ALJDEC - Licensing

2023A-02120-CHC-ROC · Registrar of Contractors · 2024-05-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Arteca ,

COMPLAINANT

Holtzman Home Improvement LLC

License No. ROC 335007,

RESPONDENT

No. 2023A-02120-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 15, 2024

APPEARANCES: Michael Arteca appeared on his own behalf. Jace Riley, Esq. appeared as counsel for Respondent Holtzman Home Improvement LLC.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing (NOH) packet and all of its documents contained therein. Complainant’s exhibits 1-7, 9, and 11-15 were admitted. Respondent’s exhibits 1, 2, 3, 6, 7, and 9 were admitted.

_____________________________________________________________________

FINDINGS OF FACT

Holtzman Home Improvement LLC (Respondent) is the holder of License No. 335007 issued by the Arizona Registrar of Contractors (Registrar).

Michael Arteca (Complainant) entered into a contract with Respondent for the addition of a new kitchen, a walk-in closet, a laundry room, and a master bathroom to his existing home.

Work on the project began in July, 2022.

On or about February 27, 2023, 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.

Investigator Melton originally scheduled a jobsite inspection (JSI) for April 13, 2023. After receiving some additional items from Complainant, Investigator Melton rescheduled the JSI to April 26, 2023.

The JSI occurred on April 26, 2023 and was attended by both parties.

After a jobsite inspection, Investigator Melton advised that a workmanship evaluation could not be addressed because the work was not yet complete. As such, Investigator Melton issued a written directive on May 3, 2023 to Respondent to complete the work per contract, and in accordance with professional industry standards, any applicable building codes, workmanship standards and manufacturer’s installation instructions within 30 days.

On or about June 16, 2023, the project passed the final inspection by the city and a certificate of occupancy was issued.

On June 26, 2023, Complainant emailed Investigator Melton that the work had not been completed and added additional items to be inspected.

On July 14, 2023, Investigator Melton conducted a compliance inspection as well as an addendum inspection and noted that the Complaint could not be referred at that time due to the addendum.

On August 2, 2023, at the request of Complainant, City of Phoenix Inspector Skirk, Inspector No. 6021, re-inspected the project and found:

Roof ventilation is required due to not following the approved plans calling for insulation be installed on the underside of roof sheathing... Insulation was installed above ceiling drywall instead.

R-8 A/C ducting is required per the approved plans ....

Batt insulation is not installed per manufacturer’s installation instructions and missing above beam

Roof cannot drain properly at center of house.

This information was handwritten on a document titled Inspector’s Notice (Notice).

On August 14, 2023, Complainant emailed Investigator Melton that a “city field supervisor” had re-inspected some of the attic/roofing work and the work had failed inspection. Complainant was referring to the Notice.

On August 14, 2023, Investigator Melton issued a written directive. In pertinent part, the directive stated:

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 August 31, 2023.

DIRECTIVE REQUIREMENTS

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

Compliance Item 19: Proper attic ventilation. Holtzman has ignored our concerns on this front. Our understanding is that pink insulation can be used both on top of the ceiling or under the roof. If the insulation is on top of the ceiling, the attic must be properly ventilated. Right now, it is not. Had Holtzman followed the site plan this would not have been an issue, as no ventilation is needed when the insulation is on the roof. Is the standard practice to not ventilate an attic with insulation of this type?

Investigator’s Observation: Subsequent to this inspection, the Complainant obtained an inspection by the City Building Official relative to the roof/attic. Inspector’s Notice has been provided to parties as additional information and is attached here. Respondent should comply with the Inspector’s Notice and provide documentation of compliance with the notice to the ROC Investigator.

. . . . .

Compliance Item 20: Master bath ceiling height and roof transition. This s another situation where we have been provided multiple excuses, including: - it was a framing mistake (Cory) – it had to do with the trusses and how they were fabricated (Brandon) – it was because we wanted to avoid a visible transition on the roof (Rob) – Line item said 8ft (Rob). If the ceiling height was changed to avoid a visible transition in roofline, the visible transition that is currently in place should be addressed.

All errors contained in original.

On or about August 27, 2023, Respondent conducted its own inspection and brought along an HVAC contractor and an insulation contractor, Phoenix Insulation.

On or about August 30, 2023, Phoenix Insulation returned to the property to make “some adjustments” to the insulation.

Respondent had not been in the attic thereafter between August 30, 2023 and October 20, 2023.

On or about August 28, 2023, Respondent requested Inspector Skirk to re-inspect the project on August 30, 2023. Inspector Skirk did not.

On October 3, 2023, SHAPE PHX indicated that the roof venting and A/C were addressed, but that the insulation was still not installed per manufacturer’s installation instructions and the roof drainage was not addressed.

Investigator Melton conducted a compliance inspection on October 16, 2023. At the inspection Investigator Melton did not personally inspect the issues noted in the August 2, 2023 Notice. Because the issues were noted by the City, pursuant to Investigator Melton’s written directive, Respondent was required to provide documentation of compliance with the Notice in order to be in compliance with the written directive.

Respondent did not produce any such document.

Investigator Melton noted in her compliance inspection notes:

Prior to this inspection, Complainant provided document from City Building Official dated October 3, 2023, stating “Insulation still not installed per manufacturers installation instructions.” Document is attached here. Respondent has failed to comply with the Directive and did not request additional time to comply.

On October 20, 2023, a City Building Official (CBO) re-inspected the property. At that time, the CBO tested the roof drainage and it passed inspection. At this time, Respondent also went into the attic and noticed some insulation batts that were misplaced. Respondent offered to fix the issue at that time, but Complainant denied Respondent the opportunity to do so. It was due to the condition of the insulation that the matter did not pass inspection again at this time.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(B); and Ariz. Rev. Stat. § 32-1154(A)(22).

Hearing Evidence

Investigator Melton testified consistently with the Findings of Facts. Investigator Melton also testified that it was common for a project to pass final city inspection, and to later receive a notice that the project had failed in some capacity. Investigator Melton testified that things could be missed during the course of an inspection; thus, if it later came to the attention of the homeowner or inspector, then the City would re-inspect.

Complainant testified that he contracted Respondent to add a new kitchen, a walk-in closet, a laundry room, and a master bathroom to his existing home.

He further testified that before the drywall was placed, he noticed gaps in the insulation and tried to advise Respondent of his concerns at that time. After the certificate of occupancy was issued, he requested an additional inspection due to the “obvious deficiencies in insulation.” A CBO came to his property on August 2, 2023 and inspected the project. Respondent was not present for this inspection. Investigator Melton was not present for this inspection.

Complainant further testified at one point that, from the time the written directive was issued to the time of the “follow up,” Respondent was never in the attic to correct anything. However, he later then stated that Respondent was in the house, with attic access, as late as the latter part of August or early September, 2023.

Complainant further testified that he believed the roof drainage passed inspection on October 20, 2023 based on the conversation he heard between the CBO and Respondent.

Nicholas Martinez, senior superintendant, testified on behalf of Respondent. Mr. Martinez testified that he came onto the project around July 2023 in order to “get it past final inspection.” His role was to “close the project out.” He testified that when the project received the certificate of occupancy, he believed all of the work was complete. Therefore, he was surprised when the August 14, 2023 written directive was issued. Mr. Martinez indicated that the August 2, 2023 notice from the city indicated that Respondent had used the wrong ducting. However, the notice was inaccurate, and in fact, the correct ducting was used. A text message between the CBO and Mr. Martinez confirmed that the CBO must have “misread” the duct label.

Mr. Martinez testified consistently with the Findings of Facts. He further testified that, on August 28, 2023, he requested the CBO to conduct an inspection on August 30, 2023. The CBO did not conduct the inspection as requested. A CBO did not inspect the property until October 20, 2023.

Administrative notice is taken of Respondent’s prior License record on May 16, 2024. Such prior License record reflects that Respondent’s License No. 335007 was first issued on October 6, 2021, and is currently active. Such prior License record also reflects that there was one other open complaint and two prior resolved/settled complaints 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.”

Compliance Item 19 and Compliance Item 20, as written in the written directive, do not appear to be the actual issues at litigation. The actual items that are subject to the written directive are based on the August 2, 2023 Notice, which include: (1) Roof ventilation; (2) R-8 ducting; (3) Insulation not installed per manufacturer’s installation instructions, and (4) Proper roof drainage. These issues were incorporated into the written directive with the following language:

Subsequent to this inspection, the Complainant obtained an inspection by the City Building Official relative to the roof/attic. Inspector’s Notice has been provided to parties as additional information. Respondent should comply with the Inspector’s Notice and provide documentation of compliance with the notice to the ROC Investigator.

The only remaining item that was the subject of this hearing was the insulation. The roof ventilation was corrected. The R-8 ducting was never improper, but was rather an inspector error. The roof drainage passed inspection.

The evidence established that Respondent attempted to obtain a City inspection by August 30, 2023, but the City did not inspect as requested. Had Respondent been able to obtain this inspection, there is the possibility that, had it not been up to code at that time, Respondent still had one more day until the compliance deadline in the written directive. This is especially true if, in fact, it was but mere insulation not being in its proper place.

Notwithstanding, it was Respondent’s responsibility and obligation to communicate with Investigator Melton and request an extension in order to obtain the proof it needed that it had passed inspection. Respondent failed to do so.

Respondent further failed to pass inspection again on October 20, 2023. Complainant, at that time, had no further obligation to allow access to the project as it was after the compliance deadline. Respondent contends that it was someone else that moved the pieces of insulation that were out of place. However, there was no evidence to support its argument. In fact, the evidence established that Complainant stated there were no other contractors at the project during the relevant time periods. The evidence further established that Respondent was the last contractor in the attic to “make adjustments” to the insulation. There was no evidence presented to support the state of the insulation at the end of the day on August 30, 2023, the last time Respondent was in the attic.

As Respondent’s previous counsel stated in a letter to the City:

Undersigned counsel called the City Inspector directly afterward and he confirmed that these few pieces of insulation, present but moved out of the way, exposed drywall and were the only reason the inspection failed. . . As a result, in the eyes of the ROC investigator, [Respondent] did not comply with its written directive and the matter was being referred to legal. As a very practical matter, we will be fighting before an Administrative Law Judge over four (4) pieces of insulation that are sitting up in the attic and which only need to be moved into place.”

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 Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(B).

The evidence established that Respondent made an attempt at corrective work, but did not complete the corrective work. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. 335007 for a period of 1 day.

No civil penalty is recommended at this time.

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, May 30, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff