ALJDEC - Licensing
2023A-08296-CHC-ROC · Registrar of Contractors · 2024-07-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Michelle Mirabito ,
COMPLAINANT
v.
Holtzman Home Improvement LLC
License Nos. ROC 335007, 289443 &
324787
RESPONDENT
No. 2023A-08296-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 20, 2024
APPEARANCES: Michelle Mirabito (Complainant) represented herself. Alicia Casale, Esq. represented Holtzman Home Improvement LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On or about August 30, 2022, Complainant and Respondent entered into a residential construction contract for the amount of $30,001.20. Complainant paid Respondent $29,585.40 pursuant to the contract.
2. On or about February 28, 2023, Respondent started work. On or about July 21, 2023, Respondent stopped work.
3. On or about July 21, 2023, the Registrar of Contractors (Registrar) received a Complaint from Complainant alleging poor workmanship and abandonment on the part of Respondent.
4. Complainant filed an addendum to the complaint adding additional complaint items.
5. On January 30, 2024, Lisa Melton, an investigator for the Registrar of Contractors, conducted an initial job-spite inspection. Investigator Melton discovered that Respondent’s work with regard to Complaint Items, 1, 3, 6, 8, 11, 13, 14, and 17, did not meet minimum workmanship standards.
6. On September 22, 2024, the Registrar issued a Directive to Respondent directing Respondent to correct Complaint items 1, 3, 2, 6, 8, 11, 13, 14, and 17, no later than 5:00 p.m. on October 9, 2023.
7. On January 30, 2024, Investigator Melton conducted a compliance
job-site inspection. Investigator Melton found that Respondent failed to correct Compliance Item 3. Investigator Melton found that all of the other complaint items were correctly repaired. Investigator Melton’s compliance job-site notes provide, in relevant part, as follows:
Compliance Item 3: The used two different colors of grout on both the entire bathroom floor and on the shower walls;
Investigator’s Observation at JOBSITE INSPECTION: Grout color is not consistent on shower walls. Grout color is not consistent on bathroom floor. Respondent should correct these conditions. Registrar does not order complete replacement only correction by appropriate methods.
Investigator’s Observation at COMPLIANCE INSPECTION:
• Complainant Concern #1: Grout still remains two different colors (bathroom floor and shower walls) after they removed it and it was reapplied. NOT COMPLETE. Grout is not discolored, however, it is not consistent in color. Color varies greatly on shower wall and also on bathroom floor.
8. On February 14, 2024, the Registrar issued a Citation against Respondent’s license. Through the Citation, the Registrar alleged that Respondent violated Arizona Revised Statutes (A.R.S) § 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-109(A).
9. Respondent filed a timely answer to the Citation. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
10. A hearing was held on June 30, 2024.
11. At hearing Complainant testified on behalf of herself. Respondent presented the testimony of Larry Hightower, a project superintendent for Respondent, and Nick Martinez, senior project manager for Respondent. Investigator Melton testified regarding her investigation. Investigator Melton agreed on cross examination that some level of grout inconsistency is normal. Investigator Melton further clarified that during her compliance inspection, she found that the grout on the floor was acceptable. Investigator Melton stated that the grout on the shower walls did not meet minimum workmanship standards. However, Investigator Melton stated that she noticed grout colors varying from off-white to dark gray at the compliance inspection.
12. Complainant explained that Respondent performed poor work on her home. Complainant stated that Mapei’s quality manager told her that the grout used by Respondent, Mapei Ultracolor Plus, has been discontinued since 2013. Complainant stated that Respondent sent her a copy of the grout that it used on her home and it was Ultracolor Plus.
13. Mr. Hightower performed the grout work in Complainant’s shower and bathroom. Mr. Hightower explained that he used Mapei Ultracolor Plus and he has used the grout in several other homes.
14. Mr. Martinez has worked in the construction industry for 20 years.
Mr. Martinez worked on tile and grout in Complainant’s home after the Directive was issued. Mr. Martinez explained that he used Mapei Ultracolor Plus grout. Mr. Martinez explained that grout inconsistencies are common. Mr. Martinez explained that he purchased the grout from Big D Flooring. Mr. Martinez state that the grout discoloration was not excessive.
15. Upon review of the evidence, the Administrative Law Judge concludes that there is insufficient evidence to establish that the grout used by Respondent was in fact expired or discontinued. However, the Administrative Law Judge concludes that based on Investigator Melton’s observations at the compliance inspection, the grout discoloration on the shower walls was excessive.
16. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on July 10, 2024. Such prior License record reflects that Respondent’s License No. ROC 335007 was issued on October 6, 2021 and there are two open complaints against Respondent’s license. Such prior License record shows that two complaints were resolved or settled. Such prior License record shows that Respondent’s License No. ROC 289443 was issued on January 29, 2014 and License No. ROC 289443 has no disciplinary history. Such prior License record shows that Respondent’s License No. 324787 was issued on June 15, 2019 and one complaint was resolved or settled.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat.
sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section
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, 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)
3. The Administrative Law Judge may consider Registrar’s administrative
record. See A.A.C. § R4-9-118.
4. The preponderance of the evidence shows that Respondent’s work failed
to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).
5. The preponderance of the evidence shows that Respondent failed to correct the Directive items without valid justification, which is a violation of Ariz. Rev. Stat. section 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 license numbers 335007, 289443, and 324787 held by Holtzman Home Improvement LLC, for three days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 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, July 10, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Michelle Mirabito
[email redacted]
Lisa Melton
[email redacted]
Alicia M. Casale, Esq.
Murphy Cordier Casale Axel PC
[email redacted]
By: OAH Staff