ALJDEC decisions subject to certification as final

2015A-145-ROC · Registrar of Contractors · 2016-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 17, 2015 APPEARANCES: Complainant Sharen Faye Owens appeared on her own behalf. Respondent Bizjak Construction, Inc. was represented by Jason Clark. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. 131881 to Bizjak Construction, Inc. (“Respondent”). On or about September 28, 2013, Precision Kitchens LLC (“Precision”) recommended that Respondent contact Complainant Sharen Faye Owens (“Complainant”) regarding her kitchen remodel project. Precision was already working on the project. On or about October 14, 2013, Respondent provided an estimate to Complainant for work at her home including the demo of kitchen cabinets, tops, sink, appliances, pantry closet walls, coat closet walls, and popcorn ceiling and to install 2 new sink valves, relocate 2 HVAC vents, relocate electric as needed, install new circuits and lights, and reconnect sink, faucet, disposal, dishwasher, range, and microwave. The total cost of the project was estimated to cost $4,646.25. Respondent began working on the project and completed work on or about December 5, 2013. At some point, Complainant filed a complaint against Precision as to various issues with the work it performed. On or about January 14, 2015, Complainant filed a complaint with the Registrar against Respondent alleging that Respondent did not pull a permit, did not have inspections done by the City of Glendale, minimal repair by the electrical subcontractor after the Registrar’s initial inspection, only five under cabinets lights were installed when six were included on the proposal, and the demo of the popcorn ceiling in the kitchen/dining area was “done poorly.” Complainant asserted that “[s]tructural cracking is occurring.” The Registrar assigned the Complaint to its investigator, Timothy Pennington, for investigation. The Directive from the Registrar issued on February 4, 2015, indicated that Respondent was directed to remedy the following violations by appropriate means: demo of popcorn ceiling, inspections not called in, and permit not incompliance with the City of Glendale. Investigator Pennington did not believe the hairline crack in the ceiling was a structural defect. On or about February 17, 2015, Schembri Engineers inspected Complainant’s home to determine if the hairline crack in the ceiling was the result of a structural defect. Schembri Engineers concluded that the hairline crack “can be considered normal” and recommended that the crack “be repaired cosmetically as agreed between the owner and contractor.” Exhibit 2 at p. 8. On or about February 20, 2015, Respondent sent to the Registrar a letter documenting Respondent’s compliance with the directive. In the letter, Respondent stated that on February 19, 2015, Respondent “put fiberglass drywall tape on the hairline crack and retextured the wall to match existing texturing” and Respondent “extended the acoustic ceiling texture over the cracked area as requested by” Complainant. Respondent also stated that it had arranged for inspections to be completed by the City of Glendale, and that Lehr Electric LLC had performed all necessary electrical work requested by the City of Glendale. On or about March 9, 2015, Investigator Pennington performed a compliance inspection. At that time, Investigator Pennington noted that the hairline crack on the ceiling had been corrected, but the color of the new popcorn ceiling did not match the existing popcorn ceiling. Investigator Pennington determined that the City of Glendale permit was present and had a “green tag.” Complainant also pointed out damage to her wallpaper in the dining room that she alleged Respondent had done during the repairs, but Investigator Pennington was unable to determine who damaged the wallpaper. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2); A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22). At hearing, Investigator Pennington testified as to the Registrar’s workmanship standards. Investigator Pennington acknowledged that the possible deficiency in gypsum wall board of “[v]isible conditions such as nail pops, crack and seam lines due to expansion and contraction of structure” had an acceptable tolerance of “[n]ormal conditions such as hairline cracks where drywall meets a dissimilar material should be considered acceptable and can be readily corrected by homeowner” and identifies the contractor’s responsibility as “[c]ontractor should repair nail pops, seam lines and other hairline cracks one time within first year of occupancy.” As to the possible deficiency in painting of “[p]ainting required as corollary repair because of other work does not match surrounding paint” had an acceptable tolerance of “[p]aint should match surrounding areas as closely as possible” and identifies the contractor’s responsibility as “[c]ontractor should refinish to match surrounding areas as closely as possible.” At hearing, Complainant testified that she did not know until days before the hearing that Respondent was a general contractor and should have been considered the general contractor on the job and pulled the permits. Complainant stated that she was under the impression that Precision was the general contractor and that she did not know that a permit was required. Complainant maintained that when Respondent completed the corrective work on the ceiling crack, she gave him the paint clearly marked “ceiling paint” and that he refused to use that paint. Complainant denied that she requested Respondent extend the popcorn ceiling over the crack during the repairs. Complainant was insistent that Respondent damaged her custom wallpaper and indicated she would file a new complaint as to that issue. At hearing, James Bizjak, Respondent’s owner and Qualifying Party, testified that he considered Respondent to be a subcontractor on the job because Precision was acting as the general contractor. As such, Mr. Bizjak believed that, if a permit was required, Precision would have pulled the permit. Mr. Bizjak indicated that pulling a permit is ultimately the homeowner’s responsibility. Mr. Bizjak testified that there was not a crack in the ceiling when he completed the project on December 5, 2013. Mr. Bizjak testified that Complainant directed him to extend the popcorn ceiling over the repaired crack and into the threshold. Mr. Bizjak said he did not like to do that because it is difficult to match the popcorn ceiling to the existing ceiling. Mr. Bizjak acknowledged that the paint did not appear to match right after painting because the paint was wet and he told Complainant to wait until the paint was dry. When Mr. Bizjak returned for the City of Glendale inspections, Complainant did not indicate any problem with the paint color and did not ask him to repaint it. Mr. Bizjak testified he is willing and able to repaint the area. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 5, 2016. Such prior License record reflects that Respondent’s license number 147367 is current with one open complaint. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 5, 2016. Such prior License record reflects that Respondent’s License No. 147367 is current and was suspended for non-renewal from August 1, 2005, through August 23, 2005; from August 1, 2011, through August 7, 2011; from August 1, 2013, through September 25, 2013; and from August 1, 2013, through September 18, 2015. Such prior License record also reflects that is one open complaint against Respondent’s license. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 6, 2016. Such prior License record reflects that Respondent’s License No. 131881 is current, and was previously suspended for lack of bond from July 13, 2008, through August 1, 2008; April 20, 2006, through July 18, 2006; March 2, 2002, through March 4, 2002; and March 2, 2000, through March 30, 2000; and for lack of renewal from March 1, 2002, through March 13, 2002. Such prior License record also reflects no prior complaints against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. 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 Vazanno 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). 3. The evidence at hearing established that there was a great deal of confusion on the jobsite as to who was the general contractor and who was the subcontractor. Complainant’s own understanding was that Precision was the general contractor while Respondent was the subcontractor. Nothing in the evidence established that it was Respondent’s obligation to obtain a permit. Rather the evidence presented established that it is ultimately the homeowner’s responsibility to ensure that a permit is obtained. Furthermore, at the time of the hearing, the project was completed and was “green tagged,” indicating the failure to pull a permit earlier was not prejudicial to Complainant. As such, Complainant failed to establish that Respondent acted in violation of A.R.S. § 32-1154(A)(2).[1] 4. The evidence at hearing established that the hairline crack was not present in December 2013 and Complainant did not file a complaint regarding the hairline crack in the ceiling until more than one year after Respondent completed the project. Given the Registrar’s standards identified previously that such cracks are normal and that the contractor should repair within one year of occupancy, the crack cannot be considered a violation of the Registrar’s workmanship standards. Therefore, Complainant failed to establish that Respondent did not complete perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32- 1154(A)(3).[2] 5. Respondent’s attempt to repair the hairline crack in conformity with Complainant’s direction resulted in popcorn ceiling being added and paint that did not match the existing popcorn ceiling. Because Respondent’s attempt to correct the hairline crack was directed by Complainant as to extending the popcorn ceiling and which paint to use, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(22).[3] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Sharen Faye Owens. 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, January 7, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

[d]eparture from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

Emphasis added. [2] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [3] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

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