ALJDEC - Licensing

2025A-01566-CHC-ROC · Registrar of Contractors · 2025-11-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James Foley,

COMPLAINANT

v.

Maccarone Homes LLC,

License No. ROC 164772,

RESPONDENT

No. 2025A-01566-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 16, 2025

APPEARANCES: Complainant James Foley appeared on his own behalf. Lawrence J. Felder Esq. appeared on behalf of Respondent Maccarone Homes LLC. Investigator John Smith appeared on behalf of the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Respondent’s Exhibit 1 was admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

Maccarone Homes LLC (Respondent) is the holder of License No. 164772 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 1, 2022, Complainant hired Respondent to build a single-family residence in Oro Valley, Arizona.

On or about February 13, 2025, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator John Smith. The jobsite inspection was performed on March 27, 2025.

Investigator Smith then issued a Written Directive on or about March 31, 2025, which provided in pertinent part 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 Monday, April 28, 2025.

Complaint Item 1: “I filed an informal complaint and the AROC determined my roof wasn't completed to industry standards and requested it get replaced. It's not fixed.”

Investigator’s Observations: Verified.

General Notes:

• The roof was not accessed during this inspection.

• The roof was not photographed during this inspection.

• Both parties acknowledged the roof is in the same condition today, as it was during the 6/21/2024 ROC jobsite inspection.

Investigator’s 6/21/2024 Observations:

• The roofing material is raised/peaking in areas throughout the roof.

• This is considered to be widespread.

• As stated in the Arizona Workmanship Standards, If the condition is widespread, roof should be replaced.

• The areas of peaking are consistent with seams in the roof sheathing.

• The roof subcontractor (Israel Sr. and Israel Jr. of Bob’s Custom Roofing Inc) on site (During the 6/21/2024 ROC inspection) acknowledged the roof sheathing was swelled and peaking prior to installing the roofing material.

Published as Substantive Policy Statement 2017.01 by the Arizona Registrar of Contractors

Quoted from Substantive Policy Statement 2017.01

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."

Source: Deebv. Check s Epoxy , No. 2014A-3258 (ALJ Decision at 11:11- 19).

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.

Complaint Item 3: “Roof not to industry standard. It's bubbling at every seam. AROC said replace”

Investigator’s Observations: Verified.

General Notes:

• The roof was not accessed during this inspection.

• The roof was not photographed during this inspection.

• Both parties acknowledged the roof is in the same condition today, as it was during the 6/21/2024 ROC jobsite inspection.

Investigator’s 6/21/2024 Observations:

• The roofing material is raised/peaking in areas throughout the roof.

• This is considered to be widespread.

• As stated in the Arizona Workmanship Standards, If the condition is widespread, roof should be replaced.

• The areas of peaking are consistent with seams in the roof sheathing.

• The roof subcontractor (Israel Sr. and Israel Jr. of Bob’s Custom Roofing Inc) on site (During the 6/21/2024 ROC inspection) acknowledged the roof sheathing was swelled and peaking prior to installing the roofing material.

Published as Substantive Policy Statement 2017.01 by the Arizona Registrar of Contractors

Quoted from Substantive Policy Statement 2017.01

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."

Source: Deebv. Check s Epoxy , No. 2014A-3258 (ALJ Decision at 11:11- 19).

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.

ADDITIONAL VIOLATIONS

In addition to the allegations in the complaint, the following violations were verified:

Elements of a Contract

Investigator’s Observations: The respondent’s contract is missing the following information:

• An estimated date of completion

o The contract includes:

 A. The date of commencement of the work shall be upon the receipt of signed Agreement, payment of retainer and issuance of the building permit, obtained by Builder.

 B. Builder shall make all submittals and perform all construction in a timely manner.

 C. The Builder shall achieve Substantial Completion of the entire Project Twelve (12) months from the date the building permit issued. Substantial Completion is reached when the Certificate of Occupancy (CO) permit is issued, or at final inspection, whichever occurs first.

o The contract does not include:

 Any indication of when a building application will be submitted or approved.

 An estimated date of Final Completion.

• The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

• The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

o The contract specifies the first two progress payments only.

• Information about the customer’s right to file a complaint with the registrar

• Contact information for the registrar

• A signature of the contractor

Governing Rule: A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract.

Any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information:

1: The name of the contractor and the contractor's business address and license number.

2: The name and mailing address of the owner and the jobsite address or legal description.

3: The date the parties entered into the contract.

4: The estimated date of completion of all work to be performed under the contract.

5: A description of the work to be performed under the contract.

6: The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

7: The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

8: The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9a: That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A.

9b: The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1162, subsection A.

9c: The information in this paragraph must be prominently displayed in the contract in at least ten- point bold type...

9d: ...and the contract shall be signed by the property owner and the contractor or the contractor’s designated representative.

This paragraph does not apply to a person who is subject to and complies with section 12-1365.

REQUIRED CORRECTIVE ACTION: The respondent is to submit a contract form (for use on future projects) that complies with A.R.S. § 32-1158

. . .

A compliance jobsite inspection was performed on June 26, 2025. In his notes regarding the same Investigator Smith found the following in pertinent part:

Compliance Findings: The respondent has not taken appropriate corrective action to comply with the Directive.

Governing Rule: A.R.S. § 32-1154(A)(22): Failure to take appropriate corrective action to comply with this chapter or with the rules adopted pursuant to this chapter...

Complaint Item 1: “I filed an informal complaint and the AROC determined my roof wasn't completed to

industry standards and requested it get replaced. It's not fixed.”

...

Compliance Inspection Findings for this item:

This has not been resolved.

Investigator’s 6/26/2025 Observations:

Corrective work has been performed.

During this inspection, no obvious peaking was observed.

However;

• During the ROC inspection on 6/21/2024, there was raised/peaking areas throughout the roof.

• During the ROC inspection on 6/21/2024, the respondent’s subcontractor stated the sheathing was swelled and peaking prior to installing the roofing material.

• During the 3/27/2025 ROC inspection, the respondent, Mr. Maccarone, confirmed that all conditions observed 6/21/2024 were still present.

• A Directive was issued requiring the respondent to correct by appropriate means.

• After completing the corrective work, the respondent stated the work is complete, further stating there is no peaking on the roof.

• Prior to this Compliance Inspection, the respondent was asked by the complainant, to explain how the roof sheathing was corrected.

• Prior to this Compliance Inspection, the respondent was asked by the ROC Investigator, to explain how the roof sheathing was corrected.

• As of 6/26/2025, the respondent has not provided an explanation of how the roof sheathing was corrected.

Importance of knowing how the roof sheathing was corrected:

• Replacement of roof sheathing requires a permit from the local building authorities.

o No permit was obtained.

• Sanding or grinding the surface of sheathing is only permissible if allowed per the manufacturer’s instructions.

o No manufacturer information has been provided.

o No manufacturer instructions have been provided.

Complaint Item 3: “Roof not to industry standard. It's bubbling at every seam. AROC said replace”

Investigator’s Observations from the initial inspection 3/27/25: Verified.

. . .

Compliance Inspection Findings for this item:

This has not been resolved.

Investigator’s 6/26/2025 Observations:

Corrective work has been performed.

During this inspection, no obvious peaking was observed.

However;

• During the ROC inspection on 6/21/2024, there was raised/peaking areas throughout the roof.

• During the ROC inspection on 6/21/2024, the respondent’s subcontractor stated the sheathing was swelled and peaking prior to installing the roofing material.

• During the 3/27/2025 ROC inspection, the respondent, Mr. Maccarone, confirmed that all conditions observed 6/21/2024 were still present.

• A Directive was issued requiring the respondent to correct by appropriate means.

• After completing the corrective work, the respondent stated the work is complete, further stating there is no peaking on the roof.

• Prior to this Compliance Inspection, the respondent was asked by the complainant, to explain how the roof sheathing was corrected.

• Prior to this Compliance Inspection, the respondent was asked by the ROC Investigator, to explain how the roof sheathing was corrected.

• As of 6/26/2025, the respondent has not provided an explanation of how the roof sheathing was corrected.

Importance of knowing how the roof sheathing was corrected:

• Replacement of roof sheathing requires a permit from the local building authorities.

o No permit was obtained.

• Sanding or grinding the surface of sheathing is only permissible if allowed per the manufacturer’s instructions.

o No manufacturer information has been provided.

o No manufacturer instructions have been provided.

ADDITIONAL VIOLATIONS

In addition to the allegations in the complaint, the following violations were verified:

As stated on the Directive:

The respondent is to submit a contract form (for use on future projects) that complies with A.R.S. § 32-1158

Compliance Inspection Findings for this item:

This has not been resolved.

The respondent has made no effort to comply with this requirement.. . .

On June 27, 2025, 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) – A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about June 30, 2025, Respondent submitted an Answer to the Registrar.

On or about July 17, 2025, a Notice of Hearing was issued setting a hearing on August 29, 2025, at the Office of Administrative Hearings, an independent state agency. After a continuance, the hearing was held on October 16 2025.

At hearing, Investigator Smith testified as to the Registrar’s involvement and the above timeline and findings.

Investigator Smith testified that prior to the Complaint being filed, the parties participated in a Builder Confidence Program inspection where the roof was inspected and found to have the issues as described above. When the roof was not satisfactorily completed, Complainant filed this Complaint.

Investigator Smith testified that while corrective work was completed, Respondent failed to provide him with a complete description of what was done to correct the same, and thus he moved forward with a citation.

As to the contract issue, Investigator Smith testified that the sample contract still did not provide a space for the total price as “cost-plus contracts” were not allowed under the Arizona Revised Statutes.

Complainant testified that there were only two ways to repair the roof and that Mr. Maccarone would not tell him or show him how the roof was repaired and he still lacked proof that the roof was 100% correct.

Mr. Maccarone testified that he had been licensed since 2001 and that this was his only complaint.

Mr. Maccarone testified further that once the roof was framed it rained the next day and that he was concerned about the moisture in the wood. However, the moisture level was checked by the roofing contractor and it was determined to be 9.6%, which was lower than the 10% threshold, so they proceeded with finishing the roof.

Next, Mr. Maccarone testified that once the Directive was issued, the necessary repairs were made to correct the issues. In addition, he testified that he emailed Investigator Smith on May 23, 2025, informing Investigator Smith of the corrective actions which were used to repair the roof, such as stripping the roof down to the plywood and checking a seams and correcting the gapping issue. Further, Mr. Maccarone testified that when Investigator Smith emailed him again a few days later, Mr. Maccarone timely replied.

Robert Mackley was a principal in M B Constructors LLC, who oversaw the construction of the work and hire the subcontractors to construct and repair the same.

As to the corrective work performed, Mr. Mackley testified that every bay in the plywood was checked and made some corrective grooves to make sure there was the proper one-eighth inch gap. Mr. Mackley testified there was no sanding or grinding performed in the corrective work, and as such no permit was required.

Mr. Mackley also testified that he walked the entire roof and found that there was no give this the roof was sturdy and now corrected.

Finally, Mr. Mackley testified that since the corrective work, he had not been called back out to the jobsite to make any repairs.

Administrative notice was taken of Respondent’s prior License record on November 3, 2025. Such prior License record reflected that Respondent’s License No. 164772 was first issued on June 7, 2001 and reflected that there was one open case, namely the present case.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The preponderance of the evidence established that there was a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), as there was peaking in the roofing material at the seams. However, a preponderance of the evidence did not demonstrate that the roof was now not properly repaired per the Written Directive. While the tribunal does not have a copy of the May 23 and 27, 2025 emails from Mr. Maccarone to Investigator Smith, the tribunal has no reason to doubt Mr. Maccarone’s testimony. Further, Mr. Maccarone’s testimony mirrored his response to the citation. Therefore, the tribunal finds no violation of A.R.S. § 32-1154(A)(22), for the roof repairs.

The preponderance of the evidence established that while Respondent provided a valid sample contract, it did not comply with the requirement to list a total dollar amount. Thus, the tribunal finds Respondent in violation of A.R.S. § 32-1154(A)(12) – A.R.S. § 32-1158, and a violation of A.R.S. § 32-1154(A)(22) for failure to properly correct the same.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall not suspend Respondent’s License No. 164772 for violation of the contract item, rather, it is recommended that the Registrar require Respondent to pay the sum of $100.00 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 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 Respondent be ordered to provide the Registrar with a proper sample contract which complies with A.R.S. § 32-1158.

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, November 3, 2025.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Lawrence J. Felder, Esq.

Resolvere Law PLLC

[email redacted]

[email redacted]

James Foley

[email redacted]

By: OAH Staff