ALJDEC decisions subject to certification as final
2017A-814-CHC-ROC · Registrar of Contractors · 2017-07-19
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jo A Erath,
COMPLAINANT,
v.
Holtzman Home Improvement LLC,
License No: 242008, 289443
RESPONDENT.
No. 2017A-814-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 12, 2017
APPEARANCES: Jo A. Erath, Complainant; Brandon Scott Holtzman, Respondent LLC Member, Danny Holtzman, Respondent LLC Member, Bruce Capron, Respondent witness, Alicia M. Casale, Esq., counsel for the Respondent; Matt Gunstra, Investigator, ROC.
ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson
_____________________________________________________________________
A Hearing was convened to determine whether Respondent Holtzman Home Improvement LLC violated state law as has been alleged by Complainant Jo A. Erath and as cited by the Arizona Registrar of Contractors (hereinafter also, “the ROC”). Evidence and testimony were presented.
Respondent Holtzman Home Improvement, LLC holds a Class CR37 | DUAL | LLC license first issued by the ROC on January 29, 2014. Complainant alleges that Respondent performed remodeling and installation on a bathroom project, but the Respondent is alleged to have performed incompletely and in an unworkmanlike manner.
Based upon an examination of the entire record, the following Findings of Fact are made, Conclusions of Law rendered, and DECISION AND RECOMMENDED ORDER issued:
FINDINGS OF FACT
According to ROC records, Jesus Mora is the Qualifying Party identified on for Holtzman Home Improvement LLC (hereinafter “Holtzman”) license. Mr. Mora did not appear at hearing in this case. However, two members of the Holtzman LLC, Brandon Scott Holtzman and Danny Holtzman, did appear and provided testimony.
Complainant, Jo A Erath, is an owner of residential real estate located at 2231 East Branhan Lane in Phoenix, Arizona.
The project at issue involved a bathroom demolition and remodeling job at the Complainant’s property situated in Phoenix, Arizona. The work was performed on Arizona property, the contract under which the construction was performed was executed in Arizona, and the Contractor is licensed by the ROC. As such, the acts and omissions alleged in the Complaint fall within the requirements of Title 32, Chapter 10, Article 3.
Complainant entered into a written agreement with Holtzman on or about September 24, 2016 by which it was agreed that Holtzman would perform demolition and remodeling of a bathroom for the total price of $29,186.21.
The Complainant paid $8,755.86 to Holtzman in anticipation of performance. The payment was made as acceptance of Holtzman’s offer to perform on the project. The remainder of payments were to have been paid in progress installments which were described in the agreement.
As the project neared completion, the Complainant noticed the temperature of the bathroom wall stood at 90 degrees Fahrenheit and that the bathroom itself stayed too warm for comfort. Complainant retained services of a Thermography company to attempt to determine whether the bathroom was property insulated. Only the bathroom was tested. No other portions of the house were checked. The bathroom wall was not visually inspected. No one from the thermography company was called to testify. No foundation for the opinions of the thermography report were offered.
Having become upset over the quality of Holtzman’’s performance on aspects of the installation, Complainant Holtzman filed a Complaint with the ROC on or about February 10, 2017. The Complaint alleged workmanship deficiency and incomplete performance.
An inspection of the site was conducted by ROC Inspector Matt Gunstra on May 2, 2017 and again on April 10, 2017. At the April 10, 2917 inspection Mr. Gunstra noted that the Complainant would not let Bruce Capron [foreman for the Respondent] “...into the home again and became very worked up because he was at the door with me. He again waited at the curb while I inspected.”
Based upon his observations made at the April 10, 2017 inspection and upon his discussions had with the Complainant, Inspector Gunstra issued a “Corrective Work Order” on April 10, 2017 directing Holtzman to make corrections and repairs to the project as follows:
Complaint Item 1 (addendum): Barn door, wall and baseboard require repairs/spackling/repainting.
Directive: Master bathroom door does not glide smoothly at floor post and catches when closing. Baseboard at master bath has paint that either does not cover the wood completely or does not match in color to the surrounding. Please note that two spots on the baseboards have peeling paint.
Complaint Item 6: No insulation installed on exterior wall behind shower valves.
Directive: Respondent shall install insulation in wall and ceiling cavities fully and completely as required by code.
Per the testimony of Mr. Gunstra and confirmation at hearing by the Complainant, the Barn door has been repaired to an acceptable standard. Baseboards near the door have been painted to a minimum standard, but the Complainant testified that the paint used does not match the rest of the baseboard paint. At the hearing it was confirmed that the Complainant provided the paint materials.
Because Holtzman did not perform portion of the corrective work order regarding installation of insulation in the bathroom, Inspector Gunstra requested that a CITATION AND COMPLAINT be issued and that a Hearing be convened.
An ROC CITATION AND COMPLAINT was issued on May 4, 2017 citing Holtzman for possible violation of A.R.S. § 32-1154(A)(3) and (23).
Pursuant to A.R.S. § 32-1155, Holtzman filed a timely ANSWER to the CITATION AND COMPLAINT on May 19, 2017 moving to dismiss the Complaint asserting that it has been denied access and that Complainant’s requirements for repair is unreasonable, excessively expensive and time consuming and uneconomic.
The ROC issued a NOTICE HEARING on May 23, 20187 and the Hearing was conducted pursuant thereto.
At the Hearing, Inspector Gunstra further testified from his vantage of having conducted a Prehearing Inspection of the site on April 10, 2017. He related that, except for the issue related to insulation, the corrective work has been accomplished by the Respondent.
Complainant testified that there are only two ways to install the insulation repair: Drill exterior holes into the wall and shoot insulation into the wall or install insulation rolls from the interior after pulling down the tile and walls. Complainant testified that she refused to permit the Respondent to apply insulation from the exterior.
Complainant testified that the Respondent did repair the paint that had been pealing from the wallboard, but that the paint used did not match.
Respondent witness Bruce Capron testified that he was the Respondent’s foreman on this job. For reasons he was not certain about, he was barred from the job site by the Complainant. Mr. Capron related that the most cost effective way to attempt to re-apply additional insulation at this job was to drill holes in the exterior, blow the insulation into the walls using a sub-contractor and then cover/paint the holes. He estimated it could take approximately 5 days or less to do the work.
Mr. Capron stated that to place insulation in the way demanded by the Complainant, the interior bathroom tile and wall board would have to be removed down to the rough-out, insulation would then be laid into the space, the area would then need to be re-walled and re-tiled. He estimated it would take an additional 5 to 6 employees to accomplish the work and would take up to a month to complete. Mr. Capron stated the demand of the Complainant to re-insulate from the interior only is not cost-effective, results in material waste and high labor expenses whereas re-installing via an exterior approach is the most efficient and inexpensive method.
Mr. Capron denied that insulation was either not installed or installed insufficiently to meet industry standards.
CONCLUSIONS OF LAW
The Registrar of Contractors has jurisdiction over Complaint No. 2017A-814-CHC-ROC under the authority of A.R.S. § 32-1101, et seq., a section that enables the Registrar to impose disciplinary sanctions against licensees for the violations noted at A.R.S. § 32-1154(A).
Holtzman Home Improvement LLC is a licensee
The burden of persuasion generally at an administrative Hearing falls to the party asserting a claim, right or entitlement, or an Agency seeking to impose a penalty. Further, the standard of proof is that of the “preponderance of the evidence.” 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.” The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion, in this case Jo A. Erath., is more probably correct on the issue(s) in dispute.
Observing these evidentiary standards, Complainant Jo A. Erath has not persuaded, by a preponderance of the evidence, that Respondent Holtzman has violated the cited statutory and regulatory provisions by failing to perform in a workmanlike manner.
By a preponderance, the evidence supports that the Respondent failed to make corrections when directed so to do by the Registrar’s Inspector in that it did not undertake or complete the re-installation of insulation in the bathroom as directed. Notwithstanding, the Respondent has legal excuse for its failure in that the Complainant has and continues to refuse access to Holtzman to undertake the directed insulation re-application unless Holtzman performs the task by the specific method demanded by the Complainant.
By a preponderance, the evidence supports that the Respondent did make repairs to the peeling paint, but that the paint used for the repair did not match the rest of the paint already on the painted material.
Re-installation of insulation from the exterior rather than from the interior is economically the most reasonable method of application. Such an approach avoids demolishing the bathroom, avoids weeks of time and labor expense and is a routine method used to apply the insulation product. The Respondent is not required by the ROC Directive to perform the repairs ordered by any particular method. Rather Holtzman is directed “...to remedy the ...violations by the appropriate means.”
Although Complainant’s evidence of a thermography report fails to persuade this fact finder that insulation in the bathroom is improperly or properly installed, the Respondent agrees it is still ready, willing and able to re-apply insulation as long as it is permitted to do so from the exterior by drilling holes, subcontracting to have insulation shot into the walls and then restoring the exterior wall with stucco and paint.
An examination of Holtzman Company’s license record reveals that no other Complaints have been filed against the license.” The license history affords neither aggravating nor mitigating factors for assessment.
RECOMMENDED ORDER
IT IS RECOMMENDED that thirty days after the effective date of the final Recommended Order in this matter, Respondent’s License Nos. 242008 or 289443 are suspended for one day unless the Registrar of Contractors receives proof that Respondent has re-painted the repairs for peeling paint with a paint that matches the surrounding painted surface and that Respondent has provided a re-application of insulation to the Complainant’s bathroom exterior wall by appropriate means. Complainant shall permit Respondent reasonable access to the job site to complete the repair.
FURTHER IT IS RECOMMENDED that if the Complainant refuses access either by the Respondent or its sub-contractors to comply with this Order, then the Citation and the Complaint upon which it is based shall be closed and no discipline be imposed on Respondent’s License Nos. 242008 or 289443.
In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative hearings, then the effective date of the Order shall be 40 days from the date of that certification.
Done this day, July 19, 2017.
/s/ Randolph D. Wolfson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors