ALJDEC

00F-F0264-ROC · Registrar of Contractors · 2000-11-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 8, 2000; 8:45 A.M.; Flagstaff, Arizona APPEARANCES: Complainants: W. Whitney Cunningham, Esq. Respondent: Gerald W. Nabours, Esq. ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr.

This is a disciplinary proceeding brought pursuant to Arizona Revised Statutes (“A.R.S.”) § 32-1154. Based upon the evidence presented at the hearing, Administrative Law Judge George A. Schade, Jr. submits this Recommended Decision and Order to the Arizona Registrar of Contractors (“Registrar”). FINDINGS OF FACT PROCEDURAL BACKGROUND 1. Complainants Mr. and Mrs. Walter entered into a written contract with Respondent Kohl Design and Construction (“Kohl”) to build a residential home. 2. Respondent Kohl holds License No. 118240, Class B, issued by the Registrar on October 24, 1996. Mr. Andrew Scott Kohl is the qualifying party and owner. 3. On February 11, 2000, Mr. and Mrs. Walter filed this complaint alleging that Kohl had failed to complete in a workmanlike manner fourteen items. 4. On March 3, 2000, Mr. Mark G. Schweiger, the Registrar’s inspector assigned to this case, made a jobsite inspection. 5. On March 16, 2000, Mr. Schweiger issued a Corrective Work Order directing Kohl to complete in a professional and workmanlike manner twelve of the fourteen items contained in the complaint. 6. On March 31, 2000, Kohl wrote a letter to Mr. Schweiger stating that Kohl would correct two of the twelve items, but Kohl “respectfully disagre[es] with your conclusions and no further corrections will be done.” 7. Kohl’s subcontractor completed those two items on March 31, 2000. 8. On April 6, 2000, Mr. and Mrs. Walter requested a hearing. 9. On June 22, 2000, the Registrar issued to Kohl Citation and Complaint No. F00-0264 alleging violations of A.R.S. §§ 32-1154(A)(1); -(A)(2); -(A)(3), namely the Registrar’s Rule R9-4-108, Ariz. Admin. Code; -(A)(7); and, -(A)(23). 10. On June 28, 2000, Kohl answered the citation and complaint. Kohl denied the allegations of the complaint. 11. On August 3, 2000, the Registrar issued a Notice of Hearing scheduling a hearing on November 8, 2000, before the Office of Administrative Hearings. 12. On November 8, 2000, a hearing was held. Mr. and Mrs. Walter testified and presented the testimony of Mr. Schweiger and of Mr. James F. Blake, a licensed general contractor. Kohl presented the testimony of Mr. Kohl and of Mr. Kevin M. Wittekind, a licensed tile contractor who installed the tile in the Master Bathroom Shower. Mr. and Mrs. Walter presented twelve exhibits that were admitted, and Kohl presented eleven exhibits that were admitted. The ALJ took official notice of procedural documents contained in the file of the Office of Administrative Hearings and of Kohl’s two-year prior disciplinary record. THE CONTRACT 13. In the spring of 1999, Mr. and Mrs. Walter and Mr. Kohl met to discuss and review designs and plans for the construction of a new house in Flagstaff, Arizona. 14. Mr. Kohl, who has an undergraduate degree in Architecture and thirty graduate credits, prepared the building plans for the house, which were submitted to and approved by the City of Flagstaff. Mr. Kohl received $1,225.00 for drawing the plans. 15. On June 9, 1999, the parties entered into a written contract for the construction of the new house. The amount of the contract was $173,400.00. 16. Kohl began construction in mid-June, 1999. 17. On September 22, 1999, the parties agreed to an addendum to the contract. This addendum increased the cost of the new house to $190,110.00 (an increase of $16,710.00). 18. On November 15, 1999, the parties agreed to a second contract addendum. This addendum increased the cost of the new house by $9,890.00 to $200,000.00. 19. The original contractual amount for “cabinetry/built-ins” remained at $9,750.00, and was not a subject of either the first or the second addenda. THE CORRECTIVE WORK ORDER 20. Mr. Schweiger’s Corrective Work Order addressed the fourteen items listed in Mr. and Mrs. Walter’s complaint. Mr. and Mrs. Walter accepted Mr. Schweiger’s determination that “no [corrective] action” was required by Kohl regarding items 3 and 13 of the complaint. 21. On March 31, 2000, Kohl’s subcontractor corrected items 12 and 14. 22. Prior to the hearing, Mr. and Mrs. Walter installed themselves the shelves in the garage, and therefore, they did not present evidence regarding item 4 of the complaint. The Corrective Work Order directed Kohl to “complete the contract bid work by appropriate means,” but Mr. and Mrs. Walter completed this work. Complainants’ Exhibit No. 1, p. 2. A. Item 1 - Backsplashes 23. Kohl installed 6” high backsplashes with a coping top in the Laundry Room because the style matched that of the wall baseboard. 24. Mr. and Mrs. Walter wanted Kohl to install smooth, 4” high, rounded backsplashes, and not backsplashes with a coping (or with “detail” or “trim”, that is, a designed top layer). After seeing the backsplashes in the Laundry Room, on January 11, 2000, Mr. and Mrs. Walter informed Mr. Kohl they would accept the backsplashes in the Laundry Room because Mr. Kohl told them they could not be removed easily as they were glued, but Mr. and Mrs. Walter informed him of their choice of smooth 4” high rounded backsplashes for all subsequent installations. 25. Thereafter, Kohl installed backsplashes with a coping in the bathroom vanities of the Master Bedroom, Guest Bedroom and Studio/Bedroom, but he installed the smooth 4” rounded backsplashes (which Mr. and Mrs. Walter wanted to have installed) in the Kitchen. 26. Mr. Schweiger directed Kohl to replace the backsplashes “by appropriate means.” Complainants’ Exhibit No. 1, p. 2. He testified that “all backsplashes should be the same” throughout the house because “consistency” of application is a minimum requisite standard of the Registrar for determining professional workmanship. B. Item 2 - Computer Alcove Built-Ins 27. At the top of the stairs, the plans show a desk with two sets of drawers on each side, two shelves above the desk, and two shelves on each side of the desk. It is not clear if the two sets of drawers on each side of the chair space are two drawers each or four small drawers. A computer monitor is drawn located on the top of the desk in the middle. It is not disputed that Kohl was not expected to provide a computer and monitor. The dispute is whether Kohl was required to build the desk, drawers and shelves or if they were shown on the plans solely for demonstrative purposes. 28. The plans do not show the dimensions of the shelves, the kind of shelves (glass, metal or wood), or whether the shelves are adjustable or stationary. 29. Kohl did not build a desk, drawers or shelves in the computer alcove, which remains empty. 30. The alcove is eight feet wide, nine feet high, and 3 ½ feet deep. 31. Mr. Kohl testified that more clarification was needed regarding the dimensions and kind of shelves before they could be installed, and further asserted that the desk, drawers and shelves were drawn for illustrative purposes. 32. Kohl installed shelves in an area of the Living Room (for the entertainment system) where the building plans show the same detail that is shown for the shelves in the computer alcove. 33. The Corrective Work Order directed Kohl to “complete the contract bid work by appropriate means.” Complainants’ Exhibit No. 1, p. 2. Mr. Schweiger concluded that the building plans and the “bid work” required the installation of these items. C. Item 5 – Lower Kitchen Cabinets 34. The building plans do not address either the material or the design of the cabinet doors and drawers in the Kitchen. 35. According to Mr. and Mrs. Walter, prior to their installation, they asked Kohl to install lower cabinets in the Kitchen (those below the counter top) that (1) were made of the same wood of which the cabinet doors were made, and (2) had a design of a recessed panel or a “picture frame look.” They showed Mr. Kohl a page from a brochure printed by Bosch, a maker of kitchen appliances.[1] The page from the brochure shows the doors and drawers of kitchen cabinets with a recessed panel or a “picture frame” design. 36. In the lower cabinets, Kohl installed drawers made of an engineered material not natural wood, and secondly, without the recessed panel or picture frame look that Mr. and Mrs. Walter wanted. All the drawer fronts of the lower cabinets are smooth. 37. There is no dispute regarding either workmanship of installation or the installations of the lower cabinet doors or the upper cabinet doors and drawers. Those other doors and drawers are acceptable to Mr. and Mrs. Walter. 38. Mr. Kohl testified that he used an engineered material for the lower cabinet drawers that would not warp as much as wood tends to warp, and secondly, that after discussions among Mr. and Mrs. Walter and Mr. Kohl, the Walters agreed that the lower drawers would not have a recessed panel. Mr. Kohl recommended that the drawers not have recessed panels. This testimony contradicts the testimony of Mr. and Mrs. Walter that they wanted all doors and drawers in the lower Kitchen cabinets to have a recessed panel and so communicated their wishes to Mr. Kohl. 39. Mr. Blake, the general contractor whom Mr. and Mrs. Walter asked to estimate the cost of complying with the Corrective Work Order, testified that the “end product,” after he installed replacement fronts for the drawers of the lower Kitchen cabinets, “will be different from the photo” in the Bosch brochure. The lower cabinets would not look exactly like those shown in the Bosch brochure. 40. Mr. Schweiger directed in the Corrective Work Order as follows: “The Kitchen cabinets do not appear to [sic] per supplied pictures, or signed agreement. Correct by appropriate means.” Complainants’ Exhibit No. 1, p. 2.

D. Item 6 – Tile in Master Bathroom Shower 41. The plans do not address the patterns for setting the tile in the Master Bathroom Shower. 42. On October 1, 1999, Mr. and Mrs. Walter discussed with Mr. Kohl the tiling of the Master Bedroom Shower. They showed Mr. Kohl pictures of shower niches or alcoves. On October 19 and 20, 1999, Mr. and Mrs. Walter had telephone conversations from Denver with Mr. Kohl regarding the Master Bedroom Shower. According to Mr. and Mrs. Walter, after discussing the selection of “Natural Hues Arctic Glazed Tile,” they informed Mr. Kohl how they wanted the tile to be set in the Shower. They had two areas in mind, namely, how the tile would be set around the alcove and how the tile would be set on the entry step leading into the Shower. 43. On December 9, 1999, Mr. and Mrs. Walter gave Mr. Kohl a handwritten note that stated in pertinent part: “8 x 8 Wall Tile 8’ High

Smaller Tile Floor

Tile Niche.” Respondent’s Exhibit No. 1, p. 3.

There was a handwritten sketch showing that the dimensions of the “niche” were to be 14 inches wide and 18 inches high 44. Mr. Kohl testified that those were the only specifications applicable to the tiling of the Shower. But Mr. and Mrs. Walter also gave Mr. Kohl (1) a photograph of the shower (“the photograph”) they had in their prior home and (2) Page J2 (“Page J2”) of the July 1998 issue of Better Homes and Gardens, a national publication devoted to residential plans, designs and decorative products.[2] The photograph showed that the tile was flushed with the niche, that is, there was no tile border around the alcove. Page J2 showed how the tile on a front entry step, similar to that in the Master Bedroom Shower, was set in a pattern that all the grout lines were straight, not staggered, up to the edges of the step. 45. Mr. Kohl did not show either the photograph or Page J2 to Mr. Kevin M. Wittekind, a licensed ceramic tile contractor whose employees laid the tile. 46. Mr. Kohl testified that Mrs. Walter had “many good ideas” and would on a frequent basis give him magazine pages showing artistic or design concepts and themes. After a while, Mr. Kohl interpreted these submissions as a “general idea” of what was desired, and he did not accept many of these pages as mandatory specifications or directives. He saw the photograph of the niche and Page J2 with this perspective, they showed a general idea of what Mr. and Mrs. Walter wanted. 47. Mr. Wittekind did not set the tile in the patterns seen on the photograph or on Page J2. The alcove in the Master Bedroom Shower has a “frame” of bordering tile, the grout lines on top of the entry step are staggered not straight, and there are borders of tile on both stepping sides of the step. Mr. Wittekind testified that his employees chose the patterns of the tile for “aesthetic reasons.” 48. Mr. Wittekind testified that the tile in the Master Bedroom Shower is larger than the tile seen in the photograph (which was 4” x 4” tile), that the space configuration of the Shower dictated how the tile was set on the walls and on the entry step so that the patterns (and grout lines) would conform, and only 4” x 8” round edge tile was available when the Master Bedroom Shower was tiled. 49. The final size of the niche was 12 inches wide and 16 inches high, not 14 inches wide and 18 inches high as originally specified. 50. Mr. Wittekind’s employees set the tile, then waited at least one day for Mrs. Walter to select and buy the grout. Mrs. Walter wanted to see how the light fell on the tile before she selected the grout color (advice she was given at the tile store). There is disagreement as to whether all the tile or just the wall tile was set in place before Mrs. Walter saw it to select the grout, but at least the wall tile was in place when Mrs. Walter inspected the work to make the grout selection. 51. There is no claim the tile was installed in an unprofessional manner. 52. Mr. Schweiger directed in the Corrective Work Order as follows: “The Master bath shower tile work does not appear patterned as depicted in the supplied picture contrary to agreement. Correct by appropriate means.” Complainants’ Exhibit No. 1, p. 2.

E. Item 7 - Master Bedroom Hinged Shelves 53. The plans show “shelves” and “storage” in the Master Bedroom near where the chimney pipe traverses through the room up to the exterior. The shelves were located in front of a storage area hence the shelves were to be hinged such that they would swing out to allow access to the storage behind the shelves. 54. The construction of the chimney pipe resulted in the pipe being moved over, which change resulted in less space remaining available for the shelves. 55. Mr. Blake estimated that the hinged shelves would be 107 inches high, 12 inches deep, and 57 inches wide. The storage area is two feet deep. 56. Kohl did not build the hinged shelves because according to Mr. Kohl, the $9,750.00 allowance for the “cabinetry/built-ins” had been exceeded at that point. 57. The contract executed on June 9, 1999, stated that “trim work and cabinetry” would begin on October 18, 1999. Complainants’ Exhibit No. 7, p. 3. The addendum executed on November 15, 1999, after Mr. Kohl indicated that certain budgets had or were being exceeded, did not provide for an increase in the costs of the cabinetry, and further stated that: “Any additional expenses incurred, above adjusted costs, by Kohl Design and Construction or any sub-contractors, prior to, or after date of addendum will be the responsibility of Kohl Design and Construction.” Complainants’ Exhibit No. 11, p.1.

58. The Corrective Work Order directed Kohl to “complete the contract bid work by appropriate means.” Complainants’ Exhibit No. 1, p. 2. This work included the installation of the hinged shelves in the Master Bedroom. F. Item 8 - Roof – Exterior Paint Over Spray 59. Kohl painted the exterior of the house. 60. Mr. Schweiger credibly testified that during his jobsite inspection he observed “easily visible” paint over spray on the shingles on the roof’s southern exposure. He testified that over spray “will wear off eventually,” but “cleanup is part of good workmanship.” In his Corrective Work Order, Mr. Schweiger directed Kohl to “[c]orrect by appropriate means” the over spray on the roof. Complainants’ Exhibit No. 1, p. 2. 61. Mr. Blake estimated that 400 square feet of over sprayed roof shingles should be replaced, but he did not consider the alternative of cleaning the shingles with chemical solvents. G. Item 9 - Powder Room Counter Top 62. The counter top of one sink in the Powder Room has a drop front. 63. On December 9, 1999, Mr. and Mrs. Walter wrote the following note to Mr. Kohl: “Curved birch counter top…Counter top next to door to be birch with slight front curve…Birch to be stained and sealed.” Complainants’ Exhibit No. 3.

64. Subsequently, around January 14, 2000, but prior to February 7, 2000, when Kohl installed the counter top, Mr. and Mrs. Walter gave Mr. Kohl a drawing of the counter top in the Powder Room. The drawing indicated in pertinent part: “Counter top: birch w/ birch edging (1½” to 2”) rounded edges.” Complainants’ Exhibit No. 4.

65. Regarding this item, the Corrective Work Order directed Kohl to “correct by appropriate means.” Complainants’ Exhibit No. 1, p. 2. In Mr. Schweiger’ opinion, the workmanship of the installation was “adequate,” and the only complaint issue was the deviation from the owners’ specifications. H. Item 10 – Studio/Bedroom Shelves Above Sink in Wet Bar Area 66. The plans show three shelves above the sink of the wet bar in the Studio/Bedroom. The plans show four right to left slash lines, which could be interpreted to mean that the back wall of the wet bar area would be covered with glass. The plans do not, however, show the dimensions of the shelves, the kind of shelves (glass, metal or wood), or whether the shelves are adjustable or stationary. 67. According to Mr. and Mrs. Walter, they discussed with Mr. Kohl the installation of shelves above the sink of the wet bar, and the Walter’s understanding was that glass shelves would be installed. 68. Mr. Blake’s estimate for the completion of this item consisted of the installation of two glass shelves at a cost of $157.67. Therefore, the factual conclusion is that Mr. and Mrs. Walter will be satisfied with the installation of two glass shelves above the sink of the wet bar. 69. Kohl did not install any shelves for the wet bar. 70. Mr. Kohl testified that the installation of shelves in this area was not fully discussed, and further clarification - such as dimensions and kind of shelves - was needed to determine what kind of shelves were to be installed. 71. Mr. Schweiger covered this item in the Corrective Work Order under the directive to Kohl to “complete the contract bid work by appropriate means.” Complainants’ Exhibit No. 1, p. 2. He concluded that the plans required the installation of shelves above the sink. I. Item 11 - Mobile Closet in Studio/Bedroom 72. The plans show a “closet” in the Studio/Bedroom. According to Mrs. Walter, the closet was planned to be mobile, that is, that it could be rolled on wheels. 73. Kohl did not build a mobile closet for the Studio/Bedroom. 74. Mr. Kohl credibly testified that although a mobile closet was incorporated in the plans, the purpose of the mobile closet’s depiction on the plans was to show the Studio/Bedroom as a bedroom for purposes of construction financing, as a closet is needed for a qualifying bedroom. He testified there “never was an intent to build the closet,” and Kohl never charged for the construction of a mobile closet. THE PROPOSAL TO COMPLETE THE CORRECTIVE WORK 75. Mr. Blake, a licensed general contractor, reviewed the Corrective Work Order and visited Mr. and Mrs. Walter’s house to obtain an estimated cost for completing all the corrective items. He estimated that the cost of completing the ten items contained in the Corrective Work Order, after excluding the two items Kohl completed on March 31, 2000, was $6,302.00. 76. Mr. Blake’s estimate is based on certain assumptions and interpretations of the building plans. For example, Mr. Blake assumed that the shelves in the computer alcove would be adjustable, and he planned four shelves. The plans do not show four shelves. He also estimated the cost of replacing approximately 400 square feet of roof shingles. The alternative of cleaning the shingles with solvents was not cost estimated. The estimate, however, gives a reasonable idea of the costs that would be incurred in completing the corrective work. KOHL’S PRIOR DISCIPLINARY RECORD 77. The records of the Registrar show that during the past two years one complaint, which is this complaint, has been filed against Kohl. CONCLUSIONS OF LAW APPLICABLE STATUTES AND RULES A. R. S. § 32-1154(A) provides in the pertinent subsections: “A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

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 appropriate 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 a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held pursuant to the provisions of this article.” Rule R4-9-108(A), supra, states, “All work shall be performed in a professional and workmanlike manner.” CONCLUSIONS OF LAW 1. Complainants have the burden of proof, and the standard of proof on all issues is the preponderance of the evidence.[3] A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 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.”[5] 2. The preponderance of the evidence does not establish that Kohl violated A.R.S. § 32-1154(A)(1). The evidence does not support a conclusion that Kohl abandoned the contract or refused to perform “without legal excuse.”[6] Disagreements arose between the parties as to the scope of their contract as construction proceeded. The nature of these disagreements was such that it cannot be concluded that Kohl abandoned the project or refused to perform without legal excuse. 3. Kohl violated A.R.S. § 32-1154(A)(2) as there were several material deviations from either the building plans or Mr. and Mrs. Walter’s expressed specifications, that were done without the Walter’s prior consent, with resulting prejudice to the enjoyment of their new house. First, backsplashes with coping were installed in the bathroom vanities of the Master Bedroom, Guest Bedroom and Studio/Bedroom contrary to Mr. and Mrs. Walter’s specifications and without their consent (Item 1). The backsplashes in these three rooms are different from those installed in the Kitchen, and although they differ from those in the Laundry Room, Mr. and Mrs. Walter accepted the backsplashes in the Laundry Room. Second, the desk, drawers and shelves designed for the computer alcove and shown on the building plans were not built (Item 2). The building plans, which Mr. Kohl prepared, show these items. The contention that these depictions were for illustrative purposes has no merit. These are building plans that were going to be, and were in fact, submitted to the City of Flagstaff for its approval. The desk, drawers and shelves in the computer alcove were not minor in scope. It is not credible to believe that these items were depicted solely for illustrative purposes. Third, the building plans called for the construction of shelves in the Master Bedroom that would swing out in order to access the storage area (Item 7). The contention that these shelves were shown on the plans for illustrative purposes has no merit. In the November 15, 1999, contract addendum, Kohl agreed to be responsible for “Any additional expenses incurred, above adjusted costs, by Kohl Design and Construction or any sub- contractors, prior to, or after date of addendum.” Complainants’ Exhibit No. 11, p.1. The fact that the budget for the “cabinetry/built-ins” had been exceeded was not a legal reason not to build the hinged shelves in the Master Bedroom. Fourth, Mr. and Mrs. Walter informed Mr. Kohl of the kind of counter top they wanted installed in the Powder Room prior to the installation of the existing counter top (Item 9). A drop front counter top is different from one with rounded edges. The drop front counter top was installed without the prior consent of Mr. and Mrs. Walter. Fifth, the plans show that at least three shelves of some kind were to be installed above the sink in the wet bar in the Studio/Bedroom (Item 10). If no shelves were to be installed, the plans, which Mr. Kohl prepared, should not have shown shelves. Again, the contention that these shelves were shown on the plans for illustrative purposes has no merit. Mr. and Mrs. Walter will be satisfied with two glass shelves. 4. The preponderance of the evidence does not show that Kohl violated A.R.S. §§ 32-1154(A)(2), -(A)(3), or -(A)(7) regarding the installation of the drawers of the lower Kitchen cabinets (Item 5), the setting of the tile in the Master Bathroom Shower (Item 6), or the construction of a mobile closet in the Studio/Bedroom (Item 11). The testimony of the parties regarding the selection of smooth drawers for the lower Kitchen cabinets rather than drawers with a recessed panel is conflicting. Although the parties conferred regarding the Kitchen cabinets, their recollections are strikingly different. Further, Mr. Blake testified that his “end product” would not look like the drawers in the Bosch brochure, raising the possibility that the lower cabinets depicted in the brochure might never be matched. As the main thrust of this complaint item was the design appearance of the drawers, the inability to match the desired look may not make this item fully remediable. But more important, is the determination that assuming for the sake of argument that Kohl deviated from the specifications desired by Mr. and Mrs. Walter, the deviation is neither “material” nor “prejudicial” as those terms are central to a violation of A.R.S. § 32-1154(2). Black’s Law Dictionary defines “material” to mean “important; more or less necessary; having influence or effect; going to the merits; having to do with matter, as distinguished from form.”[7] The term “prejudicial” means that the homeowners were affected to their “disadvantage or detriment,”[8] or were damaged by the deviation. The evidence presented does not show that the cabinet drawers do not function as intended, that their appearance is unreasonably unattractive, that their look disrupts or shocks the Kitchen’s decorative scheme, that they violate any applicable building codes, or that the selection of manufacturing materials is below minimum standards. All the lower cabinet drawers are consistent in appearance. There is no evidence showing that the workmanship of installation is unprofessional. Lastly, there is an assertion that the engineered material may be better than wood for resisting warping. It cannot be reasonably concluded that a deviation, assuming one exists, is either material or prejudicial to Mr. and Mrs. Walter, within the meaning of A.R.S. § 32-1154(A)(2). For this same reason, it cannot be concluded that Kohl violated A.R.S. § 32-1154(A)(2) for the manner in which the tile in the Master Bedroom Shower was set (Item 6). The claimed deviations from Mr. and Mrs. Walter’s directives are neither sufficiently “material” nor “prejudicial” to constitute a violation of A.R.S. § 32-1154(2). The size of the tiles complied with Mr. and Mrs. Walter’s specifications, the space of the shower dictated the choice of tile patterns, some specific size tiles were not available, and the appearance of the tile is not shockingly unattractive. There is no evidence that the installation of the tile violates any applicable building codes. The reduced size of the alcove is not a material deviation that prejudices Mr. and Mrs. Walter. Lastly, there is no claim that the work was unprofessionally done. Careful thought was given to this item as a determination was being made. Mr. and Mrs. Walter’s desires to have what they wanted and what they saw in a custom home magazine are compelling. It is their home. But the standards applicable in this proceeding before the Registrar are whether the claimed deviations are both “material” and “prejudicial” to the homeowners. The preponderance of the evidence says “no” to both questions. These parties are currently involved in civil litigation arising from the facts surrounding this complaint and citation.[9] Whether Kohl is civilly liable or responsible for these asserted deviations from specifications are issues that are best resolved in a judicial forum and not within the framework of this disciplinary proceeding. A judicial forum offers a venue where issues such as these can be addressed and determined. The office of the Registrar is not a court of law. The Registrar does its commendable utmost to resolve fully all complaints, but its statutes limit the Registrar’s authority to dispose with finality all contractual and construction disputes. Although the plans show a mobile closet, the preponderance of the evidence is that the closet was not going to be built by Kohl, and the parties understood this point. 5. Kohl violated A.R.S. § 32-1154(A)(3). The Registrar is charged with determining workmanship of construction, or whether a licensed contractor performed “in a good workmanlike manner and in a manner befitting a skilled contractor.”[10] Kohl did not complete two items in a professional and workmanlike manner. The installation in three rooms of backsplashes that are not consistent with those installed in two other rooms (Item 1) and the failure to clean exterior paint over spray on the roof (Item 8) show a lack of professional workmanship. Consistency of application and a clean final appearance are part of the Registrar’s minimum standards for determining professional contracting workmanship. 6. The preponderance of the evidence does not show that Kohl violated A.R.S. § 32-1154(A)(7). Its failure to complete certain items in a workmanlike manner does not reach the level of “wrongful” acts or omissions that have “substantially injured” Mr. and Mrs. Walter.[11] Black’s Law Dictionary defines “substantial” as meaning “of real worth and importance; of considerable value; valuable.”[12] The estimated cost of compliance with this recommended decision ($2,753.53 including the estimate to replace, and not simply clean, 400 square feet of roof shingles), using Mr. Blake’s estimate as a yardstick ($6,302.00), is less than 1.4% of the total construction cost ($200,000.00),[13] not a substantial percentage. On a few occasions during the hearing, the parties expressed satisfaction with the overall level of Kohl’s workmanship. The Administrative Law Judge saw the photographs that were admitted into evidence. Some photographs show visually attractive good workmanship. 7. The preponderance of the evidence does not show that Kohl violated A.R.S. § 32-1154(A)(23). Kohl addressed two items in a timely manner, reasonably believed there was “valid justification” not to complete the other items, and timely informed Mr. Schweiger of this position. Kohl understood the importance of complying with the Corrective Work Order. 8. The Registrar “may temporarily suspend, with or without imposition of specific conditions” a contractor’s license for violations, by acts or omissions, of any of the provisions of A.R.S. § 32-1154(A).[14] The evidence supports a conditional suspension of Kohl’s License No. 118240, Class B.

RECOMMENDED ORDER

It is recommended that the Registrar: 1. Suspend Kohl’s License No. 118240, Class B, unless and until the Registrar receives written notification, on or before the effective date of the Registrar’s order, stating that Kohl has completed, or has caused to be completed through other licensed contractors, in a professional and workmanlike manner, the following items: a. Item 1. Remove the existing backsplashes in the bathroom vanities of the Master Bedroom, Guest Bedroom and Studio/Bedroom and replace them with smooth, 4” high, rounded backsplashes that match those in the Kitchen. The existing backsplashes in the Laundry Room do not need to be replaced. b. Item 2. Install the desk, drawers and shelves in the computer alcove as shown on the building plans and as reasonably clarified with Mr. and Mrs. Walter. The completion of this item will require the parties to confer and clarify, but the building plans shall control the corrective work. c. Item 7. Complete the construction of the hinged shelves in the Master Bedroom in accordance with the building plans and existing space limitations and as reasonably clarified with Mr. and Mrs. Walter. The completion of this item will require the parties to confer and clarify, but the building plans shall control the corrective work. d. Item 8. Clean the paint over spray on the roof with chemical solvents to the best attainable clean condition. e. Item 9. Remove the existing drop front counter top in the Powder Room and replace it with a birch counter top with birch edging (1½” to 2”) rounded edges, with the birch to be stained and sealed. f. Item 10. Install two glass shelves above the sink in the wet bar area as reasonably clarified with Mr. and Mrs. Walter. 2. Close Citation and Complaint No. F00-0264, if these corrective actions are completed as directed by the Registrar. SUBMITTED this 22d day of November, 2000.

George A. Schade, Jr. Administrative Law Judge

The original Recommended Decision and Order of the Administrative Law Judge was mailed on November 24, 2000, for distribution to the parties, to:

Michael P. Goldwater Arizona Registrar of Contractors 800 West Washington, 6th Floor Phoenix, Arizona 85007

George A. Schade, Jr. ----------------------- [1] There is no allegation that the cabinets were supposed to be Bosch products. Bosch sells kitchen appliances, and the brochure shows a kitchen with Bosch appliances. The cabinets shown on the page are incidental to the main objective of marketing Bosch appliances. [2] Official notice is taken of this factual observation. See A.R.S. § 41- 1092.07(F)(3). [3] Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996); Rule R2-19- 119, supra. [4] Morris K. Udall, Arizona Law of Evidence, § 5 (1960). [5] BLACK’S LAW DICTIONARY 1182 (6th ed. 1990). [6] A.R.S. § 32-1154(A)(1). [7] BLACK’S LAW DICTIONARY 976 (6th ed. 1990). [8] Webster’s Encyclopedic Unabridged Dictionary 1135 (1989). [9] As promised, the Administrative Law Judge expedited this matter so that this recommendation is available to counsel in time for the upcoming arbitration. [10] Reliable Electric Co. v. Clinton Campbell Contractor, Inc., 10 Ariz. App. 371, 374, 459 P.2d 98 (1969); see J. W. Hancock Enterprises, Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (1980); A.R.S. § 32-1154(A)(3); Rule R4-9-108(A), supra. [11] A.R.S. § 32-1154(A)(7). [12] BLACK’S LAW DICTIONARY 1428 (6th ed. 1990).

[13] Compliance with all the terms of the Corrective Work Order would be less than 3% of the total cost of construction. [14] A. R. S. § 32-1154(B).

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