ALJDEC - Licensing
2024A-05242-CHC-ROC · Registrar of Contractors · 2024-10-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
James Johnson,
COMPLAINANT,
v.
Frank Arthur Hershkowitz,
DBA: Herco Concrete,
License No. ROC 233801,
RESPONDENT.
No. 2024A-05242-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Convened and concluded on October 4, 2024.
APPEARANCES:
For Complainant: James Johnson.
For Respondent: Frank Hershkowitz.
For the Registrar of Contractors: Investigator Jim Dimond.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors.
_____________________________________________________________________
FINDINGS OF FACT
Frank Arthur Hershkowitz (Respondent) was the holder of License No. 233801 issued by the Arizona Registrar of Contractors (Registrar) on June 14, 2007.
On or about February 4, 2024, James Johnson (Complainant) entered into a contract with Respondent for, among other things, a concrete slab.
On or about May 6, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work.
The Registrar assigned the complaint to Investigator Dimond, who conducted a jobsite inspection on May 16, 2024, for which Respondent was present. Following the inspection, Investigator Dimond issued a Written Directive From the Registrar to Respondent on July 2, 2024 that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Complaint Item: 3 - Poor quality finish on house slab which was intended to be the finished floor.
Investigator’s Observation: The floor in this structure is intended to be exposed and to be stained.
Decorative saw cuts are installed in squares that are about 20".
Several of the cut lines don't terminate in the proper locations. Some cuts veer from the lines.
A number of the saw cuts exhibit spalling (chips on the edge of the cut) from cutting at the wrong time.
In several locations, those chalk lines are not disappearing as they should. One location red was used and red will not go away.
The slab surface itself for the purpose of being exposed and stained, would need to be blemish free. There are several locations in the unstained concrete that have some voids and some dried cream on top of the surface.
The garage floor has been stained.
The respondent is to correct the condition on the unstained concrete in an appropriate manner.
At the southwest corner of the garage, a notable downhill drop is visible and the complainant relayed that water pools in that corner.
The complainant also pointed out the rear stoop and says it doesn't drain. It however is stained as well.
The complainant accepted these surfaces
Due to staining these surfaces, the respondent's work has been modified and pursuant to ARS 32-1155.D.2, the Registrar is prohibited from including this allegation on a citation.
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.
A.R.S. § 32-1154(A)(3) - R4-9-108(a) Workmanship
The Written Directive required Respondent to notify Investigator Dimond of Respondent’s compliance with the directive prior to 5:00 p.m. on July 19, 2024.
On July 19, 2024, Complainant informed Investigator Dimond that no corrective work had been performed on the project.
On July 26, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108(A), and A.R.S. § 32-1154(A)(22).
Respondent submitted an Answer to the Citation on August 6, 2024. Respondent’s Answer stated that he did his best under the circumstances and that Complainant had not paid him in full.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On August 19, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for October 4, 2024, at 1:00 PM.
The hearing was held via Google Meet and in person on October 4, 2024.
Investigator Dimond testified in support of his investigation. He also testified that the stained concrete had been modified because staining the concrete was outside the scope of Respondent’s work, so bringing the concrete into an appropriate condition would require additional work.
Complainant testified that the poor cuts were caused by cutting too soon after the concrete slab was poured.
Respondent testified that he used modern equipment and that he had not been fully paid. Respondent also testified that he did not use red chalk.
Administrative notice was taken of Respondent’s prior License record on October 17, 2024. According to that record, Respondent’s License No. 233801 was active, and this matter was the only complaint against the 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. Respondent bears the burden of proof to establish an affirmative defense 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.”
Modification of the contractor’s work is an affirmative defense to allegations that the contractor failed to “perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards.” If another person performs more than de minimis work on the allegedly problematic surface, that person has modified the surface, accepting the surface as-is and becoming responsible for the underlying condition.
The preponderance of the evidence established that the items identified by Investigator Dimond as modified, were modified and accepted.
The preponderance of the evidence established that Respondent failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), specifically regarding out-of-line cuts, spalling, voids, and dried cream in the unstained concrete.
The preponderance of the evidence 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 for two days Respondent’s License No. 233801.
It is further recommended that the Registrar require Respondent to pay the sum of $200 as a civil penalty pursuant to A.R.S. § 32-1154(E). No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), 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 23, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
James Johnson
[email redacted]
Frank Arthur Hershkowitz
[email redacted]
Jim Dimond
[email redacted]
By: OAH Staff