ALJDEC decisions subject to certification as final

2020A-05595-CHC-ROC · Registrar of Contractors · 2021-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Karen S Burgess,

COMPLAINANT

Henzel Construction LLC

License No. ROC 287541,

RESPONDENT

No. 2020A-05595-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 14, 2021

APPEARANCES: Complainant Karen S. Burgess appeared on her own behalf via Google Meet. Jean Robert Henzel, III appeared for Henzel Construction, LLC via Google Meet. Registrar of Contractors Investigator Mike Nation appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Henzel Construction, LLC (Respondent) is the holder of License No. 287541 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 3, 2020, Karen S. Burgess (Complainant) signed a contract with Respondent for installation of a master bath vanity in her residence. The contract amount was for $1,514.93.

On or about December 1, 2020, the Registrar received a Complaint containing four items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Mike Nation. The jobsite inspection was performed on December 21, 2020.

Investigator Nation then issued a written directive on or about December 29, 2020 to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. §32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 January 29, 2021.

. . .

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

Complaint Item 1: A line crack in the cabinet where the screw was placed too close to the face of the cabinet, right bottom cabinet door during installation.

Investigator’s Observation: I observed the M/Bath Linen Cabinet at the bottom Right Cabinet Door and saw surface damage to the frame on the right side. Upon closer inspection, I noticed a small horizontal line crack on the surface of the frame and observed the cabinet screw hardware to be in alignment and in close proximity with the horizontal line crack in surface of frame. I also felt a small bugle or ripple on the surface as if a cabinet screw had been placed too close to the cabinet face which likely caused the line crack.

Governing Rule: The Respondent shall correct by the appropriate means. The damage to the surface of the cabinet represents collateral damage likely caused during the installation of the cabinet hardware screw. Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards. Respondent shall correct by the appropriate means.

Complaint Item 2: Poor finishing on left bottom door of cabinet.

Investigator’s Observation: I observed the M/Bath linen cabinet as pointed out by the Complainant. I observed the M/Bath Linen cabinet at the Bottom Left Cabinet Door and noticed two (x2) finish imperfections on left outer edge of door.

Governing Rule: The Respondent shall correct by the appropriate means. Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards. Contractor should properly prepare and refinish affected areas, matching color as closely as possible.

Complaint Item 3: 3-fingered spine on the face of the left top cabinet door.

Investigator’s Observation: I observed the Master Bath Linen Cabinet at the Top Right Cabinet door. I noticed the inner right edge of the door to have a 3-fingered type spine mark or imperfection on the surface.

(All errors contained in the original)

A Compliance Jobsite Inspection was performed on February 2, 2021. In his notes regarding the same, Investigator Nation noted the following:

Compliance Item 1 - has not been corrected by the Respondent (licensed contractor) by appropriate means and in accordance with workmanship standards. The Complainant reported the cabinet manufacturer, CFA Cabinety did a paint touch up to this area (to make it look better), but referred her to the licensed contractor to correct. The Complainant reported dissatisfaction with this item and expressed concern about the surface crack to the cabinet face caused by the screw. I noticed a small horizontal line crack on the surface of the frame and observed the cabinet screw hardware to be in alignment and in close proximity with the horizontal line crack in surface of frame. I also felt a small bugle or ripple on the surface as if a cabinet screw had been placed too close to the cabinet face which likely caused the line crack. The Respondent is/was responsible for this item, but failed to correct by appropriate means as per the written ROC Directive and a citiation will be issued.

. . .

Compliance Items 2 and 3 - appear to have been corrected by appropriate means and in accordance with workmanship standards. The complainant reported satisfaction with these items.

(All errors contained in the original)

On February 10, 2021, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

On or about February 24, 2021, Respondent e-mailed an Answer to the Registrar.

On or about March 12, 2021, a Notice of Hearing was issued setting a hearing on April 14, 2021 at the Office of Administrative Hearings, an independent state agency.

Investigator Nation testified as to his involvement and the above timeline.

Investigator Nation testified that there was no representative from Respondent at either jobsite inspection.

In addition, Investigator Nation testified that although the manufacturer was involved in making the repairs, it was still Respondent’s responsibility to make sure all repairs were made.

Finally, Investigator Nation did examine the “sign off sheet”, but believed that it did not satisfy Compliance Item 1.

Complainant testified on her own behalf and offered two exhibits into evidence.

Complainant testified that she informed Respondent about some issues with the cabinets, and Respondent came back about a month later to reinstall 3 new doors and a drawer face on the vanity.

Complainant also testified that Respondent did not appear at any inspections nor completed the directive work. Complainant testified that Respondent arranged for CFA do complete the corrective work.

Complainant testified that prior to their arrival to make the repairs, CFA only gave her thirty minutes notice. She testified further that they did satisfactorily complete directive items 2 and 3, but not item 1 and she did not agree that signed off on the entire project.

Jean Robert Henzel, III testified on behalf of Respondent and offered six exhibits into the record.

Mr. Henzel testified that he did not appear at the jobsite inspections as he had no intention of stepping foot back into Complainant’s house due to her bad-mouthing.

Mr. Henzel testified that there is still a very tiny raised bump that was caused by a crooked screw. Mr. Henzel described this as a “rookie mistake”, one he would never make. Mr. Henzel also testified that this repair would take approximately 2 minutes to complete.

Mr. Henzel testified that he installed the hinges “one time and one time only”, and he took the doors off of the hinges, not the hinges from the frame. Thus, he did not know how the door could have been damaged by him.

Administrative notice is taken of Respondent’s prior License record on April 27, 2021. Such prior License record reflects that Respondent’s License No. 287541 was first issued on January 16, 2014, and reflects that there is 1 open complaint, namely the present complaint.

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 preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. There was damage bottom right cabinet door, there were two finish imperfections on the bottom left cabinet door, and there was a3-fingered imperfection on the surface of the left top cabinet door. 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.

The evidence established that complaint item one was still not properly repaired. While it is understandable that Mr. Henzel did not wish to be present in Complainant’s home, it was still his responsibility to ensure that all repairs were made correctly. Further, there was no compelling reason presented by Mr. Henzel, for complaint item one not to be completed, especially if it is a “two-minute” repair as he so testified. 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).

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. 287541 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $100.00 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)(7), 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 30 days from the date of that certification.

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-137160-45720000Done this day, April 27, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000