ALJDEC

01F-A0224-ROC · Registrar of Contractors · 2001-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 19 and 20, 2001 APPEARANCES: Willard and Patricia Detwiler on their own behalf; Jack Ballatore on behalf of Respondent ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. Willard and Patricia Detwiler (“Complainants”) entered into a contract with TLC Construction (the “Contract”) for construction of a custom home in Prescott, Arizona (the “Home”). As part of the Contract, TLC Construction accepted a proposal submitted by Old Fashion Cabinetry, Inc. for fabrication and installation of cabinets throughout the Home. 3. The above-mentioned proposal was accepted by TLC Construction. Complainants are the intended third party beneficiary of the Contract. 4. It is undisputed that Old Fashion Cabinetry, Inc. is not a licensed contractor but a manufacturer of cabinets. Ballatore Development LLC (“Respondent”) is a licensed contractor that installs cabinets 5. Both Old Fashion Cabinetry, Inc. and Respondent are owned and operated by Jack Ballatore (“Mr. Ballatore”) and his wife.

6. Complainants, and not TLC Construction, selected Old Fashion Cabinetry, Inc. 7. Mr. Ballatore testified that Old Fashion Cabinetry, Inc. contracted with Respondent for the installation of the cabinets in the Home. 8. The Contract incorporates notes and drawings provided by Complainants’ interior designer, Kim McClain (“Ms. McClain”). 9. Complainants contend that Respondent did not complete the above- mentioned project in a timely manner, that Respondent’s delay caused a delay in the construction of the Home, that Respondent has not completed the work it was contracted to perform, and that numerous deficiencies in workmanship exist. 10. The actual terms of the Contract were disputed by the parties during the hearing. It appears that some of the terms of the Contract were verbal. 11. The evidence presented concerning the verbal terms of the Contract was conflicting to the extent that the Administrative Law Judge has no reason to disbelieve the testimony presented by either party. Consequently, with respect to any verbal terms of the Contract asserted by Complainants, it is determined that the preponderance of the evidence did not establish such terms as being part of the Contract. 12. The above-mentioned contractual relationship was very lax and it does not appear that adequate supervision or control of the project was maintained. However, Respondent did not effectively communicate with either TLC Construction or Complainants about the work to be performed. 13. Complainants complicated the contractual process by having Ms. McClain deal with Respondent and by Complainants undertaking to deal directly with Respondent rather than TLC Construction regarding workmanship issues. 14. It is determined that the breakdown in the above-mentioned contractual relationship was due to the manner and method in which Respondent, TLC Construction, and Complainants conducted themselves in this business venture. 15. Complainants contended and testified that in obtaining proposals from cabinet subcontractors for submission to TLC Construction, Complainants provided a list of minimum requirements to be considered in the submission of proposals. Respondent did not dispute or refute such assertion or evidence. 16. Because Complainants were unhappy with Respondent’s work and attitude, Complainants filed a complaint with the Registrar of Contractors against Respondent, consisting of a typed complaint and a handwritten itemized list (a copy of which is attached and incorporated herein), alleging numerous workmanship issues. 17. Subsequent to the filing of the complaint, Registrar of Contractors Inspector Mark Schweiger was assigned to perform a jobsite inspection of the Home. Complainants and Mr. Ballatore were present at the jobsite inspection which occurred on January 5, 2001. 18. As a result of the jobsite inspection, Inspector Schweiger issued a Corrective Work Order, referencing the items set forth in the typed written complaint and addressing items in an itemized written complaint. 19. The Corrective Work Order required Respondent to perform certain remedial work within fifteen calendar days of its issuance. 20. Inspector Schweiger found Complaint Items numbered 1, 2 ,4, 7 ,8, 12, 16, 17, 27, 30, 31 and 33-42 did not meet minimum workmanship standards. Inspector Schweiger also found work performed by Respondent with respect to the following items to not meet minimum workmanship standards: a) Laundry- Item 3, b) Master bathroom Items 3 and 4; and c) Gaps exist at the top and bottom of upper cabinets. 21. Inspector Schweiger also found that the laundry room cabinet door, replaced and installed by Respondent, was installed in a manner different than the original installation. Additionally, the hinges utilized by Respondent in the installation of the cabinet door was different than the hinges Respondent used for the other cabinet doors. Inspector Schweiger determined that such work did not meet minimum workmanship standards. During the hearing, Respondent represented that it would reinstall the cabinet door like the original installation and that Respondent would replace the existing hinges on that door with spring loaded hinges that match what Respondent had previously installed. 22. Inspector Schweiger testified that, in his opinion, the workmanship issues noted during the jobsite inspection have not changed, except with respect to the warming drawer. Based upon a later inspection, which is addressed below, Inspector Schweiger is now of the opinion that the installation of the warming drawer does not meet minimum workmanship standards. 23. The weight of the credible evidence established that the items listed in the Corrective Work Order, which Inspector Schweiger determined required remedial work by Respondent, constitute work that did not meet minimum workmanship standards. 24. Inspector Schweiger performed a pre-hearing inspection of the Home on July 17, 2001. During that inspection, Inspector Schweiger noticed that a false frame had been installed in the warming drawer and that the appliance protruded about ¾” from the cabinet frame. Inspector Schweiger reviewed the instructions for the warming drawer and concluded that the appliance was not installed per manufacturer instructions. 25. During the hearing, Respondent and Complainants presented evidence establishing that since issuance of the Corrective Work Order, no work has been performed by Respondent. 26. Mr. Ballatore testified that because Complainants continued to complain to Respondent about workmanship issues and continued to request that Respondent repair items that Respondent had already addressed, Respondent did not comply with the Corrective Work Order. 27. During his testimony, Mr. Ballatore represented that this is the first time Respondent has been involved in an administrative hearing before the Registrar of Contractors and he is unfamiliar with the process. However, Mr. Ballatore recognized that Respondent should have attempted to perform repairs with respect to those items not disputed by Respondent. 28. Notice is taken of the Registrar of Contractors’ licensing records regarding the Respondent, showing that recent disciplinary action has been imposed against Respondent’s license. That record is considered in aggravation in determining what disciplinary action, if any, should be recommended by the Administrative law Judge with respect to Respondent’s license. 29. During the hearing, Respondent represented that it was willing to perform remedial work with respect to the following in Complainants’ itemized list: Items numbered 1, 2, 4, 7, 11, 27, 30, and 33 through 42, Master Bath Items 3, 4, and 5, and Laundry Items 1, 3 and 4. Therefore, the evidence of record established that with respect to such items, they are deficiencies which do not meet minimum workmanship standards. 30. Complainants represented that Items numbered 5, 6,12, 13, 14, 15, 18, 19, 21, 23, 24, 25, 29, and Laundry-Items 2 ,and 5 no longer require corrective work, were addressed by Respondent, or are no longer at issue. 31. Consequently, based on the above, the only items in dispute are Complaint Items numbered 3, 8, 9, 10, 16, 17, 20, 22, 26, and 28. Additionally, the following items are items complained of in the typed written complaint which were also at issue: a) Cabinet for the water and recycle containers are on the wrong side of the island; b) Warming drawer installed incorrectly (also item 20 on itemized list); No plastic inserts for silverware and utensils; d) Openings at the top and bottom of cabinets were not closed and repair work is shoddy; and e) Corbels and overlay not installed. 32. Complainants requested but have not received plans from Respondent. Inspector Schweiger testified that it is standard industry practice to have specified plans when custom cabinets are being fabricated and installed. 33. The Contract contemplates the use of plans by Old fashion Cabinetry, Inc. It is not unreasonable for Complainants to request and obtain the plans. 34. Because Old Fashion Cabinetry, Inc. and Respondent are owned and operated by the same person, Mr. Ballatore, it is determined that both entities share the responsibility of providing the plans. 35. During the hearing, Mr. Ballatore testified that plans were prepared but that he could not locate them. Therefore, Respondent did not produce the plans requested by Complainants in a Subpoena Duces Tecum. Although Respondent asserted during the hearing that it could not locate the plans, during the hearing Respondent was able to produce one plan, which was not provided to Complainants. 36. The Administrative Law Judge is not convinced that Respondent diligently reviewed its business records in order to comply with the Subpoena Duces Tecum as evidenced by the fact that Respondent was able to produce one plan during the hearing. This lack of attention with respect to the Subpoena is also reflected in the attitude and work Respondent performed at the Home. Although Respondent represented during the hearing that it was willing to perform certain remedial work, it did not attempt to comply with any portion of the Corrective Work Order. 37. Complainants and Inspector Schweiger credibly testified as to the deficiencies noted above. 38. Set forth below are the remaining items specified in the itemized list which the Administrative Law Judge finds Respondent not responsible to correct for the reason that such items were not specifically addressed in the notes or drawings provided by Ms. McClain, that Respondent has performed according to the Contract, and/or that there was insufficient evidence to establish that such items were part of the Contract. a) Item 3- Staggered pot shelf; b) Item 10-No shelves under sink c) Item 22-Cabinet by refrigerator not closed off on top or bottom; d) Item 26-Television does not fit under cabinets near wall; e) Item 28-Top drawer in master bathroom is missing; f) Master bath-Item 1-No shelves under sink; and g) Baths-Item 2-No shelves in guest or master bathroom cabinets. 39. Items 8, 9,16, and 17 pertain to marks which were shown to exist which Respondent is responsible to correct. 40. With respect to the warming drawer, Inspector Schweiger testified that there appears to be sufficient space to install the warming drawer in a different manner so that it fits flush with the cabinets. 41. Al Olkowski (“Mr. Olkowski”), who has worked fabricating and installing cabinets for approximately 40 years, testified on behalf of Respondent. Mr. Olkowski’s testimony differed than Inspector Schweiger concerning whether there exists sufficient room to install the warming drawer differently so that it does not jut out. According to Mr. Olkowski, the warming drawer is installed in accordance with industry standards. However, Mr. Olkowski conceded that Respondent needed to have the dimensions of the bun warmer prior to fabricating the island and drawer and Respondent could have made the cabinet deeper, so that the appliance face did not jut out excessively. 42. Although Mr. Olkowski testified that the installation was appropriate and within industry tolerances, the weight of the evidence established that Respondent had the exact dimensions of the bun warmer and had the opportunity to construct the warming drawer in such a manner so that the face of the appliance does not jut out excessively. Further, the Administrative Law Judge determines that the warming drawer was installed in a manner that is aesthetically unacceptable and would not be generally accepted within the industry, as noted by Inspector Schweiger’s change of position concerning this item. 43. Complainants established through the testimony of Inspector Schweiger and documentary evidence that the bun warmer was not installed in accordance with the manufacturer’s plans and specifications. 44. With respect to the corbels and onlay, the testimony of Complainants and Mr. Ballatore established that the corbels were selected by Complainants after viewing a catalogue provided by Respondent. 45. Mr. Ballatore credibly testified that Respondent produced the corbels as ordered by Complainants but that Mrs. Detwiler was unhappy with how it would look when installed. At Mrs. Detwiler’s request, Respondent addressed the shade of the corbels by lightening its appearance. When the modified corbels were presented to Mrs. Detwiler, she was unhappy with their appearance and preferred the original corbels. 46. The weight of the evidence established that Respondent performed according to the Contract with respect to the corbels and has not installed them because Complainants were unhappy with their selection. However, the evidence of record established that Respondent presented Complainants with the corbels that Complainants ordered. Under the circumstances it is determined that Complainants are entitled to the original corbels. During the hearing, Respondent represented that it was willing to provide and install the original corbels to Complainants. 47. Complainants contend that they are entitled to an overlay to the area above the stove in the kitchen. While Respondent may have at one time been willing to provide that item to Complainant, the weight of the evidence of record failed to establish that the fabrication and installation of the onlay was part of the Contract. 48. With respect to Complainants’ complaint that the openings at the tops and bottoms of the cabinets exist (see also item 24 of the itemized complaint), and that shoddy repair work was performed by Respondent, the evidence of record established that Respondent left gaps at the top and bottoms of cabinets that should not exist and are aesthetically unacceptable. 49. It is determined that with respect to any other items in Complainants’ complaint, Complainants either failed to meet their burden of proving that they do not meet minimum workmanship standards, Respondent is not contractually obligated to Complainants for such items, or that the items no longer require any corrective work. CONCLUSIONS OF LAW The evidence of record established that Respondent violated the provisions of A.R.S. §§32-1154(A) (7), (23), and (3), namely A.A.C. R4-9- 108. RECOMMENDED ORDER Based on the above, it is recommended that on the effective date of the Order entered in this matter, Respondent’s Class B license be revoked unless on or before the effective date of the Order entered in this matter, Respondent provides the plans for the cabinets to Complainants or causes the plans for the cabinets to be provided to Complainants and Respondent accomplishes appropriate and effective repairs to the items set forth above in paragraph 20, 21, 29, 39, 43, 46, and 48 of the above Findings of Fact. It is further recommended that if Respondent complies with the above on or before the effective date of the Order entered in this matter and provides written proof of such compliance to the Registrar of Contractors, then no license revocation shall be imposed but that the Class B license of Respondent shall be placed on probation for a period of sixty days, such alternative penalty to commence on the effective date of the Order entered in this matter. Done this day, August 7, 2001.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, 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