ALJDEC decisions subject to certification as final
2018A-453-CHC-ROC · Registrar of Contractors · 2018-08-05
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Michael Dean Peacock,
COMPLAINANT,
v.
Holtzman Home Improvement LLC,
License No: 242008, 318131, 289443
RESPONDENT.
No. 2018A-453-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 24, 2018
APPEARANCES: Michael Peacock and Kathleen Peacock, Complainants,
Brandon Holtzman, John Cotton and Scott Glenn, Respondents, Alicia Casale, Esq. Attorney for the Respondent, Jack Grimm, ROC Investigator.
ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson
_____________________________________________________________________
FINDINGS OF FACT
Respondent, Holtzman Home Improvement LLC, (hereinafter, “HHI”) is the holder of License Numbers 242008, 318131 and 289443 issued by the Arizona Registrar of Contractors (hereinafter, the “Registrar”).
On or about April 26, 2017, Complainant Michael Dean Peacock entered into a contract with Respondent to demolish and re-model portions of Complainant’s residence, including the kitchen area.
On or about February 21, 2018, the Registrar received a Complaint against Respondent from the Complainant alleging Respondent performed poor work.
The Registrar assigned the complaint to Investigator Jack Grimm who proceeded to schedule a Job Site Inspection [“JSI”] at the Complainant’s residence. On or about March 14, 2018, after written notice to the Complainant and Respondent, an in person JSI was conducted. Present at the JSI was the Complainant and, appearing at JSI for the Respondent was its Job Site Supervisor, John Cotton.
Following the JSI, on March 20, 2018, Inspector Grimm issued a written Directive to Respondent containing a Corrective Work Order [“CWO”] which provided as follows:
You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on 4-9-2018. You are hereby directed to remedy the following violations by the appropriate means: [emphasis added].
Obtain building permit and obtain approval for work performed regarding all
structure work, plumbing and electrical work.
Complete correction of chipped floor tiles damaged during the removal of the grout. Correct tile with lippage greater than 1/32 near the back door.
Remove excess (these are small amounts) grout in various locations on kitchen backsplash tile. Correct subway tile cuts over the kitchen sink at top of window for better appearance.
Complete range hood exhaust cover to extend to the ceiling.
Correct all kitchen cabinets for finish, appearance and uniformity.
Correct drywall ceiling line in front room at ceiling transition.
Clean up locations of debris and messes at exterior of home.
Correct fireplace mantel to comply per contract.
The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.
Mr. Grimm also issued letters of warning to the Respondent on March 20, 2018 regarding its failure to obtain a building permit on the job site and for failure of the Respondent’s agreement to contain language required by A.R.S. § 32-1158(A).
Following the issuance of the written directive, a Compliance Inspection was conducted by Inspector Grimm on April 17, 2018 – a date after the CWO deadline of April 9, 2018. Both the Complainant and the Respondent were present. Inspector Grimm noted, and at hearing testified, that the Respondent had obtained a permit as required by the CWO. Moreover, three of the eight items listed in the CWO were found to be in compliance as well. However, four items on the CWO were not in compliance:
INCOMPLETE - Range hood cover to the ceiling was removed and not reinstalled.
INCOMPLETE - The paint on the kitchen cabinets is much improved, however the finish on the flat panel of the doors appears inconsistent.
INCOMPLETE - Repairs have been made however the texture is a poor match to existing.
INCOMPLETE - Locations in the front of the house are exceptible (sic). The location to the north of the rear patio did not get cleaned and it appears a new mess was made in around a plant in the back near the wall.
INCOMPLETE - A new mantel was on site, and the contractor states it is the correct part number per the homeowners’ instructions and the homeowners’ state it is the incorrect color.
On April 26, 2018 the Registrar issued a Citation against Respondent, charging two possible violations: 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 a violation of A.R.S. § 32-1154(A)(22)
The matter was referred to the Office of Administrative Hearings, an independent agency, for hearing to determine the merits of the Complainant and Citation. A hearing was conducted on July 24, 2018. All persons testifying were first sworn under oath by the ALJ.
Investigator Grimm testified consistent with his Job Site Inspection Notes and his Compliance Inspection Notes that at the compliance inspection on April 17, 2018, five (5) items listed in the CWO were still not in compliance.
Complainant Michael Dean Peacock testified that the range hood discussed in the CWO was installed such that the hood wobbles. He said the top of the hood did not meet flush with the ceiling. Mr. Peacock testified that Complainant’s selected the hood that they instructed Respondent to install. He testified that his home was built in 1993 and that he was not the original owner. He they were unable to afford replacement of their kitchen cabinets and opted instead to have the Respondent refinish them in a color that the Complainant selected. Complainant produced at hearing demonstrative evidence of several of the cabinet doors which were viewed by the ALJ without objection. Complainant maintains the cabinet refinishing is uneven in texture and poorly painted. Complainant agreed that Respondent made numerous efforts to re-do the cabinets, but Complainant is not satisfied with the result. Complainant testified that he selected and provided the Respondent with the skein number for a mantle to be installed in the residence, but the mantle that was installed by the Respondent was both the wrong style and wrong color. Complainant testified that at the Compliance Inspection a replacement mantle, still in the box, was at the residence.
John Cotton, testifying for the Respondent, stated that at the time he started this job as Superintendent, the kitchen hood had already been installed. He admitted it seemed to wobble a bit because the hood was not mounted flush to the ceiling. He stated that he was able to stop the wobble. However, he emphasized, the vaulted ceiling angle in this case required a custom hood be built to track the angle at the top of the hood with the angle of ceiling. The customer, [Mr. Peacock] specified and selected the hood himself. He did not order a custom hood and the hood ordered by the Complainant was installed. Regarding the finish on the cabinets, Mr. Cotton stated that at the insistence of the Complainant and in order to satisfy his concerns, the cabinets were sanded down to the wood and refinished nine times. Still the customer persisted that he was not pleased with the result.
Mr. Brandon S. Holtzman, Respondent’s President, testified that simply there are three issues: the kitchen hood, the kitchen cabinets’ finish and the mantle. He stated that the hood was ordered at the behest and direction of the Complainant. Mr. Peacock came into Mr. Holtzman’s office, showed him a photograph on Complainant’s cell phone and the Mr. Holtzman ordered the hood the Complainant showed him. Pursuant to the change order regarding the hood, a $400.00 allowance was afforded for the hood. The allowance is just a base price. A custom hood that would be made to fit the precise angles of the Complainant’s vaulted ceiling would cost in excess of $1,500.00 to $2,000.00. The Complainant did not order a custom hood. HHI ordered the hood Complainant directed us to order. Regarding the Complainant’s cabinets, these were not new materials. The cabinets were 1⁄4 “press board and had aged since originally installed in the early 1990’s. He explained that press board has variations in surface. The color of the refinish was fine to the Complainant, but they did not like the way they looked. Nine attempts were made to re-do the cabinets. He said it is not possible to refinish old particle board cabinets to look like new. He also referred to the contract of the parties in this case which provides:
Owner acknowledges that inconsistencies are sometimes inherent with natural wood. HHI shall not be responsible for varied and different grains, designs, characteristics, color tones and patterns or the effect of light and other environmental influences over the course of time. Buyer agrees to accept minor color variations within industry standards.
Regarding the mantle, Mr. Holtzman testified that the customer had HHI custom make the mantle he wanted and that product was ordered and installed. The Complainant complained the mantle was the wrong color and style. So, the customer provided a skein number of the product and that product was ordered and delivered to the Complainant’s residence. HHI offered twice to come to the site to mount the replacement mantle. He testified that the Complainant refused to allow the Respondent to install the replacement mantle.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation 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).
“American jurisprudence implies in all contracts the obligation to cooperate in the performance of the contract and not to delay, hinder, or interfere with the performance of other parties. Over the years, owners have been found on numerous occasions to have breached their implied duty of cooperation in the context of construction contracts. Such instances have included failure to provide timely site access, failure to inspect the work or complete other work necessary to allow the contractor to proceed, and failure to reasonably schedule and coordinate owner-controlled work.” Philip L. Bruner and Patrick J. O’Connor, Jr., Bruner & O’Connor on Construction Law, § 12:55 (West Group 2002) (citing inter alia Restatement (Second) of Contracts §§ 212 to 223); id. §9:99 (noting subsidiary duties, including “an ‘implied duty’ to make timely decisions” and “an ‘implied duty’ to exercise inspection and approval rights reasonably”).
By a preponderance of the evidence, it is established that the Complainant selected and directed the ordering of the kitchen hood and mantle that Respondent installed. The evidence does not demonstrate a failure of the Respondent to meet minimal construction standards regarding the hood and mantle. Moreover, Respondent was prevented from mounting the replacement mantle because it was refused access by the Complainant. As to the cabinet re-finishing, pursuant to the terms of agreement of the parties, the Respondent shall not be responsible for varied and different grains, designs, characteristics, color tones and patterns or the effect of light and other environmental influences over the course of time. In light of the age and the press board materials involved, by a preponderance of the evidence, the re-finishing of the cabinets in this case is not below minimum workmanship standards. However, that Respondent failed to obtain a building permit prior to commencing work on this project and that Respondent had failed to clean up locations of debris and messes at exterior of home does, by a preponderance of the evidence, establish that Respondent did not perform 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).
With the exception of the install of the kitchen hood, mounting of the mantle and re-finishing of the kitchen cabinets, the evidence demonstrates that all items contained in the CWO were complied with by the CWO’s compliance date. The hood and the mantle were materials and supplies specifically requested and ordered by or at the direction solely of the Complainant. Moreover, Respondent was prevented from mounting the replacement mantle because it was refused access by the Complainant. Inasmuch as the evidence does not demonstrate a failure of the Respondent to meet minimal construction standards regarding the hood and mantle, nothing further was required of the Respondent. Similarly, in light of the age and the press board materials involved, the re-finishing of the cabinets in this case is not below minimum workmanship standards, nothing further was required of the Respondent. Complainant failed to meet its burden of proof to establish by a preponderance of the evidence that Respondent violated 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 access a civil penalty in the amount of Five Hundred Dollars ($500.00) against Holtzman Home Improvement LLC, License Numbers: 242008, 318131, 289443.
IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Respondent’s 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 Respondent tenders payment of any outstanding civil penalty.
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, August 5, 2018.
/s/ Randolph D. Wolfson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors