ALJDEC - Licensing

2023A-02018-CHC-ROC · Registrar of Contractors · 2023-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Daniel Schaefer and

Danielle Nezzie,

COMPLAINANTS,

v.

Silver Construction Corporation

DBA: Refresh Renovations

License No. ROC 331057,

RESPONDENT.

No. 2023A-02018-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 4, 2023

APPEARANCES: Complainants Daniel Schaefer and Danielle Nezzie appeared on their own behalf. Respondent Silver Construction Corporation, doing business as Refresh Renovations, failed to appear. Arizona Registrar of Contractors Investigator Albert Bernal appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Silver Construction Corporation, doing business as Refresh Renovations (“Respondent”), is the holder of License Number 331057 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about November 21, 2021, Daniel Schaefer and Danielle Nezzie (“Complainants”) contracted with Respondent for Respondent to construct a 900 square foot addition to their home, as well as a walk-out deck. The contract price was $139,411.31.

On or about February 17, 2023, the Registrar received a Complaint against Respondent from Complainants alleging abandonment of the project.

The Registrar assigned the Complaint to Investigator Albert Bernal. After a March 14, 2023 Jobsite Inspection, and an April 6, 2023 inspection concerning addendum items, Investigator Bernal issued a Written Directive dated April 25, 2023, 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 15th, 2023.

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

Complaint Item: 1 - Flooring not completed (LVP in main/dining/stairs/hall/kitchen/living/dining, pantry, storage; Carpet and carpet pad in bedroom 3 and bedroom 4; Tile in bathroom 3 and bathroom4 and laundry;

Investigator’s Observation: Verified. I was shown several areas throughout the residence and I noted that the flooring (LVP and pad, and carpet) were not installed in any of the areas listed in this complaint item. The areas inspected were located in the first floor and on the second floor of the residence.

Respondent shall complete project per contract agreement.

Complaint Item: 2 - epoxy coat second floor patio deck);

Investigator’s Observation: Verified: I was shown the concrete floor in the second floor patio and I observed that the floor was not epoxy coated.

Respondent shall complete project per contract agreement

Complaint Item: 3 - Trim-out not completed (throughout: doors, handles, locks, casings, baseboards, sprinkler covers, drywall, tape, mud, texture, paint walls and ceilings

Investigator’s Observation: Verified. I noted that doors, door handles, door casings, baseboards, door trim sprinkler cover plates, were not installed in several areas located downstairs and upstairs. The areas inspected are part of the remodel located in the first floor, and the new addition in the second floor. I noted that several walls and ceilings throughout the project where the drywall, tape mud, texture, and paint were not completed

Respondent shall complete project per contract agreement.

Complaint Item: 4 - cabinet stain,

Investigator’s Observation: Verified. I was shown two sections of new installed cabinets in the kitchen that were not stained.

Respondent shall complete project per contract agreement.

Complaint Item: 5 - shelving pantry and kitchen

Investigator’s Observation: Verified. I was shown a wall areas in the kitchen (Sink side,) and pantry area where shelves were not installed.

Respondent shall complete project per contract agreement.

Complaint Item: 6 - vent covers

Investigator’s Observation: I noted that HVAC register grill/ covers were not installed in several areas in the first floor and second floor.

Respondent shall complete project per contract agreement.

Complaint Item: 7 - Bathrooms : vanities, sink, tub, toilets, fixtures, hardware including handles, drawer pulls, towel rods, toilet paper holders, shower curtain rod, tile surround.

Investigator’s Observation: Verified. Bathrooms shown to me were not completed. I noted that all items listed in this complaint (#7) were not installed.

Respondent shall complete project per contract agreement.

Complaint Item: 8 - unmounted cabinetry, unrepaired cabinetry - damaged by contractor);

Investigator’s Observation: I noted a cabinet section was sitting on top of the refrigerator. This cabinet section was not installed.

Respondent shall complete project per contract agreement.

Complaint Item: 9 - Electric not completed (throughout: sockets, socket covers, switches, switch covers, interior and exterior lights, interior and exterior ceiling fans, exhaust fans, coax cable plate cover, connection boxes exposed, fire and carbon monoxide detectors, fire alarm);

Investigator’s Observation: I noted that the fire alarm, light switches, receptacles, and electrical fixtures were not installed. This items were missing in several areas throughout the residence’s undergoing the remodel areas. (Remodel areas and new construction)

Respondent shall complete project per contract agreement

Complaint Item: 10 - Front entryway not completed (demolition, framing, windows, doors, masonry veneer, drywall, insulation, tape, mud, texture, paint interior and exterior, trim, handles, locks, stain/paint door);

Investigator’s Observation: Verified. I was shown he front entry door area and noted that the entrance wall area was not completed. Existing door had not been replace with new door. (New door was on site stored in the garage)

Respondent shall complete project per contract agreement.

Complaint Item: 11 - Plumbing not complete (throughout: fixtures, toilets, drains, sinks, sprinklers, tub filler/shower wand, showerhead);

Investigator’s Observation: Verified. I was shown the bathrooms and I noted that plumbing fixtures listed on this complaint were not installed and / or completed.

Respondent shall complete project per contract agreement.

Complaint Item: 12 - Roof foam (foam insulation on the HVAC ducts on roof);

Investigator’s Observation: Verified, I was shown the HVAC duct work on the roof and I noted that it was not foamed / insulated.

Respondent shall complete project per contract agreement.

Complaint Item: 13 - Roof grading and drainage. Roof to be built up to drain water off the roof and away from the house.

Investigator’s Observation: Verified. I was shown a roof section located by the second floor porch and I observed that the pitch on the roof section was not slope away from the house.

Respondent shall correct by the appropriate means.

Respondent shall complete project per contract agreement.

Complaint Item: 14 - bedroom 1, remove nonfunctional vent grill, drywall patch, tape, texture, paint. Incomplete paint.

Investigator’s Observation: Verified. I was shown a vent grill that remained installed in the bedroom 1 wall.

Respondent shall complete project per contract agreement

Complaint Item: 15 - kitchen counter, seam repair. Properly top mount sink and stove with silicone seal.

Investigator’s Observation:

1) Verified. I was shown a seam on the kitchen countertop and I noted that the seam was readily visible.

2) I observed that the cooktop was not secured to cabinet / countertop, Cooktop moved easily when little pressure was applied.

3) It appears that no sealer (silicone) was applied in between the countertop and the sink.

Respondent shall correct all 3 items listed in this complaint by the appropriate means.

Complaint Item: 16 - garage: solid core fire door w casing and self-closer;

Investigator’s Observation: Verified. I noted that the garage door (door leading from the house interior to the garage) was fire rated. However, the door did not have door trim installed, and /or any self-closing mechanism installed.

Respondent shall complete project per contract agreement.

Complaint Item: 17 - stair, railing, balusters, handrail

Investigator’s Observation: Verified. I noted that the stair’s railing (handrail) was not installed.

Respondent shall complete project per contract agreement.

Complaint Item: 19 – This is an addendum item to this directive.

With the rain tonight, we also found poor workmanship on the second story patio door. This was left off the new complaint as Rick claimed they fixed it when they did the stucco. Tonight's weather made it apparent that they did not fix it. Please see attached photos and ammend it to the complaint. The plywood is wet inside. The door frame is dry when I opened it to see if it was coming through that way. It is either coming through the wall or where the wall and floor join. Thanks for your assistance.

Investigator’s Observation: A water test was performed in the area in question (second story patio door) and water came through the bottom of the door from the outside porch located in the second floor into the inside of the residence. No damage was noted to the interior or exterior walls. (Drywall or stucco). The water appeared to be coming through the door's threshold area.

Respondent shall correct by the appropriate means.

Complaint Item: 20 - This is an addendum item to this directive.

Also following the rain and recent temperature changes. The patio has developed a lot of cracks in the stucco and paint

Investigator’s Observation: I was shown the beams on the second floor balcony (patio) and I noted several cracks on the stucco on various beams.

Respondent shall correct by the appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item: 18 - This is our second ROC complaint for this project. The previous complaint 2022-10529 was considered resolved after we reached a mediation agreement with the contractor on January 6, 2023. Following mediation, they set milestone dates for extensive work including flooring, and front entryway remodel. They did even start these pieces of the project. Contractor last worked February 3, completing exterior paint. On February 14, the contractor notified that they would not be continuing work until a contract amendment was signed. The contract amendment they are requesting violates the mediation agreement we entered into on January 6, 2023. We have provided the contract and mediation agreement copies here. They have abandoned the project effective February 3, and notified us of this on February 14.

Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.

All errors in original.

At the expiration of the deadline in the Written Directive, on May 15, 2023, the Registrar ascertained that Respondent had not performed any work. Respondent requested a seven (7) day extension of the deadline in which to perform the corrective work. The Registrar granted a seven (7) days extension to May 22, 2023.

On May 22, 2023, the Registrar confirmed with Complainants that Respondent did not perform any work.

Thereafter, the matter was referred to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing.

The continued hearing was scheduled to convene on October 4, 2023, at 9:00 a.m. Shortly before the scheduled continued hearing date, on September 29, 2023, Respondent filed a Motion for Hearing to be Vacated or Continued. On October 2, 2023, Complainants filed a response in opposition thereto. On October 2, 2023, the Tribunal issued an Order Denying Continuance, finding no good cause to continue the hearing. For the convenience of the parties, the Order provided the Google Meet link for the hearing.

On October 3, 2023, at 4:58 p.m., Respondent filed another Motion to Continue the hearing, however, the Motion failed to state a sufficient reason for the request. Given the pendency of the hearing, the Tribunal addressed the Motion as a prehearing matter.

On the date and at the time set for hearing, Complainants appeared on their own behalf. Investigator Bernal was present. Respondent did not appear through an authorized member, employee, or attorney. Respondent’s Motion to Continue was denied at the time of hearing. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Bernal testified consistently with his findings contained in the Written Directive and the Jobsite Inspection Notes. Investigator Bernal testified that nineteen (19) of the twenty (20) Complaint items were verified as incomplete or had not even been started.

Mr. Schaefer testified that Complainants are living in an unsafe home, Respondent abandoned the project, Respondent has not communicated with Complainants, and Investigator Bernal’s inspection findings “speaks for itself.” Mr. Schaefer testified that Complainants have paid Respondent $193,047.38. Mr. Schaefer further testified that in January 2023, the parties participated in a mediation and Respondent refused to fulfill its obligations under the terms of that agreement, which prompted Complainants to file the instant Complaint.

Administrative notice is taken of Respondent’s prior License record on October 18, 2023. Such prior License record reflects that Respondent’s License Number 331057 was first issued on October 21, 2020, and was suspended on September 6, 2023, for lack of a qualifying party. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled complaints, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainants bear 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.”

Pursuant to A.R.S. § 32-1154(D), “[t]he expiration, cancellation, suspension or revocation of a license by operation of law or by decision and order of the registrar or a court of law or the voluntary surrender of a license by a licensee does not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such a licensee, or to render a decision suspending or revoking such a license, or denying the renewal or right of renewal of such a license.”

The evidence established that Respondent abandoned its contract with Complainants and/or refused to perform pursuant to the terms of its contract with Complainants, without legal excuse for such abandonment or refusal. Therefore, Complainants established that Respondent violated A.R.S. § 32-1154(A)(1).

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

The evidence established that Respondent did not complete the corrective work following the Written Directive being issued and that valid justification for such failure did not exist. Therefore, Complainants 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 Number 331057 for a period of ten (10) 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.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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.

Done this day, October 20, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

[email redacted]

Silver Construction Corporation

DBA: Refresh Renovations

[email redacted]

Daniel Schaefer

Danielle Nezzie

[email redacted]

Albert Bernal

[email redacted]

By: OAH Staff