ALJDEC decisions subject to certification as final

2010A-308473097-ROC · Registrar of Contractors · 2010-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 7, 2010

APPEARANCES: Complainant Denise Aviles appeared on her own behalf, accompanied by her husband Glenn Crespo; Respondent was represented by attorney Gene Stratford, accompanied by LLC Member Brandon Holtzman. ROC Inspector Mark Alyea also appeared.

WITNESSES: Denise Aviles Glenn Crespo Brandon Holtzman Jose Maciel, Supervisor for Respondent

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging poor workmanship and failure to comply with an order for corrective work on a shower remodel/repair job done by Respondent. Respondent is willing to make corrections to the work if Complainant gives access to the property. Respondent denies that it was given an opportunity to comply with the order for corrective work. At the start of the hearing, the parties agreed to release witness ROC Inspector Mark Alyea without taking his testimony because Respondent was not challenging his workmanship conclusions. The parties and other witnesses then testified about issues, addressed below, concerning (1) a reimbursement request by Complainant, (2) access for corrective work, and (3) Respondent’s compliance with a contractual term of the parties’ agreement. With regard to issue (1) concerning a reimbursement request, Respondent moved at the start of the hearing to dismiss the issue because the Registrar of Contractors had closed that issue with an administrative dismissal and Complainant did not request a hearing to challenge it. Complainant objected. The motion was taken under advisement for ruling as part of this Administrative Law Judge Decision. A ruling is made below. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with marked Exhibit A, a quote submitted by Complainant at the hearing. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision dismissing issue (1) and allowing Respondent an opportunity to close the case by performing corrective work on issues (2) and (3). FINDINGS OF FACT 1. Respondent Holtzman Home Improvement LLC is the holder of license B-3.242008-R, a general residential remodeling and repair contractor’s license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to perform remodeling and repair for residential properties, with the exception of certain specialty work. Brandon Holtzman is Respondent’s Qualifying Party. 2. In September 2009, the parties entered into a contract for remodeling of a shower in a house owned by Complainant and rented out to others. Respondent performed the work. Tenants lived in the house and Complainant lived in another state. Complainant did not return to Arizona until May 2010. 3. In May 2010, Complainant contacted Respondent to perform corrections to the shower remodel and also to assess a pipe leak behind a block wall where an outdoor spigot was located. Complainant was not happy with the outcome of Respondent’s work on those items and filed two complaint forms with the ROC on May 14, 2010. One of the complaint forms addressed the shower remodel work (hereinafter “the 3097 complaint”) and the other the outdoor spigot (hereinafter “the 3103 complaint”).[1] 4. For the 3097 complaint, the ROC set a jobsite inspection for a date in June 2010. For the 3103 complaint, the ROC sent Complainant a letter on June 18, 2010 closing the complaint without further action.[2] That letter advised Complainant that she could request further review of the complaint in writing. If a written request for further review was not received within 10 days, the letter informed her, the complaint would be dismissed. 5. Complainant did not file a written request for further review of the 3103 complaint. On June 25, 2010, she filed a request for hearing, noting specifically that it was in relation to the 3097 complaint. Her hearing request did not mention the 3103 complaint. Thus, it was reasonable for Respondent to believe that the 3103 complaint had been dismissed without challenge. 6. On June 17, 2010, the ROC issued a Corrective Work Order (“CWO”) that ordered Respondent to correct a number of aspects of the shower remodel work.[3] Within a week of that CWO (June 25, 2010), Complainant sent a letter requesting a hearing and stating that she wanted others to do the repairs and she would not let Respondent in the house. Thus, with regard to hearing issue (2), Respondent was not given access to comply with the CWO. 7. With regard to hearing issue (3) concerning the shower door, the parties agreed that the agreement between them called for a Kohler brand frameless door, that Respondent did not install that type of door, and that the particular Kohler door agreed to is no longer made. They agree that an equivalent door should be installed, but they do not agree as to what is an equivalent door. 8. Complainant testified that she went to a home improvement store and spoke to a clerk to find an equivalent shower door. Complainant submitted a written quote from the store (Exhibit A) at the hearing. However, the quote appears to be for a “shower enclosure” and not the door only. It is not clear whether the door can be sold and installed without the enclosure. Therefore, Complainant’s evidence is not adequate. 9. Brandon Holtzman testified that Respondent is ready and willing to have a door custom made that will be equivalent to the Kohler door, and even of better quality. He described the details of the door on the record. 10. The greater weight of the evidence supports a finding that Respondent’s proposed custom-made door will meet the intent of the agreement between the parties. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[6] Complainant has met that burden in part. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2), (A)(23), (A)(3) by way of ROC Rule R4-9- 108, and (A)(13) by way of A.R.S. § 32-1158. Subsection (A)(2) requires contractors to build according to plans, specifications, and building codes. Subsection (A)(23) prohibits failure to comply with an ROC Corrective Work Order. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108, which prohibits poor workmanship. Subsection (A)(13) prohibits violating any ROC statute, namely 32-1158 which requires minimum elements in a contract between a contractor and an owner. 3. The evidence shows Respondent’s failure to follow the specifications for the shower door and poor workmanship with regard to the items identified in the CWO. These actions are violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2) and (A)(3) by way of ROC Rule R4- 9-108. 4. The evidence does not show a violation of A.R.S. § 32-1154(A)(23) because Respondent was not given access to comply with that order.[7] 5. With regard to the 3103 complaint, the record shows that Complainant did not request further review after that complaint was dismissed. Therefore, the dismissal should be affirmed. 6. A review of current ROC records shows that Respondent’s license is current and active and in good standing. Therefore, the proper remedy in this matter is for Respondent to complete the corrections noted in the CWO as agreed at the hearing (items 1 through 9). The shower door proposed by Respondent should be installed as well under CWO item 3. If Respondent does not complete the work, its license should be suspended. RECOMMENDED ORDER IT IS RECOMMENDED that license B-3.242008-R, held by Holtzman Home Improvement, LLC, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof of correction of the work described in the June 17, 2010 CWO and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2010-[number redacted] shall be closed. IT IS FURTHER RECOMMENDED that the June 18, 2010 dismissal of complaint 2010 30847 3103 be affirmed.

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, December 22, 2010.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The complete numbers for those complaints are 2010 30847 3097 and 2010 30847 3103 respectively. [2] Although the letter does not say, testimony at the hearing revealed that the likely reason for the dismissal was that another contractor had repaired the 3103 item. See Arizona Revised Statutes (A.R.S.) § 32-1155(C) (no citation shall be issued for workmanship if the work has been modified by others). [3] That CWO corresponded with the items in the 3097 complaint. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [7] Whether there was a violation of the minimum elements of the contract provision was not argued by the parties at the hearing and is, therefore, not addressed herein.

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