ALJDEC decisions subject to certification as final

05F-M1263-ROC-com · Registrar of Contractors · 2007-07-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 11, 2007. APPEARANCES: Complainants were represented by attorney James R. Hart II; Respondent was represented by attorneys Walid Zarifi and Grefory W. Falls. ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ The matter is a compliance hearing addressing whether or not Showcase Custom Cabinetry, Inc. complied with the Registrar’s June 24, 2005 Order by properly installing custom-made cabinets at the Forbes’ home. Showcase’s License was previously revoked for failing to comply with the June 24th Order, but the license-revocation was quashed, and the instant hearing set. Showcase admits that it did not comply with the Order, but asserts that it was denied reasonable access to complete the work. FINDINGS OF FACT Complainants are Patrick and Jo Forbes who own a home at 446 East Silver King in Queen Valley, Arizona.

Respondent Showcase Custom Cabinetry, Inc. (“Showcase”) is the holder of a Class K-60 license (No. 147805) issued by the Registrar of Contractors (“ROC”). Robert Mann is Showcase’s qualifying party and President. In August 2004 the Forbes hired Showcase to manufacture and install custom kitchen cabinets in the Forbes’ home. The work was not completed and the Forbes’ filed a Complaint against Showcase with ROC. An administrative hearing was held May 17, 2005 (Docket No. 05F-M1263-ROC).

On May 25, 2005, Administrative Law Judge Vanella recommended that Showcase’s License be revoked unless the ROC received written proof that Showcase had completed in a professional and workmanlike manner the manufacture and installation of the Forbes’ cabinets. See Administrative Law Judge Decision, in administrative record. ROC accepted ALJ Vanella’s Decision, effective August 3, 2005. See June 24, 2005 Order. Showcase was required to finish the job by August 18, 2005. Showcase requested additional time based on the Forbes’ alleged denial of access and ROC granted an extension to November 3, 2005. See October 4, 2005 Order Granting Respondent Extension of Time to Comply. On October 25, 2005 Showcase sent ROC a letter alleging that it had been denied access to the Forbes’ home, to which Showcase attached two letters from its employees in support of it claim. On November 7, 2005 ROC revoked Showcase’s license. Showcase petitioned for a Re-hearing, which petition was denied as untimely in a letter dated December 7, 2005. The December 7th letter also informed Showcase that a compliance inspection conducted November 11, 2005 showed that the project had not been properly completed, and that Showcase’s denial of access allegations were not sufficient to delay imposition of the penalty, but the ROC would review the file and determine whether a Compliance Hearing should be conducted on that claim. Showcase appealed the revocation to Superior Court, and in a Minute Entry dated January 24, 2007, Judge Downie ruled that Showcase was entitled to a hearing on the issues of non-compliance and the alleged denial of access before ROC revoked its license. See Forbes’ Exhibit 1 (Docket No. LC2005- 000920-001). In an Order dated March 20, 2007 ROC quashed the revocation. On May 7, 2007 ROC issued a Notice of Compliance Hearing, setting the matter for 9:00 a.m. June 11, 2007 at which time the hearing was convened. The Notice gave the issue as whether Showcase had substantially complied with the June 24, 2005 Decision and Order, and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed be imposed as a result of the instant hearing. Mr. Mann, Mr. and Ms. Forbes, and ROC Inspector Ted Gerold each testified; Showcase also presented the testimony Justin Larson and Tom Vanetta. Showcase had 14 exhibits and the Forbes had 14 exhibits admitted in to evidence. Showcase Exhibit 20 and Forbes’ Exhibit 18 are a cd-rom and video- tape of portions of the compliance inspection. The parties are also engaged in civil litigation over the matter. Inspector Gerold’s Testimony Inspector Gerold determined that the cabinets did not meet the minimum workmanship standards. Inspector Gerold conducted a compliance inspection of the home on November 11, 2005. See Respondent’s Exhibit 9 (Inspector Gerold’s Report showing 26 deficiencies at the time of the inspection). Inspector Gerold also prepared a Recovery Fund Inspection Report based on information and bids provided to him by others in the ROC Recovery Fund, but he did not return to the home before preparing that Report. See Respondent Exhibit 18 (Recover Fund Good Faith Settlement Offer of $10,202.00). The Recovery Fund Report shows that Inspector Gerold recommended that the cabinets be removed and replaced. At the instant hearing Inspector Gerold initially could not remember that he had made this recommendation. After considering the matter, Inspector Gerold testified that the cabinets would need to be replaced because the required repairs were excessive. Photographs and other evidence support his conclusion. The preponderance of evidence supports a finding that the cabinets need to be replaced. A recovery fund hearing was set and cancelled after the instant matter was scheduled. A compliance inspection is limited to determining whether the terms of the applicable order have been met and Showcase’s denial of access claims were not relevant to Inspector Gerold during the compliance inspection. Inspector Gerold estimated that it would take two to three days to install the required cabinets, but this does not include the time for manufacturing. Showcase’s Position Mr. Mann agreed that the cabinets were not properly completed as required, but asserts that Showcase was denied reasonable access to complete the work after ROC granted the extension to November 3, 2005. Mr. Mann estimates that it would take about 11 days to complete the work, which shows that the project is substantially incomplete. Mr. Mann did not agree that all the deficiencies noted on Inspector Gerold’s Compliance report are valid, but he presented no substantial evidence to show which, if any, of the defects listed by Inspector Gerold are in error. Mr. Mann professes to be willing and able to fix the cabinets. On or about Friday October 29, 2005 Mr. Mann told the Forbes that he was providing 48-hour notice that he intended to work the following Sunday. The Forbes initially told Mr. Mann that he would not have access, but the Forbes reconsidered and called Mr. Mann before he had returned to his shop. Mr. Forbes provided credible testimony that the Forbes’ had already changed their plans once to accommodate Showcase, which is why they initially balked at Mr. Mann’s request. Mr. Mann did have access and actually went to the home that Sunday. The preponderance of evidence shows that this was not a denial of access. One day Mr. Forbes chastised Mr. Larson and Mr. Larson felt threatened because Mr. Forbes was pointing his finger at Mr. Larson. Mr. Forbes admits he did point his finger at Mr. Larson because Mr. Larson repeatedly left open a door after the Forbes had told him not to. According to Mr. Forbes, he was about 4 feet from Mr. Larson at the time. After the incident Mr. Larson told Mr. Mann that he would not work at the Forbes’ home, although Mr. Larson did return to the home as a favor to Mr. Mann. This incident cannot be considered a denial of access because Showcase was never denied access to the home. Mr. Mann asserts that the Forbes would not allow Showcase to open a door and the Forbes did not turn on the ceiling fans so that it got too hot and stuffy in the house. The Forbes deny this and assert that it was only the one door that did not have a screen that they wanted left closed, and that the arcadia doors were open. None of Showcase’s witnesses could recall if the arcadia doors were actually open, and Showcase provided no evidence to show why it did not bring its own fans. The weight supports the Forbes’ testimony that there was adequate ventilation, and no denial of access due working conditions. Mr. Mann asserts that showcase had had access to only one outlet to use for its tools, but he also testified that this limit was during a time that Mr. Forbes was working on the wiring. Photographs admitted into evidence show Showcase employees using several outlets, and Mr. Mann admits that he could have rented a generator for power. The preponderance of evidence shows that there was not a denial of access based on too few outlets being made available to Showcase. Mr. Mann and Mr. Larson found that the Forbes’ demeanor and attitude was off-putting, and the Forbes would hover near them as they worked. The evidence does not demonstrate that this was a denial of access. Ms. Forbes’ Notes Ms. Forbes kept notes in her calendar and the Forbes filmed most if not all of Showcase’s work after the extension of time was granted. Ms. Forbes’ notes are credible evidence showing that Mr. Mann worked at the home for only about 32 hours in the 30 days after the extension of time was granted. See Complainant’s Exhibits 2, 3, and 4. The Forbes would allow Mr. Mann to complete the project if Mr. Mann could provide the quality that was discussed at their first meetings. The preponderance of evidence shows that it is extremely unlikely that Showcase will be able to build the cabinets to the specifications that the parties initially discussed, and it would not be administratively efficient to have these parties continuing to work together.

CONCLUSIONS OF LAW 1. Mr. Mann admits that Showcase did not comply with the June 24, 2005 Order but asserts that Showcase was denied access. Showcase must prove that it was denied access by a preponderance of the evidence. See A.A.C. R2-19- 119 2. Showcase did not meet that burden. As the Findings of Fact show, Showcase had access to the home, and although there may have been inconveniences and problems, there was no denial of access. 3. Because Showcase did not comply with ROC’s June 24, 2005 Order by November 3, 2005, without valid justification it is appropriate to revoke Showcase’s license for the reasons set out in Judge Vanella’s Decision, and because despite being given an additional days to cure Showcase’s defective work, Mr. Mann worked at the Forbes’ home for only about 32 hours during that 30 days. The weight of evidence shows that Showcase’s License should have been revoked. 4. Showcase’s License has already been revoked for about 15 months, and the Forbes are still without cabinets that meet the minimum workmanship standards, and in fact the Forbes’ cabinets need to be replaced. Consequently, rather than revoking Showcase’s License for a second time, requiring the Forbes to go to a Recovery Fund Hearing for satisfaction, the Administrative Law Judge finds that Showcase’s License should be placed on suspension until Showcase provides restitution of the $6,125.00 the Forbes paid Showcase, and that Showcase’s License should be placed on disciplinary probation for 365 days.

RECOMMENDED ORDER Showcase’s Class K-60 license (No. 147805) shall be suspended until ROC receives written proof that Showcase has provided restitution of $6,125.00 to the Forbes. If Showcase makes the restitution payment, Showcase’s Class K-60 license (No. 147805) shall be placed on probationary status for 365 days, beginning on the effective date of this Order, or the date that ROC receives written proof that Showcase has provided the required restitution, if that notification occurs after the effective date. 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 40 days from the date of that certification. Done this day, July 1, 2007

______________________________________ Thomas Shedden Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ -----------------------

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