rubberized acrylic coating. Ms. Debski testified that the price differential was due to quoting a different product. The price differential was also due to an increase in the product’s price over the last six month.

Respondent testified on his own behalf. Respondent testified that he was not a roofing contractor, that he was not allowed to do work over $5,000 and that Complainant knew what he was buying. He further testified that these hearings were beyond the scope of what he thought any of this would come to.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The purpose of the recovery fund is to provide improved protection for owners and lessees of property who contract for the construction or alteration of residential structures. McMurren v. JMC Builders, 204 Ariz. 345 (App. 2003).

Ariz. Rev. Stat. § 32-1132.01(B) provides that “[a]n 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 “[m]ay not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines” and “[m]ust be established by bids supplied by or the value of work performed by a person that is licensed.”

Complainant and Respondent filed appeals of the Registrar’s recommended payout from the Fund. As such, Complainant bears the burden to establish by a preponderance of the evidence that the recommended payout was inappropriately low and Respondent bears the burden to establish by a preponderance of the evidence that the recommended payout was inappropriately high.

“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.”

While it appears that Complainant’s original intent when entering into the contract with Respondent was for patch work and re-coating, unfortunately Respondent’s substandard work caused additional damage to Complainant’s roof. Therefore, in order to make Complainant whole, the additional damage Respondent caused must also be repaired.

In order to repair the new damage Respondent caused, the blisters that Respondent attempted to fix need to be addressed. To address those issues, section two of the bid needs to be approved. Investigator Fagerburg, without having the benefit of hearing Ms. Debski’s testimony, incorrectly gave the opinion that section two was duplicative billing. Ms. Debski’s testimony established that it was not duplicative billing, but rather billing to correct Respondent’s work. If section two is not approved, the areas of the blisters that Respondent cut out cannot be addressed.

With regard to the price differential between ER1 and ER2, the testimony was that the differential is based upon two things: (1) quoting a different product and (2) product price increase due to inflation.

Complainant is entitled to the same product quality used in the deficient work. In this case, Respondent used Tucson Rubberized Acrylic Coating (TRAC). While it is true that TRAC comes with a 12 year warranty, this was the product Complainant originally contracted for and was originally applied. The fact that TRAC comes with a 12 year warranty is but a collateral fact and not the basis for awarding Complainant that portion of the estimate. The Tribunal agrees that Complainant is not entitled to compensation for the warranty alone.

The issue then becomes how much of ER2 is due to quoting a different product versus inflation. While neither estimate is line itemized, the “description” remains unchanged but for the change in product type. Therefore, it is reasonable to infer that the difference in the estimate amounts is due to the price differential between the products and a minimal amount would be due to inflation over the last six months.

Complainant has met his burden in establishing that the recommended payout from the Fund is too low. Complainant has met his burden in establishing that the second portion of the estimate is necessary to make Complainant whole.

Respondent failed to identify why the proposed payout was inappropriately high.

Therefore, after review of all the evidence, the Tribunal concludes that the award provided by the Fund failed to accurately reflect Complainant’s actual damages. The evidence of record supports an award to Complainant in the amount of $15,600.00 all of which shall be chargeable against Respondent and persons on the license as set forth in Ariz. Rev. Stat. § 32-1139(B).

Accordingly, Complainant is entitled to a payout from the Fund in the amount of $15,600.00.

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, March 4, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Matthew Joseph Mesker

DBA: Go Pro Property Services

1042 N. Higley Rd., Ste. 102-186

Mesa, AZ 85205

[email redacted]

Fabrizio Frank Di Marco

6119 E Montgomery Rd

Cave Creek, AZ 85331

[email redacted]

Mona Baskin

[email redacted]

By: OAH Staff