ALJDEC decisions subject to certification as final

2021A-01023-CHC-ROC · Registrar of Contractors · 2022-01-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Matthew C. Oskowis,

COMPLAINANT

Bart Lee Hirschberg

DBA: My Remodel Guy!,

License No. ROC 299140,

RESPONDENT

No. 2021A-01023-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 26, 2021, with further hearing on January 5, 2022

APPEARANCES: Complainant Matthew C. Oskowis appeared on his own behalf. Andy Jolley, Esq. represented Respondent Bart Lee Hirschberg, doing business as My Remodel Guy! Bart Hirschberg was present. Arizona Registrar of Contractors Investigator Jim Dimond appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Bart Lee Hirschberg, doing business as My Remodel Guy! (“Respondent”), is the holder of License No. 299140 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about August 28, 2020, Barbara Neubert contracted with Respondent for the following scope of work to be performed at her home:

Remove existing railing on upper deck and remove floor sheathing and covering. Install new sub decking and install a two process waterproof deck system. Install new metal wrought iron railings in black.

On lower deck replace both upper beams to appropriate size, reframe the entire deck and cover with Trex decking in brown color. Replace two post on lower room area with appropriate footings and brackets. NO removal of siding is included if it needs to be done it will be an additional charge. Install black wrought iron railings to match upper deck.

On or about March 9, 2021, the Registrar received a Complaint against Respondent from Ms. Neubert’s son, Matthew C. Oskowis (“Complainant”), alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Jim Dimond. After an April 9, 2021 jobsite inspection, Investigator Dimond issued a Written Directive dated April 27, 2021 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 May 28th, 2021.

The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive.

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

Compliance Item: 1 - Was to replace sub decking on upper deck, but only replaced a small section of the whole.

Investigator’s Observation: The contract specifies sheathing replacement and does not suggest "as needed".

The upper deck is purported to have 8 sheets however only the equivalent of one sheet was replaced. The replacement wood appears to be roughly 2' X 8'.

No change orders have been presented regarding the sheathing

The respondent will need to correct the condition in an appropriate manner.

Compliance Item: 4 - Failed to provide a written signed contract

Investigator’s Observation: There does not appear to be a signed contract.

The unsigned proposal/contract does appear to have been relied upon by the parties.

The document does not comply with statute (ARS 32-1158.A):

There is no estimated completion date (ARS 32-1158.A.(4), the applicable taxes are not listed (ARS 32-1158A.(6) and the notice to the public of the right to file an ROC complaint is not present (ARS 3201158.A.(9).

Additionally, ARS 32-1158.B provides that when the parties sign a contract, that the owner be provided with a legible copy and receipts for any monies paid.

This does not appear to have occurred.

Violation letter sent.

Compliance Item: 5 - Failed to obtain the proper construction permits

Investigator’s Observation: This project involves reframing the lower deck and includes the upgrading of beams from the current inappropriate sizing to an acceptable size and is more than 30" above grade.

This project requires a permit.

The respondent is to obtain the necessary permitting and comply with Yavapai County requirements in an appropriate manner.

Compliance Item: 6 - When asked about permits, his initial response was that he did not need a permit

Investigator’s Observation: This item is informational and non-actionable.

The permitting issue is addressed in item 5

Compliance Item: 10 - Placed support structures on top of the Trex decking on lower deck

Investigator’s Observation: At the lower deck southwest load bearing post is not installed in a manner that is a clear path to solid footing.

The post is on top of the trex deck and the nearest vertical support below is approximately 8" away and the horizontal load bearing beam does not appear to be supported in a manner consistent with requirements (2" X 4" nailed to an existing support post)

This area may require engineering.

The respondent is to correct this condition in an appropriate manner.

Compliance Item: 11 - Failed to provide proper, stable support for the lower deck

Investigator’s Observation: The post listed in item 10 and the ledger at the west end of this deck do not appear to be installed in a manner consistent with code requirements.

The joists at the ledger also do not appear to be installed in a manner consistent with code.

The respondent is to comply with the requirements set forth by Yavapai County Development services after they inspect the project for the permit.

Compliance Item: 14 - Lower deck does not meet building code standards based on 2018 IRC (city of Prescott)

Investigator’s Observation: The respondent is directed to obtain a permit and comply with Yavapai County requirements.

Note: Project is not in the City of Prescott and does not fall under their requirements

Compliance Item: 15 - When securing the lower deck to the house, caused the lower deck to shift and separate

Investigator’s Observation: This item involves the joists and is addressed in item 11

Compliance Item: 16 - Failed to replace both lower deck posts

Investigator’s Observation: The contract document specifies that the 2 posts at the lower deck are to be replaced and they have not been.

There is no change order provided changing the requirement.

The respondent is to correct the condition in an appropriate manner.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 2 - Was to remove existing railing on upper deck and did not.

Investigator’s Observation: The railing that is present is not secure. The new railing is not on site.

The posts were painted by others which would require removal of the sections.

This area is not safe and access should be restricted until the railings are corrected.

Governing Rule: A violation cannot be sustained regarding this item.

Compliance Item: 3 - Was repeatedly asked about whether the new railings were ordered and kept making excuses

Investigator’s Observation: This item is informational and not actionable.

Governing Rule: A violation cannot be sustained regarding this item

Compliance Item: 7 - When challenged about the quality of his work, he claimed he had 40+years of experience in construction

Investigator’s Observation: This item is informational and not actionable.

Governing Rule: Lack of Jurisdiction

Compliance Item: 8 - Made false claims regarding the materials used in construction (redwood vs Douglas fir)

Investigator’s Observation: With the exception of the Trex decking, the contract is silent on the specific materials to be used.

Governing Rule: A violation cannot be supported regarding this item

Compliance Item: 9 - When asked to specifically use certain materials he ignored the request

Investigator’s Observation: If specific materials were desired, the owner would have needed to have them specifically listed in the contract document.

That did not occur and a verbal request by others is not sufficient to support a violation

Governing Rule: A violation does not exist regarding this item

Compliance Item: 12 - Was hostile when questioned about anything regarding his work

Investigator’s Observation: Customer service matters are beyond ROC jurisdiction

Governing Rule: Lack of Jurisdiction

Compliance Item: 13 - Provided time and materials for work not done, but refused to provide for work actually done.

Investigator’s Observation: The project is not a time and materials project and there is no requirement to break down costs

Governing Rule: A violation is not present regarding this allegation

Compliance Item: 17 - Conversations on Nov 11th & 4th recorded

Investigator’s Observation: This item is informational and not actionable

Governing Rule: A violation is not present regarding this allegation

On April 27, 2021, Investigator Dimond issued Warning Letters to Respondent regarding Respondent’s alleged violation of A.R.S. § 32-1158, concerning failure to incorporate the nine minimum elements required to be contained in a contract, as well as for failure to obtain a building permit for the project.

Following the issuance of the Written Directive, and after the deadline in the Written Directive expired, Complainant informed Investigator Dimond that Respondent did not perform any work on the project. Consequently, a compliance inspection was not conducted.

Investigator Dimond forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(b), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and (b), A.R.S. § 32-1154(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

Investigator Dimond testified consistently with his findings contained in the Written Directive. Investigator Dimond testified that on August 23, 2021, he drove to the jobsite and ascertained that no work was performed after the issuance of the Written Directive, and as such a prehearing inspection was not conducted. Investigator Dimond testified that because there was no permit for the project, the county has not performed any inspections. Investigator Dimond explained that had the county inspected the project, the building official would have determined whether all of the plywood needed to be replaced, or only some of it. If only some plywood was in need of replacement, Respondent had indicated that Ms. Neubert would have received a credit. At the time of Investigator Dimond’s jobsite inspection, he could only view the plywood from underneath and therefore, could not determine whether damage existed on the surface of the plywood.

Investigator Dimond testified that on May 7, 2021, he sent an email to the parties due to Complainant not allowing Respondent to make repairs unless specific fasteners and other products that Complainant demanded be utilized. The email advised the following:

I have reviewed the correspondence below and need to advise you of one of the requirements of the ROC complaint process.

When a directive is issued, the complainant may not make special demands or requests.

By having the license, the respondent is deemed as having the knowledge and ability to make the necessary corrections.

Once the permit is issued, Yavapai County will have the say of what is or is not code required. They are the Authority Having Jurisdiction.

We have very recently begun providing a pamphlet to customers regarding activities after a directive is issued.

I have attached a scan of the pamphlet. I recommend that the parties review it. The complaint may be dismissed if the requirements are not adhered to.

Investigator Dimond further testified that Respondent called him several times to inform him of the breakdown in the parties’ relationship and raised issues with access to complete the Written Directive.

Investigator Dimond testified that when Respondent agreed to remodel the decking, Respondent accepted the surface upon which it performed its work.

The Registrar’s substantive policy statement 2017.01 sets out the following pertinent information:

Acceptance of the Surface

As a general principle in construction, a subcontractor who performs work on top of a surface prepared by another accepts the surface. The subcontractor should have inspected the surface for any flaws or defects that would affect the work he proposes before performing the work. If he found the surface to be unacceptable, he should have called any defects to the owner’s or general contractor’s attention so that the owner can choose whether to pay for the defective surface to be corrected or if the owner is not willing to pay to correct the surface, the contractor may obtain an explicit warranty disclaimer.

Complainant testified specifically and in detail regarding the progression of the project, and about the workmanship deficiencies contained in the Complaint and Written Directive. Complainant further testified regarding his numerous communications with Respondent inquiring as to when Respondent would perform the corrective work required by the Written Directive. Complainant further asserted that at no time was Respondent denied access to the jobsite. Complainant acknowledged initially placing “restrictions” on Respondent, however ceased doing so once Complainant was informed by Investigator Dimond that he could not place such demands.

Bart Hirschberg testified that he contacted Complainant shortly after the issuance of the Written Directive, however he was met with a “hostile situation” and “did not feel comfortable” returning to the jobsite. Mr. Hirschberg testified that he “was afraid he would not get paid and felt uncomfortable going back because nothing would satisfy” Complainant as Complainant “wanted the whole upper deck replaced” and the Written Directive did not require such as long as the county did not require it. Mr. Hirschberg testified that he “did not feel obligated to go back because he would have to perform work that he would not be paid for and felt it was not fair.”

Mr. Hirschberg admitted that he “should have pulled a permit, but Ms. Neubert did not want to pay for one, so she said don’t pull it.” Mr. Hirschberg testified that the Registrar required him to obtain a permit in order to perform the corrective work, and Respondent began the permit process, including the plans for the project, however, Respondent did not submit the permit application to the county because “Complainant was unreasonable.” Respondent did not offer any documentary evidence establishing having begun the permit process.

Mr. Hirschberg testified that he offered to return to Ms. Neubert all monies paid, however, Complainant rejected that offer. Mr. Hirschberg testified that he was terminated from the project in early November 2020 and is still owed money for work actually performed. Mr. Hirschberg asserted that Respondent was unable to comply with the Written Directive due to Respondent’s prior termination.

Administrative notice is taken of Respondent’s prior License record on January 7, 2022. Such prior License record reflects that Respondent’s License No. 299140 was first issued on June 9, 2015, and is active. Such prior License record also reflects that there is only the instant open complaint, zero resolved/settled complaints, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent failed to obtain the required permit for the project from the county. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(2)(b).

The credible, substantial, and probative evidence established that Respondent’s work was not in conformity with the Registrar’s standards and the required permit was not obtained. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner or in accordance with applicable building codes and professional industry standards, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and (b).

The evidence established that Respondent did not provide a signed contract for the project to Complainant, and the document relied upon as the contract does not contain an estimated completion date, the applicable taxes, and the information regarding how to file a complaint with the Registrar. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not complete the required corrective work following the Written Directive being issued. Further, the evidence provided by Respondent failed to establish valid justification for such failure. 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. 299140 for a period of five (5) 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 (30) 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.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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 forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, January 13, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000