ALJDEC - Licensing

2023A-03181-CHC-ROC · Registrar of Contractors · 2023-10-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Renee Riksheim,

COMPLAINANT

v.

Sefferovich Construction Inc.

License No. ROC 053403,

RESPONDENT

No. 2023A-03181-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 4, 2023

APPEARANCES: Complainant Renne Riksheim appeared via Google Meet on her own behalf. John Sefferovich appeared on behalf of Respondent Sefferovich Construction Inc. Investigator Michael Springer appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Sefferovich Construction Inc. (Respondent) is the holder of License No. 053403 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 23, 2021, Renee Riksheim (Complainant) agreed to have Respondent remodel/xonstruct a back porch. There was no written contract for the project.

On or about April 3, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Michael Springer. The jobsite inspection was performed June 19, 2023 and again on June 29, 2023.

Investigator Springer then issued a written directive on or about June 30, 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 July 20th 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - subfloor was left lower than stem wall resulting in flooring not being able to go to the wall.

Investigator’s Observation: Plans show subfloor framing flush with top of the stemwall allowing final flooring to go all the way to the wall. When placing a level on this floor it is approx 1/2" low on the stemwall side.

Respondent states he was not finished with the floor, however, all components have been installed per the plan. Any leveling or shimming should have been done under the subfloor framing as the plan shows.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Subflooring is slanted.

Investigator’s Observation: Floor is approx 1/2" out of level in just over a 4 foot span.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Concrete wall was not formed properly and comes out at an angle.

Investigator’s Observation: Concrete wall at opening from kitchen to the porch is 8 1/8th at the top and 8 3/4" at the bottom. There is a very noticeable bend in the wall.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

(All errors contained in the original).

On July 27, 2023, Investigator Springer conducted a Compliance Jobsite Inspection. His notes provided, in pertinent part:

Compliance Findings:

All items remain uncorrected. No work at all.

Note:

I used a 2 foot level to double check the area of the patio after concerns from the Respondent. This ensured that only the Respondent’s work was checked, the floor remains out of level 1⁄4” in 2 feet.

On August 3, 2023, 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(a); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about August 14, 2023, the Registrar timely received Respondent’s Answer.

On or about August 25, 2023, a Notice of Hearing was issued setting a hearing on October 4, 2023, at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Springer testified as to the Registrar’s involvement and the above timeline.

Investigator Springer testified that there was no contract therefore this was a violation of the statute.

Further, Investigator Springer testified, that the project was supposed to include a reframed floor, however the floor was not level causing it to dip, and when he inspected the 4 foot section the floor was not level. Also, Investigator Springer testified that even with the proposed backer board on the plans, the floor was going to be out of level.

Finally, Investigator Springer testified that there was no attention given to the crooked concrete wall, but because there was no contract it was difficult to determine what work should have or needed to be done to correct this issue.

Complainant testified that the big problem was the subfloor float from the door to the other window. Complainant testified repeatedly that the length of the floor was not level as it was 1/8 inch off from the stem wall to 7/8 inch off from the entry way.

In addition, Complainant testified that once the Directive was issued, Mr. Sefferovich requested to come and look underneath the addition. Complainant testified that after Mr. Sefferovich looked at the area, he left, and she did not hear from him again until 10-15 days later which was after the Directive expired.

Respondent offered the testimony of its Qualifying Party John Sefferovich.

Mr. Sefferovich testified that he was given the drawings by Complainant’s architect and followed the same. He testified further that the stem wall was higher that the flooring because they had to bring it up and everyone was aware of that change.

Further, Mr. Sefferovich testified that he was working on another job but was able to give Complainant 8 weeks of work so she would just pay him either weekly or every other week.

Mr. Sefferovich disputed Investigator Springer’s claim about the un-level floor as he testified that the floor was perfectly level as demonstrated by the photographs taken by himself during the Directive period. Also, Mr. Sefferovich testified that he performed the work according to the drawing and the left side was 1⁄2 inch below the kitchen.

Finally, Mr. Sefferovich testified that he offered to remove a section to further inspect on July 31, 2023, but that Complainant and her brother rescinded their agreement to allow him to compete the same. Also, Mr. Sefferovich testified that he was unaware of the Compliance Jobsite Inspection date as the notice of the same was mailed to him instead of e-mail and the mail in Bisbee can be slow.

Administrative notice was taken of Respondent’s prior License record on May 17, 2021. Such prior License record reflected that Respondent’s License No. 053403 was first issued on December 12, 1980, and reflected that there were no open complaints, no disciplined cases and no resolved/settled cases.

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 Vazzano 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. Through the testimony of Investigator Springer and Complainant, the subfloor was not level and the concrete wall was not formed properly. While Mr. Sefferovich testified that his photographs demonstrated that the flooring was level, there was no date, or specific area as to what was being shown, thus the tribunal does not find those photographs persuasive. 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(A).

The preponderance of the evidence established, that there was no valid contract between the parties, therefore, Respondent is in violation of A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158. Further, no updated sample contract had been provided to the Registrar at the time of hearing.

The evidence established that Respondent failed to complete the corrective work following the Directive being issued. The evidence presented that Mr. Sefferovich only offered to attempt to fix the work after the Directive expired. There was also no evidence provided that Mr. Sefferovich requested additional time to 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 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. 053403 for a period of ten 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that the Registrar require Respondent to provide a sample contract which complies with the statute within thirty days. It is further recommended that if Respondent fails to provide the same 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 the sample contract.

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 23, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Renee Riksheim

[email redacted]

Sefferovich Construction Inc

[email redacted]

By: OAH Staff