ALJDEC - Licensing

2023A-13959-CHC-ROC · Registrar of Contractors · 2024-05-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Rebecca Valcik,

COMPLAINANT

v.

H&E CONSTRUCTION LLC

License No. ROC 336908,

RESPONDENT

No. 2023A-13959-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 3, 2024

APPEARANCES: Complainant Rebecca Valcik was represented by George Chebat appearing via Google Meet. Lawrence Felder appeared via Google Meet on behalf of H&E CONSTRUCTION, LLC. Registrar of Contractors Investigator Robert Di Alto appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Respondent’s Exhibits 1-2 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

H&E CONSTRUCTION LLC. (Respondent) is the holder of License No. 336908 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 27, 2023, Rebecca Valcik (Complainant) agreed to have Respondent remodel her home in Scottsdale, Arizona. The contracted amount was $159,988.75.

On or about December 7, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Robert Di Alto. The jobsite inspection was performed on January 9, 2024.

Investigator Di Alto then issued a written directive on or about January 31, 2024, 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 02/19/2024.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item: 2-Plumbing not done; - Master shower flooding every time use of shower is on;

Investigator’s Observation: Verified. I observed a tub overflow cover that was not installed properly and fell off into the tub at the time of this inspection. I also observed that the shower pan slope does not appear meet professional industry standards, and allows water to pond. When the shower was running at the time of inspection water was able to exit the shower within a few seconds. The Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 13-Paint not finished and drywall not complete;

Investigator’s Observation: Verified. I observed several areas at the bathrooms where wall damage is visible and appears to be from the installation of the countertops and full height wall splash. I also observed that shims were still in place at the time of this inspection that have yet to be removed. The Respondent shall correct by the appropriate means where these conditions exist.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 15-Front custom door not working or complete;

Investigator’s Observation: Verified. I observed significant gaps and visible daylight at the top, left and right of the entry door. The door sweep does not appear to function properly and is poorly installed and does not appear to be a match for the custom door. The Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 17-Framed fireplace not completed or installed;

Investigator’s Observation: Verified. I observed a fireplace opening and fireplace kit that was not installed at the time of the inspection. The Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 19-Stucco not complete, framing not complete, drywall and paint not complete ;

Investigator’s Observation: Verified. Stucco is not complete at the entry door exterior perimeter. The Respondent shall correct by the appropriate means.

I also observed that the framing, drywall and paint at the described location appeared to be complete at the time of this inspection. No further action required by the Respondent for these specific complaint items.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 21-The glass shower door in master won’t close

Investigator’s Observation: Verified. I observed the sweep at the bottom of the shower door does not allow for the door to function properly and completely close. The Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complaint Item: 22-Front remolding pallet filled with stuff never picked up or moved just sitting still on our driveway we are unable to move it

Investigator’s Observation: Verified. I observed a 4 x 4 pallet with construction materials located in the Complainant’s front driveway. The Respondent agreed to relocate the pallet and materials to a location approved by the Complainant. The Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

. . .

Addendum Complaint Items added at JSI

. . .

Complaint Item: 25a-Mail box is not complete and needs to be painted to match house.

Investigator’s Observation: Verified. I observed the mailbox located at the street and it appears to be gray in color and not complete or matching the residence in color. The Respondent stated that his workers backed into it, causing damage and that it was in the process of repair. Respondent stated he would paint to match exterior of residence. The Respondent shall correct by the appropriate means.

Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

(All errors contained in the original)

On February 22, 2024, 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), and A.R.S. § 32-1154(A)(22).

On or about March 6, 2024, Respondent e-mailed an Answer to the Registrar.

On or about March 18, 2024, a Notice of Hearing was issued setting a hearing on May 3, 2024, at the Office of Administrative Hearings, an independent state agency.

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

Investigator Di Alto testified that Respondent requested an extension, but that was not until the expiration date of the Directive.

Further, Investigator Di Alro testified that while he did not perform a Complaisance Jobsite Inspection, it was his understanding from Complainant that item 13 of the Directive was complete.

Investigator Di Alto testified that he believed the time given to complete the Directive was appropriate.

Complainant testified on her own behalf. She testified generally, that there were numerous issues with communication and him not appearing for work, and that Respondent walked off the job at the end of November. Complainant testified that she had about $15,000.00 left to pay Respondent.

As to the specific Directive items, Complainant testified that the shower was consistently flooding and that despite Respondent coming three to four times during the corrective work period, there was no work completed to remedy the issue of flooding.

With regard to item 15, the front door, Complainant testified that Respondent performed no work, but believed that Mr. Alian directed another subcontractor to find a solution and it was that contractor who installed the door sweep.

Complainant testified that item 17, was not completed and that he husband was only to help with the electrical. Further, when Respondent brought in a specialist, the specialist would not perform the work because he believed it was not installed correctly.

As to the open space around the front door, item 19, Complainant testified that this work had not been completed.

With regard to item number 21, the shower door, Complainant testified that the only attempt to repair the same, was a subcontractor taking the plastic off of the bottom the door, however that glass is not grinding on the other piece of glass.

Complainant testified however that as to item 13, this was completed, “but not done well.” Further, item 22, the pallet, was removed, and that the mailbox, item 25(a), was completed but was finished by Complainant’s painter.

Adel Alian testified on behalf of Respondent. Mr. Alain was the qualifying party. He testified that Respondent has not had any other complaints.

Mr. Alian testified that Complainant kept adding to the scope of work however, there were no written change orders indicating the same.

In addition, Mr. Alian testified that he requested an extension at the last minute because he believed that Complainant had agreed to the same.

As to the Directive items, Mr. Alain testified as follows:

Mr. Alian testified that item 2, the tub overflow cover was completed, and agreed that the shower pan was not finished, and that he tried several times to schedule the repair but Complainant had family in, so they could not find the perfect time.

As to the front door, item 15, Mr. Alian testified that he did not instruct anyone to install the sweep, and that the fix would be to replace the entire door. Further, Mr. Alian testified that he cannot complete item 19, the stucco work around the door, until the door is resolved.

As to the fireplace, item 17, Mr. Alian testified that he was prepared to finish the installation once he received confirmation that the electrical work is completed.

As to the shower door, Mr. Alian testified that he did not believe that this was his responsibility as a subcontractor installed the door and Complainant paid that subcontractor separately for the same.

Mr. Alain testified that items 13, 22 and 25 were no longer at issue.

Administrative notice was taken of Respondent’s prior License record on May 17, 2024. Such prior License record reflected that Respondent’s License No. 336908 was first issued on March 2, 2022, and reflected that there was one open case, namely the present complaint.

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. Further, there was no dispute from Respondent regarding the same. 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 evidence established Respondent failed to complete the corrective work following the Directive being issued. Per both parties’ testimony, items 2, 15, 17, 19, and 21 were left uncompleted, while items 13, 22 and 25(a) were completed. 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. 336908 for a period of four days.

It is further recommended that the Registrar require Respondent to pay the sum of $300.00 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.

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 17, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

George Chebat

[email redacted]

Lawrence J. Felder

[email redacted]

[email redacted]

By: OAH Staff