ALJDEC decisions subject to certification as final

2020A-02572-CHC-ROC · Registrar of Contractors · 2021-02-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Scott A. Fineman,

COMPLAINANT

J & Sons Construction LLC,

License No. ROC 323939,

RESPONDENT

No. 2020A-02572-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 22, 2021, and January 29, 2021

APPEARANCES: Complainant Scott A. Fineman appeared and was represented by Neil G. Horenstein. Respondent J & Sons Construction LLC was represented by Lori N. Brown.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

J & Sons Construction LLC (Respondent) is the holder of License No. 323939 issued by the Arizona Registrar of Contractors (Registrar).

On or about October 6, 2019, Scott A. Fineman (Complainant) signed a contract with Respondent for a renovation project in his home and guest house for a total contract price of $288,548.65.

At some point, Complainant suggested they part ways and Complainant would hire someone else to get finish the project. While the parties were discussing the terms of the separation, Complainant asked Respondent to complete certain aspects of the project and were willing to allow certain delays. They parties never came to an agreement on how the contract would be cancelled.

On or about May 25, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Lisa Melton. At the time of the jobsite inspection, Eliyahir Ickovic, Respondent’s Owner, elected not to go into the property because the guest house was rather small and Mr. Ickovic was concerned with the risk of COVID-19 transmission. Accordingly, Mr. Ickovic stayed outside the property. When Investigator Melton was completed with the inspection, Mr. Ickovic asked Investigator Melton if she had any questions about the project or needed any information from him. Investigator Melton denied having any questions for Mr. Ickovic.

Upon reviewing the contract provided by Complainant, Investigator Melton concluded the contract was vague as to the scope of the contract and whether Respondent was required to perform any work on the main house. Because Investigator Melton could not determine Respondent was required to perform work on the main house, she did not include the main house in her jobsite inspection and limited herself to the complaint items related to the guest house.

After the jobsite inspection, Investigator Melton issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); A.A.C. R4-9-108. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on September 25, 2020.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Compliance Item 1: Guest House - Cabinet and doors are not level nor placed to ceiling as requested and damaged. Handles put in unevenly. Bottom not completed. Incomplete. There was suppose to be matching cabinets on the northwest wall. Never installed

Investigator’s Observation: Contract does not provide sufficient information to determine cabinet layout. Handle installation meets minimum standard. Cabinet doors have been installed with top edge of doors within 1/8” horizontal plane which meets minimum standard. Cabinet boxes are level. Unable to verify scope of cabinets on the northwest wall. Some of the cabinet doors have not been installed. The only damage that does not meet standard is a chip approximately 3/8” in length on one of the cabinet doors. Respondent should install doors (appear to be on site) on the cabinets which were previously installed and correct the chip by appropriate methods.

. . . .

Compliance Item 2: Guest House - Patio doors were not ordered correctly. They were supped to have mini blinds encased with a concealed screen. Present screen does not work. Doors damaged scratched and paint Framing poor workmanship

Investigator’s Observation: Doors were installed but did not meet the specifications of the contract. On May 30, 2020 the Respondent advised that the new doors were received and available for installation. Respondent should install patio doors that meet specifications. Installation has been delayed to allow for this inspection to occur prior to the installation.

. . . .

Compliance Item 6: Guest House - Exhaust fan in bathroom was put in at an angle

Investigator’s Observation: Corrected prior to inspection. Respondent stated in their response that the “exhaust fan is correctly installed...” ALL of the work of the Respondent should comply with the requirements of the local building authority and Respondent should provide copies of permits/inspection relative to the work performed in the Guest House to the ROC Investigator.

. . . .

Compliance Item 7: Guest House - Electrical receptacle was put in directly above future sink. Wrong place and moved to side, leaving a plate and not repaired

Investigator’s Observation: New outlet over sink was installed by Respondent. No permits were obtained by Respondent. Work includes installation of lights, installation of vent fan, installation of electrical outlet(s) and power to new exterior lights on guest house. ALL of the work of the Respondent should comply with the requirements of the local building authority and Respondent should provide copies of permits/inspection relative to the work performed in the Guest House to the ROC Investigator.

. . . .

Compliance Item 8: Guest House - All tile needs to be cleaned to make sure it has not been damaged due to putting building materials on new cork tile floor and ceramic tile floor. Contractor ran out of tile. We had to order more. Gaps between tile in new area. Grout between tile and door uneven

Investigator’s Observation: Gaps between tile are less than 1/16” inch. Grout at door meets standards. Tile is covered in a thick layer of dust/dirt and has areas where paint or other construction material stains are visible from a standing position. Respondent should clean tile and correct stains.

. . . .

Compliance Item 9: Guest House - Electrical face plates not put on

Investigator’s Observation: Some switches/outlets have trim and others are missing trim. Respondent stated in their response “all electrical trim is installed.” Respondent should install missing electrical trim.

. . . .

Compliance Item 10: Guest House - Poor texturing and paint job in southwest corner

Investigator’s Observation: Seam is visible and paint is of varying finishes. Respondent should correct these by appropriate means.

. . . .

Compliance Item 11: Guest House - New bathroom door creaks

Investigator’s Observation: Door is somewhat difficult to open/close, noise is not significant. There is a long vertical crack running above and below the latch plate. The Respondent should correct by appropriate methods.

. . . .

Compliance Item 14: Guest House - Ceiling lighting receptacles not flush

Investigator’s Observation: This condition was corrected prior to the inspection, however, the paint applied around the cans after the rework is not the same finish as the surrounding paint. ALL of the work of the Respondent should comply with the requirements of the local building authority and Respondent should provide copies of permits/inspection relative to the work performed in the Guest House to the ROC Investigator.

. . . .

Compliance Item 34: We are concerned with the exposed electric wires that our contractor had run from the inside to the exterior by both patio doors. We do not believe there is a switch for those wires. In addition, the existing exterior electric lights (which were in working order) are no longer working. We are not interested in putting in decorative lights.

Investigator’s Observation: Contract does not provide sufficient information to determine scope of work relative to existing (abandon or reuse) or new exterior lights. Respondent did not attend the inspection and provided no response to this item. Wire has been pulled to this location (through wood exterior of guest house). No permits were obtained by Respondent. ALL of the work of the Respondent should comply with the requirements of the local building authority and Respondent should provide copies of permits/inspection relative to the work performed in the Guest House to the ROC Investigator.

Following the issuance of the written directive, Respondent performed some corrective work. After the deadline in the directive expired, Investigator Melton was notified corrective work had been performed and she performed a compliance jobsite inspection on October 2, 2020.

At the compliance jobsite inspection, Investigator Melton noted that Complaint items 2, 6, 7, 8, 9, 10, 11, 14, and 34 had not been corrected appropriately. While the sliding door had been replaced, it did not close completely or evenly. Investigator Melton also observed that, as to complaint item 1, both Complainant and Respondent denied removing the cabinet doors, and Investigator Melton was unable to determine who was responsible for the doors being removed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B); and A.R.S. § 32-1154(A)(22).

Investigator Melton testified as to her involvement in this matter. Investigator Melton stated that a permit was required for the electrical work performed on the project and, that while Complainant was responsible for obtaining the permit, Respondent should not perform any electrical work until a permit had been issued. Investigator Melton noted that she erroneously listed complaint item 2 as a violation of A.R.S. § 32-1154(A)(2)(a) in the pencil cite when that item should have been listed as a workmanship violation.

Judith Fineman, Complainant’s wife, testified that they entered into a contract with Respondent to remodel their home and guest house. According to Ms. Fineman, the plan was for Respondent to perform work on the guest house and certain areas of the main house and, once that portion was complete, she and Complainant would move into those areas so work could continue on the remainder of the house. Ms. Fineman stated that Respondent installed new ceiling fans, switches, and outside lights, and Respondent removed a thermostat. Ms. Fineman denied that she or Complainant had removed the cabinet doors.

Larry Stephenson, Home Inspector, testified as to his observations of the project that he detailed in a written report.

Mr. Ickovic testified that after Respondent entered the project, his father-in-law got COVID-19 and eventually passed, which delayed the project. Mr. Ickovic wanted to be released from the contract, but the parties did not reach a final agreement on the terms of the contract cancellation. Mr. Ickovic admitted that the contract was for the renovation of the guest house and the main house and that Respondent had performed work on the main house.

Administrative notice is taken of Respondent’s prior License record on February 18, 2021. Such prior License record reflects that Respondent’s License No. 323939 was first issued on March 28, 2019, and is active. Such prior License record also reflects that there were two open complaints and no prior complaints against Respondent’s license.

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 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).

The evidence established that Respondent performed electrical work on the project without a permit having been issued for the project. Therefore, Complainant established that Respondent deviated from building codes in violation of A.R.S. § 32-1154(A)(2)(b).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B).

The evidence established that Respondent did not complete the corrective work following the directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

Notably, Investigator Melton did not include any items from the main house in her inspection. Therefore, nothing in the directive or presented at the hearing addressed Complainant’s issues with Respondent’s work on the main house, which Mr. Ickovic admitted Respondent performed. Because Investigator Melton did not inspect the main house or include any main house items in the directive, Complainant, in this proceeding, had no recourse against Respondent. It is recommended that the Registrar reopen the investigation to look into those issues based on Mr. Ickovic’s admission that Respondent performed that work. Failing that, Complainant may file a separate complaint relating to the main house for the Registrar to investigate.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar reopen the investigation of the complaint to determine if any corrective work is required in the main house.

It is further recommended that, as to the issues raised as to the guest house and presented in this hearing, the alleged violations are substantiated and the Registrar shall suspend Respondent’s License No. 323939 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

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 final 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 prior 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.

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-137160-45720000Done this day, February 18, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000