ALJDEC

00F-2050-ROC · Registrar of Contractors · 2000-11-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 25, 2000. APPEARANCES: COMPLAINANT: by Ron Moen, on his own behalf. RESPONDENT: by Tom Brown (sole proprietor), with witness Paul Williams, and Lisa Ward.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors. Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Complainant Ron Moen (Moen) owns and resides at 38470 North 101st Street, in Scottsdale, Arizona. 2. Respondent Thomas Brown (Brown) is a sole proprietor who holds Arizona Contractor’s License No. 123724, Class C-61, doing business as TB Carpentry. The license was issued by the Registrar of Contractors (Registrar) on May 6, 1997. 3. In about February, 1999, Moen contracted to have Brown complete certain finish carpentry at the residence, some of which had been begun by a prior contractor.

Initially, the verbal agreement was for the installation of cabinetry, and later, after ongoing discussion, the parties also agreed to have Brown order and install custom cabinet doors. On this record, it is not possible to determine the specific total contract price charged or paid, or the extent to which there was a meeting of the minds on other specific work to be completed by Brown’s company. 4. On February 1, 2000, Moen filed a complaint with the Registrar of Contractors based on six general allegations: #1). Delay in the completion of the work; #2). Poor workmanship and errors due to lack of supervision;

#3). Cabinet work incomplete with uncorrected errors; #4). Missing cabinet doors and others which did not fit; #5). Contractor’s use of collection agency adversely affected Complainant’s credit rating, despite incomplete/uncorrected work; and, #6). Contractor refused to disclose name of cabinet door maker so Moen could correct and proceed on his own.

5. As a result, the Registrar’s Inspector Bob Davies conducted a jobsite inspection on March 13, 2000, with Moen present (no one appeared for Respondent, although both parties were later present for an inspection by Davies on October 25, 2000, the day before this hearing). 6. Based on his findings and conclusions, Inspector Davies then issued a Corrective Work Order (CWO) on March 17, 2000, addressing the original six areas of complaint, and particularly subdividing Complaint #2 into 14 subheadings relative to observable workmanship deficiencies which he concluded required appropriate corrective action. The inspector did not require action relative to Complaints #1 and #5; but did direct that Respondent comply with any legally binding contracts relative to Complaint #3 (completion of the cabinet work and correction of errors); and that the contractor correct Complaint #4 by appropriate means (the missing cabinet doors and those that did not fit); and that the contractor address Complaint #6 by providing the name of his cabinet door maker to Complainant. 7. When the matter was not resolved administratively, due in significant part to questions of scheduling and access, the Registrar then issued CITATION AND COMPLAINT in Case No. 00-2050 to Respondent on June 28, 2000, charging possible violations of A.R.S. §§ 32-1154.A.3 (and A.A.C. R4- 9-108, the workmanship rule), A.7, and A.23. 8. Brown timely filed his written answer with the Registrar on July 13, 2000. 9. The matter was therefore set for hearing, at which time Moen appeared, testified, and offered 17 photographs as Exhibit A (of which A/8 and A/9 were agreed to be irrelevant, such that A/1 - A/7, and A/10 - A17 were admitted, without objection). Brown also appeared and testified, and offered the testimony of his former employee, Paul Williams. Inspector Davies also provided testimony relative to his jobsite inspections on March and October 25, 2000, and the conclusions upon which his based the Corrective Work Order. 10. Based on the testimony and evidence presented, the undersigned finds that Respondent had full opportunity to inspect the work accomplished by the prior contractor before bidding and performing its own work, such that Respondent accepted the work previously done without any written disclaimer to the contrary, therefore assumes responsibility for the workmanship of the completed work as a whole. 11. It is further apparent to the undersigned, and therefore so found, that certain matters raised in the initial complaint are no longer considered to be at issue by Complainant Moen, either because he has deemed them moot for purposes of this proceeding (Complaint #1 and Complaint #5), or because they have been or will be resolved separately (Complaint #2 Items 5 and 7). 12. Those matters remaining at issue relative to the multiple items of Complaint #2 generally involve workmanship and/or completion, and are referenced consistent with the CWO: A. Complaint #2, Item 1. Uneven and wavy bottom edge of some upper cabinets. This result occurred based on Respondent’s efforts to sand the bottom edge to create a “radiused” effect to satisfy Complainant, but which also caused loss of veneer. Respondent conceded this problem required attention, but not to the extent additional problems would be created. Paul Williams credibly testified to explain his particular work on these cabinets as Respondent’s employee, with his work based on his understanding of, and attempt to satisfy, Complainant’s desires relative to the cabinet edge. Nevertheless, the undersigned finds that further corrective action is required by Respondent in order to meet minimal standards of workmanship. B. Complaint #2, Item 2. Height differential of ¾” between base cabinets on either side of washer and dryer. Respondent stated that he understood these cabinets were to be topped with laminate, but that Complainant later changed to a granite top. The undersigned finds that further corrective action is required by Respondent in order to meet minimal standards of workmanship. C. Complaint #2, Item 3. Access hole to dead space in wet bar. Respondent did not dispute that this had not been finished. Therefore, the undersigned finds that further corrective action is required by Respondent in order to meet minimal standards of workmanship. D. Complaint #2, Item 4. Bathroom face frame rails not flush or finished. Respondent noted that the prior contractor “left much to be desired in failing to accomplish its work as plumb, level and true”, such that Respondent emphasized to its workers that its work be plumb and true. Nevertheless, despite contending that his company was not responsible for this problem, Respondent thought it could be remedied with use of a dark latex caulk. The undersigned finds that further corrective action is required by Respondent in order to meet minimal standards of workmanship, notwithstanding that this particular work may have been accomplished at least in part by the prior contractor. E. Complaint #2, Item 6. Breakfast room upper cabinets not centered on wall and out of level at left end. Complainant stated that centering was no longer an issue as long as the doors could be moved to accommodate. Respondent noted that the prior contractor had used a particular hinge that might limit adjustment, but thought Complainant’s concern could be accommodated. The undersigned finds that further corrective action is required by Respondent in order to meet minimal standards of workmanship to accommodate moving the doors and to establish level at the left end. F. Complaint #2, Item 8. Some cabinet screws do not have buttons installed. Respondent confirmed that this item could be quickly completed; therefore, the undersigned finds that further corrective action is required by Respondent in order to meet minimal standards of workmanship. G. Complaint #2, Item 9. Holes in lazy-susan cabinet. Respondent confirmed that this item could be quickly completed with white buttons; therefore, the undersigned finds that further corrective action is required by Respondent in order to meet minimal standards of workmanship. H. Complaint #2, Item 10. Breadboards not installed. Respondent stated that the breadboards provided by Complainant did not work as he wished, so Respondent took them back without charge. Complainant stated that the breadboards were to be installed per Respondent’s idea, but were too thick such that Respondent said they would be remade thinner. The undersigned finds that the evidence on this item is insufficient to require completion or corrective action by Respondent. I. Complaint #2, Item 11. Rough solid wood panel on west wall of pantry. Respondent thought this item had been addressed by sanding and was no longer an issue, but did not dispute responsibility. To the extent additional correction is necessary, the undersigned finds that Respondent shall accomplish same in order to meet minimal standards of workmanship. J. Complaint #2, Item 12. Split on top shelf to right of fireplace. Respondent stated this would require only a relatively minor glue repair. Complainant stated, and Respondent concurred that this is a solid wood product, not a veneer. The undersigned finds that further corrective action is required by Respondent in order to meet minimal standards of workmanship. K. Complaint #2, Item 13. TV shelf not installed. Respondent contended that Complainant’s subsequent choice of stereo equipment had rendered this installation more difficult than planned, but expressed optimism that it could be resolved. The undersigned finds that further corrective action is required by Respondent in order to meet minimal standards of workmanship. L. Complaint #2, Item 14. Scribe molds not installed at entertainment center. Respondent stated that such molding was appropriate but not as its responsibility since it had not been part of the agreements made by the parties. The undersigned finds that the evidence on this item is insufficient to require completion or corrective action by Respondent. 13. In consideration of Complaint #3, and the Registrar’s CWO directive that Respondent contractor comply with any legally binding contracts, there was no particular testimony or evidence presented sufficient to form the basis for any further findings or conclusions. Therefore, no further action is required of Respondent on this issue in this proceeding. 14. Complaint #4, cabinet doors are missing and many do not fit, and Complaint #6, the name of the cabinet door maker, are interrelated. Complainant contends, based on contemporaneous observation by himself and his wife, that many cabinet doors ordered through Respondent’s cabinet maker - and for which Respondent was paid - were never delivered on site, and that others do not fit, such that Respondent should provide replacements or refitting through its source. In the alternative, if Respondent is not required to do so, then Complainant further contends he should at least be provided the name of the cabinet maker used by Respondent in order to proceed, since the doors in question are custom made and would otherwise be difficult to match. 15. Respondent contends, by reference to his own best recollection and certain production and delivery documents, that all doors ordered and paid for were delivered on-site, and disappeared thereafter, such that the responsibility to complete should be Complainant’s. Respondent did not specifically dispute that certain of the cabinet doors did not fit, subject to his further inspection. However, Respondent vigorously urged that the name of his cabinet maker not be disclosed, given the relationship he had established with the man on a strictly wholesale basis, and his understanding that this cabinet maker simply would not deal with any retail trade. (The undersigned notes that In order to resolve Complaint #6, Respondent did reasonably and appropriately express willingness to act as the go-between between Complainant and the cabinet maker, no matter who was determined responsible for completion and correction of Complaint #4). 16. The evidence and essentially credible testimony from both Complainant and Respondent relative to responsibility for the missing and mis-fit cabinet doors of Complaint #4 is difficult to decipher with any specificity. However, upon close consideration of the record, and the several ongoing unwritten but operative agreements between the parties, the undersigned finds that a preponderance of the evidence does establish that Respondent remains responsible for the missing and mis-fit doors. Therefore, the undersigned finds that further action is required by Respondent, through his cabinet maker, to complete and correct the cabinet doors in order to meet minimal standards of workmanship.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with possible violations of A.R.S. § 32-1154.A.3 (and A.A.C. R4-9-108, the workmanship rule), A.7, and A.23. Those statutory sections require that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar. … 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 23. Failure to take corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar.

A.A.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. § 32-1154.A.3. That rule provides that all work shall be done in a professional and workmanlike manner, and in accordance with any applicable building codes and professional industry standards.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent license- holder violated any one of the statutory sections cited. Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994. It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. There is no doubt that over time subsequent to the Registrar’s CWO, the parties were presented with scheduling and access difficulties which essentially resulted in an impasse relative to the completion of further work, certain of which Respondent has acknowledged as its responsibility. For that reason, the undersigned concludes that the evidence does not demonstrate any violation by Respondent of A.R.S. § 32- 1154.A.23, failure to take corrective action without valid justification. 4. The undersigned further concludes, given the essentially unwritten contractual relationship between the parties, and prior involvement by another contractor - and notwithstanding Respondent’s acceptance of that contractor’s work without disclaimer - that the evidence also does not establish violation by Respondent of A.R.S. § 32-1154.A.7, wrongful or fraudulent acts. 5. However, it is found, as delineated above in Finding of Fact 12, subsections A, B, C, D, E, F, G, I, J, and K, and Finding of Fact 16, and concluded that Respondent has violated A.R.S. § 32-1154.A.3, and A.A.C. R4- 9-108, the workmanship rule, such that further work is required to correct and/or complete those items specified. 6. Relative to that conclusion, it is noted that the Registrar of Contractors cannot order a trespass to provide a contractor access to perform required corrective action, but there is no reason evident in this record to depart from the long-standing policy of the Registrar to allow a licensed contractor a reasonable opportunity, after a hearing, to complete and correct any determined deficiency in its work. 7. For that reason, it is incumbent on both parties to seek in good faith the scheduling of reasonable and timely access for Respondent to accomplish that remedial work prior to the imposition of any disciplinary penalties by the Registrar. Should there be an unreasonable refusal to allow the work to go forward by means and methods of the contractor’s choice reasonably directed to meet the standards of workmanship mandated by the Registrar, then in such an event, such refusal may be deemed tantamount to Respondent’s compliance with the necessary corrective action.

RECOMMENDED DECISION On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order entered in this matter (thirty- five days after issuance), that the Class C-61 license of Respondent be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate action to complete and correct those items determined above in Conclusion of Law 5. IT IS FURTHER RECOMMENDED that if Respondent accomplishes the required work on or before the effective date of the Registrar’s Order, or is unreasonably denied access for such purpose, the above license suspension shall not take place. Done this day, November 15, 2000.

______________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater Attn: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826