ALJDEC decisions subject to certification as final

08F-0024-ROC · Registrar of Contractors · 2008-08-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 31, 2008

APPEARANCES: Complainant appeared on her own behalf and Respondent was represented by its attorney, Lincoln Combs. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________ Evidence and testimony were presented and, 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. Complainant retained Respondent to remodel her kitchen. As part of the new kitchen remodel project, Respondent provided and installed new cabinetry in the kitchen. Complainant indicated at the outset of the hearing that the only issue to be determined involved the placement of the upper peninsula cabinets on either side of an existing window. The facts surrounding this claim are discussed in the findings below.

2. At the outset of the scheduled hearing, Respondent renewed its previously filed Motion to Dismiss, alleging that the instant Complaint was barred by the applicable statute of limitations (A.R.S. §32-1155). This claim was treated as a threshold issue, with both parties presenting evidence and testimony on the issue.

3. On the issue of the statute of limitations, the following salient facts were demonstrated at the hearing:

a. The Complaint form filed in this matter shows that the parties entered into the applicable contract on April 2, 2005. June 8, 2005 was the “date work last performed.” b. The Complaint was filed with the Registrar of Contractors on July 3, 2007. c. Notwithstanding the fact that she had placed June 8, 2005 on the line for “date work last performed,” Complainant presented testimony and evidence to show that although the cabinetry in question may have been installed on or before June 8, 2005, Respondent was still working on the kitchen remodel project in August 2005. Documents placed into evidence showed that Complainant had provided Respondent with a punch list on or about August 1, 2005 and on August 26, 2005 Complainant signed a document entitled “Completed Installation of Kitchen/Bath.”

4. Based on the foregoing facts, it was determined and held that Respondent did not complete the kitchen remodel project until on or about August 26, 2005. Under the facts and circumstances presented herein, it is held and determined that the date of completion started the two year time period, for filing a complaint with the roc and therefore, the instant Complaint, although filed belatedly by Complainant, was filed within the statutory allowed period of time. Accordingly, Respondent’s renewed motion to dismiss was denied.

5. Subsequent to receiving the above-described ruling on the issue of the statute of limitations, Respondent made a further motion to either dismiss or continue, based on the fact that the Complainant was not home to allow the pre-hearing inspection to occur. Although Complainant was aware of the time and date for the pre-hearing inspection, she testified that something occurred at work and she was not allowed to leave to be home for the inspection.

6. Evidence and testimony showed that nothing had changed at Complainant’s home, since the time of the original jobsite inspection and thus, it was determined and held that a pre-hearing inspection was not critical to the presentation of testimony and evidence at the hearing. Although Respondent alleged that not being able to view the property at the time of the pre-hearing inspection would have a deleterious effect on its ability to present its defense in this matter, this motion to dismiss or continue was denied.

7. The following salient facts were adduced at the hearing in regard to the issue of the placement of the cabinets around the kitchen window and are important to note:

a. Complainant objects to the fact that the placement of the upper peninsula cabinets on either side of the kitchen window leaves a drywall reveal on one side of the window at 4 inches and the other side is at 2 ½ inches. She feels that this creates an aesthetically displeasing result and contends that both sides of the reveal should be equal in dimension. b. Based on Respondent’s refusal to perform any remedial work on the placement of the upper peninsula cabinets, she filed the instant Complaint with the Registrar of Contractors. c. After receiving the Complaint, the matter was assigned to one of the Registrar’s inspectors. The inspector convened a jobsite inspection to view the issues of the Complaint. d. After concluding the jobsite inspection, the inspector issued a Corrective Work Order which, among other things, directed Respondent to correct the issue of the cabinets not being centered at the window. e. Respondent disagreed with the inspector’s findings and ultimately requested that the matter be set for an administrative hearing. f. The inspector appeared at the instant hearing and provided testimony regarding his findings. He stated that although the issue is one of aesthetics, he believes that the placement of the cabinets is poor workmanship. However, he was unable to point to any industry standard or item in the Registrar’s handbook on workmanship standards that would support his opinion. g. Dennis Thalman (“Thalman”), Respondent’s remodel manager, appeared at the hearing and provided testimony. Thalman was shown to have extensive experience in the kitchen remodel business. h. Thalman testified that the upper peninsula cabinet placement around the window was a direct result of Complainant’s desire to have as much cabinet storage space as possible in the area. He also testified regarding two schematic drawings for the kitchen remodel project, which were entered into evidence. Both of these drawings clearly show that there was to be an uneven reveal around the window in question. Complainant signed both of these documents, indicating that she reviewed them and approved them. i. Although the Registrar of Contractors’ inspector indicated that the aforementioned drawings were not plans and specifications, Thalman testified that the window reveal situation was intentionally drawn to show Complainant that the reveal would not be even and were submitted to Complainant for her approval of the design. j. The as-built situation in Complainant’s kitchen is constructed just as shown on the aforementioned schematic drawings.

8. The weight of the evidence of record supports a finding that the two schematic drawings provided to Complainant, and approved by her, were intended to put her on notice regarding the final look of her kitchen cabinetry, based on her selection of the amount of cabinetry and the type of cabinets. Complainant reviewed these documents and “signed-off” on the drawing design.

9. Based on the testimony and evidence presented herein, it is determined and held that Respondent complied with the approved design and although Complainant is not satisfied with the aesthetic result, she had ample advance notice to rectify the design before the installation. Based on her approval of the design and layout, she is now estopped to complain that she wanted the reveal around the window to be even. Thus, Complainant failed to sustain the requisite burden of proof on this issue.

CONCLUSIONS OF LAW

1. Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it 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, 654 (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).

2. Complainant failed to sustain her burden of proof to establish that Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (08-0024), together with the Complaint upon which it is based, be dismissed. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, August 4, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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