ALJDEC decisions subject to certification as final

07F-0228-ROC · Registrar of Contractors · 2008-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 15, 2008 APPEARANCES: Complainants Roger Geddes and Victoria Ames appeared on their own behalf. Chris Spaur appeared on behalf of Respondent Arizona Creative Countertops, L.L.C. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ Based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. The hearing in this matter was scheduled to convene on April 14, 2008, at 1:30 p.m., pursuant to a Notice of Compliance Hearing issued by the Registrar of Contractors (“ROC”), to address whether Respondent Arizona Creative Countertops, L.L.C. (“ACC”) “has substantially complied with the terms and conditions of the Decision and Order issued on July 16, 2007, and reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed as a result of this hearing.” 2. The hearing was continued at the request of Complainants Roger Geddes and Victoria Ames for the reason that they had a death in the family necessitating their traveling to the east coast. The hearing was continued to July 28, 2008. 3. On July 28, 2008, at the time set for hearing, Mr. Geddes and Ms. Ames were present on their own behalf. Chris Spaur appeared on behalf of ACC. Prior to the commencement of the hearing, the parties jointly requested a continuance because they believed they had reached a settlement, however needed additional time to effectuate the terms of the agreement. The hearing was continued to September 15, 2008 at 9:00 a.m. However, the parties were ordered to submit by September 2, 2008, a joint written status report informing this tribunal whether settlement had been reached and if the continued hearing was necessary. 4. On September 2, 2008, Mr. Geddes and ACC submitted the status report, indicating that the matter had not been resolved and that a hearing was necessary, thus the continued hearing convened on September 15, 2008 at 9:00 a.m. 5. Mr. Geddes’ and Ms. Ames’ initial complaint alleged that ACC had failed to install the laminate kitchen countertop in a workmanlike manner.

6. On September 28, 2006, the ROC issued a Corrective Work Order (“CWO”) under which ACC was given fifteen days to comply with the following: Complaint #1 – Contractor did not install kitchen laminated countertops in a workmanlike manner. The final product included patch like corners and the one side of the countertops still had one side of the countertops still (sic) has a 90 degree edge rather than a rounded edge. Contractor to correct laminate kitchen countertop on kitchen peninsula outside corners by appropriate means. 90 degree corner at kitchen entrance is within standards.

7. On May 3, 2007, the ROC issued a Citation and Complaint charging ACC with violations of A.R.S. § 32-1154(A)(3), (A)(7), (A)(13), and (A)(23). 8. ACC failed to file a written Answer to the Citation and Complaint, and on July 16, 2007, the ROC issued a default Decision and Order suspending ACC’s Class K-60 license until the ROC received proof that ACC “has appropriately rectified the items involved and detailed in the Complaint and the Agency’s written directive.” The ROC also ordered ACC to pay a $250.00 civil penalty. 9. The July 16, 2007 Order further provided that the parties could request a rehearing on or before August 20, 2007, or file a judicial review action in Superior Court and obtain a Stay Order on or before August 25, 2007. The effective date of the Order was August 25, 2007. Neither party requested a rehearing or filed an appeal. 10. The ROC suspended ACC’s license on August 29, 2007. 11. Thereafter, ACC sent correspondence to the ROC indicating that it had attempted to comply with the ROC's Order, however, Mr. Geddes and Ms. Ames remain dissatisfied. ACC requested that its license be reinstated. Mr. Geddes submitted correspondence to the ROC maintaining that the countertops need to be replaced. 12. On January 19, 2008, the ROC issued an Order Setting Compliance Hearing. The January 19, 2008 Order provided the following: If at the compliance hearing it is determined that [ACC] did not fully comply with the terms of the Default Decision and Order, License No. 171452 shall be subject to the immediate imposition of discipline. If it is determined that [ACC] has fully complied with the terms of the Default Decision and Order, or that by any unreasonable denial of access, Complainants have precluded [ACC] from complying with the terms of the Default Decision and Order, this matter shall be closed with no further discipline to be imposed upon [ACC’s] Class K-60 License.

13. At hearing, the following information was adduced: a. On or about July 28, 2004, Mr. Geddes and Ms. Ames contracted with ACC for the removal of the existing tile kitchen countertop and replacement with laminate countertop. See Exhibit A. The contract price was $2,407.00. Id. Mr. Geddes and Ms. Ames paid ACC $1,207.00. Id.

b. Mr. Geddes and Ms. Ames had requested the edge of the countertop be beveled. ACC advised that the product they selected could not be beveled without producing points on the edges. Mr. Geddes and Ms. Ames did not want sharp edges or corners on the countertops because they have young children and were concerned for their safety. c. Upon the installation of the initial countertop, Mr. Geddes and Ms. Ames were dissatisfied due to the fact that the countertops were angled and contained sharp edges and corners. ACC agreed to replace the countertops and did so. However, because the laminate product chosen by Mr. Geddes and Ms. Ames is incapable of being made with rounded edges and corners, ACC shaved the corners and “patched” them in an effort to round the corners. See Exhibits 1 through 5. d. ROC Inspector Scott Deering conducted a jobsite inspection on September 14, 2006, after which he issued the above-described CWO. Inspector Deering also conducted a pre-hearing inspection prior to the hearing, and testified that although some work was performed to the outside corners of the countertops, the condition will not improve due to the nature of the product and the application utilized by ACC, in that it removed the corners and reset new corners. Inspector Deering testified that this corrective measure is not standard for the industry, and that the countertops should have a “continuous look”. Inspector Deering opined that “nothing else can be done” to these countertops. Inspector Deering testified that ACC should have obtained a waiver from Mr. Geddes and Ms. Ames given the circumstances presented, in that they wanted ACC to perform work that was not within industry standards. e. Both Mr. Geddes and Ms. Ames testified that ACC’s salesperson failed to advise them that what they wanted could not be done with laminate countertops, and further, they were never informed by ACC that what they had requested would look like a patch, and if they had been informed of such, they would have chosen not to have the countertops installed. Mr. Geddes further testified that if ACC had presented them with a waiver, they would not have signed it, thus the countertops would not have been installed and this hearing would not have been necessary. f. Mr. Spaur testified that there is no way to repair the countertops, no way to install laminate countertops in the way in which Mr. Geddes and Ms. Ames desire, and that they must be replaced. Mr. Spaur further testified that all other options for replacement countertops are more expensive, and even giving Mr. Geddes and Ms. Ames ACC’s wholesale pricing, replacement countertops will be more expensive, and they do not want to pay additional monies. Mr. Geddes and Ms. Ames corroborated the fact that they do not wish to pay additional monies, and testified that had they wanted to pay for more expensive countertops, they would have contracted for a more expensive product in the first place. Mr. Spaur testified that he feels ACC should not have to pay for a decision regretted by Mr. Geddes and Ms. Ames. 14. The Administrative Law Judge finds, based on the weight of the credible evidence presented at hearing, that ACC has failed to substantially comply with the terms and conditions of the Decision and Order issued on July 16, 2007 (as this was the issue to be determined at hearing, given that a final order had previously been entered by the ROC, determining that ACC violated the provisions of § 32- 1154(A)), in that ACC has not appropriately rectified the items delineated in the filed complaint and the CWO. 15. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend ACC’s Class K-60 license subject to the condition that ACC can avoid such suspension by accomplishing one of the following options to be chosen by Mr. Geddes and Ms. Ames: a. Removes and replaces the existing countertops with like material countertops; or b. Removes the existing countertops and refunds all monies received from Mr. Geddes and Ms. Ames; or c. Concludes other mutually acceptable arrangements with Mr. Geddes and Ms. Ames.

CONCLUSIONS OF LAW 1. Mr. Geddes and Ms. Ames have sustained their burden of proving that ACC failed to substantially comply with the terms and conditions of the ROC‘s July 16, 2007 Decision and Order. See Arizona Administrative Code Rule R2-19-119. 2. In view of ACC’s failure to comply with the terms and conditions of the ROC's July 16, 2007 Decision and Order and in accordance with the March 10, 2008 Notice of Compliance Hearing, it is determined that disciplinary sanctions should be imposed against ACC’s Class K-60 license. RECOMMENDED ORDER In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that ACC’s Class K-60 license shall be suspended until the ROC receives written proof that ACC has accomplished one of the following options to be chosen by Mr. Geddes and Ms. Ames: a. Removes and replaces the existing countertops with like material countertops;[1] or b. Removes the existing countertops and refunds all monies received from Mr. Geddes and Ms. Ames; or c. Concludes other mutually acceptable arrangements with Mr. Geddes and Ms. Ames.

It is further recommended that if ACC accomplishes one of the above- described options on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the above-provided penalties, if any, that ACC pay the previously ordered sum of $250.00 to the ROC by way of a civil penalty pursuant to A.R.S. (32-1154(D). The failure by ACC to pay the entire amount of the aforesaid civil penalty, on or before the effective date of the Order entered in this matter, shall result in the automatic revocation of ACC’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with ACC, as defined in A.R.S. (32- 1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. 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, September 29, 2008. ______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of September, 2008, to:

Armando Contreras, Acting Director Registrar of Contractors 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] Should Mr. Geddes and Ms. Ames choose this option, such countertops will be installed according to industry standards, and thus contain sharp edges and corners.

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