ALJDEC decisions subject to certification as final

2017A-2294-CHC-ROC · Registrar of Contractors · 2017-09-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joseph Mosca,

COMPLAINANT,

v.

Denix Construction LLC ,

License No: 281558

RESPONDENT.

No. 2017A-2294-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 23, 2017, at 1:00 PM

APPEARANCES: Joseph Mosca (“Complainant”); Virginia Rini (“Ms. Rini” witness for Complainant); Mark Ptashkin (“Mr Ptashkin” City of Glendale non-party witness for Complainant); Jim Gruber (“Mr. Gruber” counsel for City of Glendale non-party witness); Christopher Horvath (“Respondent” for Denix Construction, LLC); Jeno Horvath (“Mr. Horvath” witness1 for Denix Construction, LLC); Susie Horvath (“Ms. Horvath” witness2 for Denis Construction, LLC); John G. Sestak, Jr. (“Mr. Sestak” Attorney for Respondent); and Russell Reed (“Investigator Reed” for Registrar of Contractors (“Registrar” or “ROC”).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar. The Arizona Rules of Evidence do not apply in these proceedings, therefore any relevant testimony and evidence may be admitted. Respondent entered Exhibits labeled R1 through R5, with Complainant reserving his right to object during the proceeding to any exhibit that may be deemed irrelevant. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

Complainant is the owner/occupant of a residence located at 5484 West Quail Avenue, Glendale, Arizona 85308.

Respondent is the holder of Arizona Contractor License Nos. CR61.281558-D issued by the Registrar. On May 5, 2017, Respondent’s License is current.

On or about May 2, 2017, Complainant submitted his Complaint with the Registrar alleging against Respondent fifteen (15) complained of items to include poor workmanship issues.

No written contract was provided. Complainant provided an estimate dated 10/19/2015 for various items to be renovated tilted Estimate 1733, for a total of $24,323.75. Activities listed on the estimate were: paint exterior, install flooring, baseboards, framing (new wall and arch), drywall install, kitchen cabinets (rework), paint cabinets, install handles and knobs, electrical items (move switches and outlets on wall as needed), install appliances, install double door (office), stucco repair, 12 doors and trim, dock (remove dock planks and reattach ledger board, replace joist hangers, if needed and drill out board screws), framing (framing rafters repair from a/c repair and give letter from us saying it is repaired you may have reinspected or we can pictures to inspector), refinish tables (refinish dock), and change order (any change orders will require the approval of client.

Complainant provided various invoices detailing the billed scope of work as:

Date Invoice No. Total

10/22/2015 1495 $ 13,786.67

12/17/2015 1516 $ 6,792.17

12/28/2015 1520 $ 1,868.91

01/08/2016 1524 $ 3,800.00

03/03/2016 1570 $ 110.00

Total invoices provided is $26,357.75.

Complainant provided on his Complaint date work started in September 2015, and concluded on April 3, 2016. Complainant provided the following payment receipts and credit card payments payable to Denix Construction, LLC, as follows:

Date Check No. Amount Description

10/22/2015 3108 $1,000.00 advance doors & cabinets

12/09/2015 3121 $2,500.00 advance

12/22/2015 3123 $1,561.60 renovations

01/04/2016 3121 $2,163.00 half tile

01/08/2016 3125 $3,000.00 progress payment

01/15/2016 3128 $2,000.00 progress payment

01/20/2016 3129 $5,000.00 progress payment

03/03/2016 3139 $1,419.00 Invoice No. 1543

Additional payment provided with the complaint to be made as

10/31/2015 Citibank $6,001.56 Billing Period 10/3/15 to 11/3/15

11/09/2016 Citibank $1,554.63 Billing Period 11/4/15 to 12/2/15

Complainant provided on his Complaint the total amount paid to Denix Construction, LLC is $26,199.79.

In addition, Complainant provided copies of an action Respondent filed against Complainant in the Justice Court, the complaint stated there was an outstanding balance owing of $3,172.77.

Investigator Reed was assigned to investigate the fifteen (15) item Complaint, and performed a Jobsite Inspection on May 18, 2017. Respondent was at the home the day of the inspection but was not permitted in the home. Investigator Reed substantiated ten (10) of the alleged fifteen (15) violations; however, Complaint Item 11 was noted by Investigator Reed as defective and in need of a permit but no governing rule was cited, and Complaint Item 15 could not be substantiated without further inspection, so both are included as follows:

Complaint Item 1: Roof truss repaired improperly without building permit or inspection.

Investigator’s Observation: The repairs to the roof trusses in the attic will have to be inspected by a city official after a permit is obtained. Roof trusses were modified to remove and install a new air handler in the attic.

Governing Rule: Code: Permits required for structural repairs.

Complaint Item 2: Gas fireplace installation incomplete and without building permit or inspection.

Investigator’s Observation: At the time of the inspection the gas fireplace was installed and completed. A permit was not obtained for the modification of the exterior wall.

Governing Rule: Code: Permits required for structural repairs and modifications.

Complaint Item 3: Dryer vent box, dryer vent and gas dryer installed incorrectly and without building permit or inspection.

Investigator’s Observation: A building permit nor inspection is required to install a vent box on a wall. The vent box was not installed at the time of the inspection.

Governing Rule: Workmanship Rule §32-1154(A)(3).

Complaint Item 4: Floor tile installed poorly, floor leveled improperly, groutlines not straight or even, haze not removed.

Investigator’s Observation: There is a section of the tile in the master bathroom with inconsistent grout lines. The floor appeared to be leveled. There is a haze on some sections of the tile mainly near walls.

Governing Rule: Workmanship Rule §32-1154(A)(3).

Complaint Item 5: Painting missed spots, did not complete.

Investigator’s Observation: The inside of the pantry door was missing paint, some other small areas throughout the home need to be touched up as well.

Governing Rule: Workmanship Rule §32-1154(A)(3).

Complaint Item 6: Molding nail holes not filled nor sanded prior to paint.

Investigator’s Observation: Some door trim pieces have nail holes that were not filled prior to paint, however, I am not certain as to which pieces were installed by the contractor as he was not allowed in the home during the inspection.

Governing Rule: Workmanship Rule §32-1154(A)(3).

Complaint Item 8: Cabinet assembly and installation defective.

Investigator’s Observation: Cabinet doors and drawers need to be adjusted to be level and flush with each other. Other items that were brought up about the cabinets meet the workmanship standard.

Governing Rule: Workmanship Rule §32-1154(A)(3).

Complaint Item 10: Kitchen island outlet defective

Investigator’s Observation: The outlet has power and works however the top part of the outlet is tilted back and does not allow items to be plugged in all the way before cathing on the face plate cover.

Governing Rule: Workmanship Rule §32-1154(A)(3).

Complaint Item 11: Kitchen counter electric outlets installed without GCI, Major electrical work without building permits

Investigator’s Observation: I did observe one GFCI outlet which is standard for kitchen outlets all to be linked to one GFCI outlet. Upon obtaining a permit this item will be inspected by a building official and will not be passed if it does not meet building Code.

Governing Rule: N/A: N/A

Complaint Item 12: Master bath lights mis located and mis-installed.

Investigator’s Observation: Lights are installed center over the sink faucets, there is an area under each light that needs drywall texture repaired.

Governing Rule: Workmanship Rule §32-1154(A)(3).

Complaint Item 14: Defective and incomplete dishwasher installation

Investigator’s Observation: Kickplate at the bottom of the dishwasher was not installed.

Governing Rule: Workmanship Rule §32-1154(A)(3).

Complaint Item 15: Defective microwave and exhaust venting installation.

Investigator’s Observation: Complainant states that when cooking, the exhaust allows the smell to be transferred to the bedroom on the opposite side of the wall. This item would have to be inspected by a building official.

Governing Rule: N/A: N/A

In comparison to Respondent’s Invoices, it appears the following items were billed on Invoice No. 1516 dated 12/17/2015: appliances: microhood install and move vent; fireplace vent stacks; electrical and lighting outlet island; and Invoice No. 1498 dated 10/22/2015 for framing rafters repair and fireplace framing.

Following Investigator Reed’s inspection, a Directive was issued on May 22, 2017, setting forth violations to be remedied no later than June 12, 2017. Violations to be remedied by appropriate means were: obtain proper building permit through the local jurisdiction and pass all required inspections; dryer vent box not installed in laundry room; tile floor in master bedroom has inconsistent grout lines; “haze” appears on tiles in areas; paint is missing in some areas; door trim that was installed has nail holes that were not filled in; cabinet doors and drawers are not flush with each other; kitchen island outlet is crooked; master bathroom drywall texture under light fixture is not consistent with the rest of the wall; and kick plate on the dish washer is not installed.

Investigator Reed performed a Compliance Inspection on June 13, 2017. During this inspection, he added an item under Compliance Jobsite General Notes stating that one item on the corrective work order was omitted by accident and that was “outlet in the cabinet above the microwave not being complete. Currently it is not secured to the wall and does not have a face plate.” Investigator Reed provided photos from his inspection, and made the following Compliance Findings: (6) door trim that was installed has visible nail holes. He noted (1) proper building permit was issued and I was shown a “green tag” issued by the city of Glendale.

On June 16, 2017, a Citation was issued citing the following: Charge 1: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. §32-1154(A)(3); and Charge 2: A violation of A.R.S. 32-1154(A)(22) “Failure 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. The written directive shall set forth the time within the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive.”

Respondent submitted its Written Answer to the Citation and Complaint by way of counsel on June 26, 2017, denying any violation and requesting a dismissal.

A Notice of Hearing was sent to the parties on June 29, 2017, that a hearing is scheduled for August 23, 2017, on the charges made in the Citation and Complaint to be held before the Office of Administrative Hearings.

HEARING EVIDENCE

Complainant provided in his Opening Statement the work provided by Respondent was not up to par and that the parties had no contract. He was seeking high standards and wanted to be ensured that the work complete was safe. This would require a general building permit which was not obtained. He indicated he will provide testimony and evidence at this hearing that Respondent should be disciplined for poor workmanship; specifically, failing to obtain requisite building permits, truss was not properly repaired, among other things. He stated that there is disagreement as to whether or not the corrective action was satisfactorily complete.

Mr. Sestek stated that Complainant become confrontational when asked for payment and this is when Respondents were locked out from the jobsite. After being unable to recover the remaining balance due, Respondent hired counsel to seek collections. It wasn’t until a year later that Complainant filed his complaint with the Registrar. It is believed the basis of the complaint is because Respondent filed a complaint in the court to collect outstanding monies.

Mr. Sestek stated Respondent denies poor workmanship.

INVESTIGATOR REED’S TESTIMONY

Investigator Reed testified he has been employed with the Registrar office for about a year and a half. He was assigned to investigate this Complaint. He provided a narrative report as to his involvement in the case.

Investigator Reed testified that he conducted the jobsite investigation on May 18, 2017, and that Respondent was not allowed in the home during the inspection. He stated that the outlet above the microwave was later repaired and a photo was sent confirming the repair to the outlet.

The ROC Investigator was questioned on what he meant by “obtain proper building permit through local jurisdiction and pas all required inspections,” in his Directive to which he replied he was referring to the Truss.

During the compliance inspection, he testified that the door trim nail holes was highly visible. He stated that Respondent sent a photo of the outlet and repaired items on June 15, 2017. When asked why the matter was sent to legal if the items were repaired, he stated it was determined by the agency to set it for hearing.

He testified that he did not inspect the truss because he was provided a “green tag” that the structure was in compliance with the city inspector, and once a green tag is provided, the matter is outside of his jurisdiction.

Complainant questioned Investigator Reed on whether he tested the vent “flow” from the microwave to which he stated he does not conduct destructive testing since this would require assessing inside the wall, and that he did not detect any smell.

Respondent asked if he was aware of any other contractors or handyman performing work, modifying or altering the jobsite.

MARK PTASHKIN’S TESTIMONY

Mr. Ptashkin testified he is the Inspector Supervisor of the Building Safety Department for the city of Glendale. He testified that he has held this position for 16 years.

Complainant showed Mr. Ptashkin a photo of the truss in the attic taken by Investigator Reed’s during his compliance inspection and asked if based on the photo, if he were performing the inspection, would he pass it. Mr. Ptashkin replied that if he saw it he would have to address it even if it wasn’t on the permit.

Complainant asked Mr. Ptashkin if a contractor is paid to fix a truss in the attic, would that work performed pass the city of Glendale inspection? Mr. Ptashkin replied that as an inspector he would not accept it. Complainant asked for clarification. Mr. Phtaskin replied, “If I can rephrase and state it as if I am inspecting this would I approve it? No, I would not approve it.”

Complainant asked Mr. Ptashkin if a contractor installed a dozen ceiling lights and moved electrical lines, would that require a building permit, to which he testified, yes.

Mr. Ptashkin was asked if an electrical permit was pulled for the property located at 5484 West Quail Avenue, to which he consulted with the permit history and replied, no. No electrical permits pulled in accordance with the permit history. Mr. Sestek objected to the question as inappropriate and unfair.

Ms. Sestek asked Mr. Ptashkin if he has any idea what work the Respondent did at Mr. Mosca’s house? Mr. Ptashkin testified, no.

Mr. Sestek asked in terms of the truss, if provided plans with green tag and safety inspection based on an inspector’s review of the plans and physical observations and gave a green tag, would that indicate proper repair to include gussets, to which he replied, if he inspected it, yes.

Complainant on redirect asked Mr. Ptashkin if it is his testimony that he would not pass, to which he testified, yes. Should have issued a correction list if he had seen it.

Do you know if the City Building Inspector did? Mr. Ptashkin replied that it is his understanding that it was a single inspection and it passed.

The tribunal asked Mr. Ptashkin if painting required a permit, he replied no. If appliance installation requires a permit, to which he replied, certain appliances do. The tribunal asked specifically if a microhood install requires a permit to which he replied yes and would also require an inspection. He further testified that if the microhood requires connection to a duck system, especially if replacing a hood . . . as the circuit may not be suitable for loading.

Mr. Ptashkin credibly testified that double doors would also require permit and inspection. He indicated that separate permits would not be required provided the scope of work was listed in full. Or could be performed under an umbrella permit.

COMPLAINANT’S TESTIMONY

Complainant described the hiring process of Respondent and that he was seeking high-end workmanship. He testified that he found Respondent in a local community magazine and researched them on the Registrar’s website. Having found no complaints, they obtained competitive bids and hired Respondent. The work was performed in an a la carte approach and he was promised completion by Christmas. Unfortunately, the project was still ongoing in April 2016. He testified that as the project was ongoing, he found the company to be unprofessional and discontinued doing business with Respondent and had to change the locks.

Complainant was questioned regarding how many handymen he hired for the renovations. He admitted to hiring other tradesman to do the renovations to his home. For example, he testified that he hired a plumber, had solar installed, and a gas guy.

Complainant testified that Respondent’s work did not meet minimum contractor standards, and because he paid for the work to be performed, he expected it to be complete.

JENO HORVATH’S TESTIMONY

Mr. Horvath testified that his son is the license holder for Denix Construction, LLC. He is a member of Denix Construction, LLC. He testified that Complainant never communicated any dissatisfaction and that issues were not raised until they demanded payment.

Mr. Horvath testified that the blue tag item subject was never communicated. He stated that the truss was properly fixed, and that they did not provide any new wiring when installing ceiling chandeliers.

He testified that no electrical was done for Complainant.

Mr. Horvath testified that they have since made changes to their business cards to be in compliance with the Registrar requirements.

Mr. Horvath stated that all of the items have been remedied.

CLOSING ARGUMENTS

Complainant asserts that he meet his burden that Respondent failed to exercise minimum workmanship standards, and that discipline should be imposed.

Mr. Sestek asserts that Respondent provided evidence that all of the corrective items were remedied and that a green tag was provided for the truss and fireplace projects, and moves that the Complainant should be dismissed.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

Credible testimony established Respondent performed substandard work, specifically, failure to obtain the proper building permits for the electrical work and microhood. In addition, even though the City provided a green tag for the truss repair, Complainant presented persuasive testimony through his witness Mr. Ptashkin. In review of photos taken by Investigator Reed on June 13, 2017, and referenced by Complainant, Mr. Ptashkin testified that he would not have passed the repairs. Thus, Complainant established Respondent’s work on the items specified in the Directive to be in violation of minimum workmanlike manner, specifically A.A.C. R4-9-108 and thereby of A.R.S. § 32-1154(A)(3).

Additionally, an A.R.S. §32-1154(A)(22) violation is substantiated as Respondent provided no evidence that the electrical work or microhood were permitted and inspected for safety reasons. This tribunal respectfully notes that the corrective action as specified in the Directive was not specific and relies on the jobsite inspection conducted on May 15, 2017, wherein there is a strong presumption that Complaint Items 11 and 15 required permitting and inspection for safety reasons.

Also the work was to be complete by June 12, 2017. The photos emailed to Investigator Reed followed after that date and were not raised until the Compliance Inspection. The compliance inspection duly noted that the “door trim that was installed has visible nail holes.” This item was listed on the Directive to be complete by June 12, 2017. Nowhere on the record was evidence or testimony provided that Complainant extended the time to remedy items listed on the Directive.

The preponderance of the evidence established that Respondent failed to timely remedy all of the items listed on the Directive as issued by the Registrar. This failure resulted in poor workmanship standards, thus the Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22).

RECOMMENDed order

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. CR61.281558-D for a period of one (1) day.

It is further recommended that Respondent pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). 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 this matter, shall result in the automatic revocation of Respondent’s contractor’s licenses 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 this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification

Done this day, September 19, 2017.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors