ALJDEC decisions subject to certification as final

08F-H0319-ROC · Registrar of Contractors · 2009-05-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 11, 2009. APPEARANCES: N. Sue Gilk appeared telephonically. David Edward Heiselman-Hart, also known as David Edward Heiselman, appeared via videoconferencing. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order:

FINDINGS OF FACT 1. David Edward Heiselman-Hart, doing business as 3 D Remodeling (“Respondent”), is the holder of License No. 204790, a Class C-61 contracting license issued by the Registrar of Contractors (“Registrar”). David Edward Heiselman-Hart is also known as David Edward Heiselman. 2. N. Sue Gilk (“Complainant”) hired Respondent to perform remodeling work on her manufactured house located in Kingman, Arizona. 3. On or about February 8, 2008, Complainant filed a written Complaint with the Registrar alleging numerous items of deficient workmanship by Respondent. The Registrar designated the Complaint as Case No. H08- 0319. 4. After receiving the Complaint, the Registrar’s assigned inspector, Bill Redman, performed a jobsite inspection to view the Complaint items. 5. As a result of his jobsite inspection, Inspector Redman issued a Corrective Work Order dated March 24, 2008, which required Respondent to timely perform remedial work to the following items: 1) Plumbing a) Have a properly licensed plumber install the air break for the dishwasher. b) Determine the cause of the drainage problem with both kitchen sinks and repair as needed. c) Install access door for the bar sink in a good and workmanlike manner. d) Properly install the faucet on the bar sink. All plumbing repairs must be completed by a licensed plumber.

2) Counter tops a) The spacing of the lip around the bar sink must be even. Repair or replace the top as needed. b) The placement of the square piece of top left of the stove is within standard no [sic] action is required. c) Properly polish the counter top piece that was fabricated on side. Properly round the edges to match the rest of the counter tops. d) The counter top overhangs must extend to or slightly beyond cabinet hardware and be consistent along all tops.

3) Flooring a) – d) The wood flooring must be installed per manufactures [sic] requirements: gaps between pieces must meet manufacturer’s requirements both side to side and end to end. The height must be consistent and within manufacturer’s tolerance. The thresholds must be properly constructed i.e., should avoid steep inclines. All flooring must be properly installed and repaired as needed.

4) Cabinetry a) Properly repair the façade over the microwave to match the rest of the cabinets in a good and workmanlike manner. b) Same as a) above. c) Properly fill the nail holes in a good and workmanlike manner. d) The spice shelf must be built per proper industry standards. e) Properly repair the upper cabinet where the doors won’t open all the way due to the sloped ceiling. f) Have a properly licensed electrical contractor install lights under the cabinets per plans. g) Properly install the trim and toe kicks on the bathroom cabinets. h) Properly install the drawer pulls on the bathroom vanity. i) Properly install the drawer pulls on the entertainment center.

5) Electrical a) Have a properly licensed electrical contractor install the required outlets in the island cabinets. b) Have a properly licensed electrical contractor determine why the microwave is blowing fuses and repair by appropriate means. c) The light switch between the kitchen and dining room is within standards.

6) Doors a) The laundry room door is interfering with the return air for the HVAC system. Determine the proper way to repair and do by appropriate methods. b) Remove the glass French door and reinstall in appropriate frame in a workmanlike manner. c) Sliding glass door: must be low “E” as stated in the agreement, all latches must be in working order, remove the complete frame and install proper size header and reinstall and remove the security bar.

7) Tape and Texture Properly tape and texture the drywall seams. Texture and paint color to match the existing as close as possible.

The addendum appears to be a contractual issue and not part of this inspector’s preview [sic].

6. The Registrar issued a Citation and Complaint in Case No. H08-0319 alleging violations by Respondent of A.R.S. § 32-1154(A) (7), (23), and (3), namely A.A.C. R4-9-108. 7. The Registrar forwarded Case No. H08-0319 to the Office of Administrative Hearings, an independent agency, for formal hearing. 8. Inspector Redman performed a prehearing jobsite inspection on May 8, 2009. At the hearing, Inspector Redman credibly testified that the electrical work required to be performed pursuant to the Corrective Work Order had been properly accomplished. 9. With the exception of the electrical work ordered to be performed, the evidence established that Respondent failed to perform the balance of the required remedial repairs set forth in the Corrective Work Order. 10. Respondent’s failure to timely comply with the Registrar’s Corrective Work Order to bring his work within minimum workmanship standards is a wrongful act that substantially injured Complainant. 11. A review of the Registrar’s official records reveals that Respondent’s license was suspended by operation of law for nonrenewal on April 1, 2009. As a result of that suspension, Respondent is prohibited from performing any contracting work, including the required remedial work in this case, unless and until Respondent renews his contracting license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license by operation of law does not deprive the Registrar of authority to impose disciplinary action upon that license for proven violations in this matter. 2. Respondent violated the provision of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint issued by the Registrar. Respondent failed to timely comply with the Registrar’s written directive to remediate his deficient workmanship. 3. Respondent violated the provision of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar by failing to perform its work in a professional and workmanlike manner. 4. Respondent violated the provision of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. Respondent’s failure to comply with the Registrar’s written directive to timely remediate his deficient workmanship substantially injured Complainant. RECOMMENDED ORDER Respondent’s License No. 204790 shall be revoked on the effective date of the Order entered in Case No. H08-0319. If Respondent renews his contracting license and then complies with the Corrective Work Order on or before the effective date of the Order entered in Case No. H08-0319, then the above-provided license revocation shall not take place and the Citation and Complaint in Case No. H08-0319 shall be closed. In addition to the above-provided alternative disciplinary penalties, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in Case No. H08-0319 shall result in the automatic revocation of Respondent’s contracting 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) (5), unless payment of any outstanding prior civil penalty is tendered. 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 40 days from the date of that certification.

Done this day, June 1, 2009

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826