ALJDEC decisions subject to certification as final

2010A-14033400-ROC · Registrar of Contractors · 2010-06-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 19 and June 8, 2010 APPEARANCES: Robert Barlow, Esq. represented the Complainant. Jayne Sassano, Esq, represented the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ This matter initially came on for hearing on May 19, 2010. The Respondent became ill during the afternoon portion of the hearing and the matter was continued to June 8, 2010 at which time the hearing was concluded. Findings of Fact 1. In Approximately August of 2009, the Respondent began performing various “small jobs”[1] for the Complainant. During the course of performing these jobs, the parties entered into a verbal agreement whereby the Respondent would replace the Complainant’s kitchen cabinets as well as perform additional work at the Complainant’s home which the Complainant was preparing to sell. 2. The Complainant testified she paid the Respondent in cash. According to the Complainant, she ultimately paid the Respondent $13,617.69.[2] The Complainant has no written confirmation of the total amount paid. The parties agree that the last payment made by the Complainant was on August 31, 2009. According to the Respondent, the total amount received from the Complainant was $5,595.00. The Complainant did not request nor did the Respondent give any receipts for payments made or received. 3. The Complainant testified she gave the Respondent a copy of a magazine which showed the cabinets she wanted and the Respondent picked the wrong cabinets. She also claimed she gave the Respondent recently purchased handles from the replaced cabinets and the handles have not been returned[3]. The new cabinets had a glaze (stain) added to portions of the factory finished cabinetry. The Complainant testified she was not aware of this until after the cabinets had been installed and that the Respondent told her that his (Respondent’s) brother had added the stain. The Respondent denied being responsible for the added stain and implied the Complainant was somehow responsible. Photographic and demonstrative evidence gives the appearance that the addition of the stain to the cabinets was amateurish and of poor workmanship[4]. 4. In early September of 2009, the Respondent sought payment for granite countertops which were to be installed. The Complainant refused to pay because she claimed she had already paid for the granite on August 31, 2009. 5. On October 13, 2009 the Complainant filed her Complaint with the Registrar of Contractors (ROC). The Complaint listed 21 separate items which were claimed to be defective or incomplete. 6. On November 4, 2009 ROC Inspector Scott Deering (Deering) performed a jobsite inspection. On November 12, 2009 Deering issued a Corrective Work Order (CWO). 7. The CWO required the Respondent to correct: a. Incomplete, poorly fitting, and broken crown molding; b. The base cabinet size and wood spacers; c. Exposed screws; d. Open hole (fill in); e. Toe kick (install); f. Microwave placement to meet code; g. Granite (install); h. Open counter top; i. Epoxy painted tub (brush stroke marks); j. Arabesque window (re)installation; k. Chip in guest bath sink; l. Paint job around kitchen light fixture; m. Paint in master bedroom and fill in of French door indentations; 8. On November 10, 2009 the Complainant filed an addendum to the Complaint. It alleged the Respondent performed electrical work for which he was not licensed. The addendum also asserted the Respondent retained granite which had been paid for by the Complainant, and gave further details on the microwave issue (7. f. above). 9. The Respondent performed some corrective work on November 18, 19, and 24, 2009 in response to the CWO. According to the Respondent, the corrective work included the toe kicks and crown molding which according to Deering and the photographic evidence (Complainant’s Exhibits pages 61-63) were not corrected as of December 9, 2009. The Respondent’s assertion that the Complainant undid that portion of the corrective work, is not accepted.[5] 10. On December 9, 2009 Deering performed a follow up inspection. On December 10, 2009 he issued a second CWO which required the Respondent to obtain necessary permits, inspections, and use a properly licensed contractor to perform electrical work including electrical work involving the microwave. The granite issue had been addressed in the original CWO (paragraph 7. g. above). 11. Upon viewing various photographic exhibits taken at various times dated December 9, 2009, December 31, 2009, January 22, 2009, and other dates Deering testified: a. Some crown molding was not installed on the cabinets and crown gap molding was installed incorrectly (Complainant’s exhibits pages 61-63, 101-103); b. Exposed screws are not corrected (Complainant’s exhibits pages and 67); c. There was no apparent change to the microwave (Complainant’s exhibits page 68 and 110); d. Granite is still not installed (Complainant’s exhibits pages 71- 74); e. Countertops are still open (Complainant’s exhibits pages 75-78); f. Epoxy bath tub issues are resolved; g. The Arabesque window has not been properly corrected “no exterior glass, glue and white globs, interior glazing still not acceptable (Complainant’s exhibits pages 80-85 various photos dated 12/09/09, 4/30/10, 10/29/09 and 11/2/09);[6] h. The chip in the guest bath sink appears the same (Complainant’s exhibits page 86); i. Paint around the kitchen fixture is not corrected (Complainant’s exhibits pages 87 and 88); j. The gap between the dishwasher and cabinet is undetermined (Complainant’s exhibits pages 107-112).[7] k. The microwave does not meet the code requirement for 18 inch clearance between it and the stove cook top (Complainant’s exhibits 109 and 110); l. Screws were still exposed (same as 11.b. above Complainant’s exhibits pages 101-104); m. The wood panel insert (Complainant’s exhibits page 111) is five inches wide and not to the industry standard (three inches) but it meets ROC standards. 12. In January 2010, the Complainant had the cabinets replaced by Diamond Kitchen and Bath at the claimed cost of approximately $8,700.00.[8] According to the Complainant’s witness and salesman of the replacement cabinets, the replacement cabinets were of a better quality than those installed by the Respondent. 13. The Respondent testified that the Complainant paid only $5,595.00 for the material and services provided by the Respondent based on the first six items of Complainant’s Exhibits, page 10. Of the total amount claimed as paid by the Complainant, $2,575.00 (or $3,075.00 according to the Respondent’s later testimony) was for work already completed. Based on the evidence, the value of the work completed was $5,475.00 (the value of the first six items including the cabinets, on Complainant’s Exhibits page 10 minus $250.00 for the tub refinish which was done after the cabinets). Therefore, according to the Respondent, the value of the work which had been completed exceeded the amounts paid by the Complainant for that work through August 31, 2009. The Respondent went on to testify he performed additional work listed on page 10 but was not paid after attempting to obtain payment for the granite counter tops. 14. If the Respondent’s subsequent testimony is accepted, the amount paid for the first six items (minus the tub refinish) of Complainant’s Exhibits page 10, is $3,075.00. Subsequent testimony and Exhibit B indicate that of the $3,020.00 payment of August 31, 2009, only $2,500.00 (rather than the full amount) was for cabinets which had been partially installed. In any case, if the Respondent’s testimony of having received a total of $5,595.00 is accepted, the value of the work completed ($5,475.00) plus the cost of the cabinets (either $3,020.00 or $2,500.00), clearly exceeds the payments made by the Complainant ($5,595.00) as claimed by the Respondent. This evidence is significant in light of the totality of the Respondent’s testimony. 15. The Respondent also testified the Complaint contacted him to set a toilet on the Friday before Labor Day (September 4, 2009). At that time, the Respondent asked for additional sums to pay for the granite countertops and the Complainant told the Respondent she was not going to pay him any more money. According to the Respondent, he thought the Complainant would modify her attitude but instead she restated the fact sometime during the following week. According to the Complainant, she had already paid an additional $2,500.00 for the granite on August 31, 2009. 16. If the Respondent’s testimony is accepted, then despite the Complainant’s clear declaration(s) that she would no longer pay the Respondent, and despite the fact that (according to the Respondent’s testimony) the Complainant owed a significant amount to the Respondent for work already completed, the Respondent nevertheless paid the granite cost of $1,286.64 [9] out of his own pocket. The Respondent did not satisfactorily answer the question of why he would pay for the granite rather than cancel orders when he knew the Complainant would no longer pay him. This lack of explanation by the Respondent lends support to the Complainant’s contentions that she paid $2,500.00 to the Respondent for the granite. The Respondent does not acknowledge that the Complainant paid for the granite. 17. The Respondent submitted a copy of the 2006 Phoenix Residential Code which provides that placement of a microwave over a cooking appliance shall conform to the upper appliance’s listing and label, and manufacturer’s installation instructions. 18. The Respondent admitted to performing certain electrical work installing a light fixture, a light switch, two new hall sconces, splicing into an existing junction box, and moving a microwave outlet. The Respondent is not licensed to perform electrical work. 19. The Respondent’s license is listed as “current” on the ROC website. Conclusions of Law The Citation and Complaint alleges violations of A.R.S. §32-1154 (A)(1), abandonment or refusal to perform without legal excuse; (A)(2), material and prejudicial disregard of plans, specifications, or codes; (A)(3)/A.A.C. R4-9-108, workmanship standards; (A)(17) knowingly contracting beyond the scope of the license; (A)(23); failure to take appropriate corrective action. 1. The Complainant has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, §5 (1960). 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 (6th ed. 1990). 2. The evidence in an administrative hearing must be “substantial reliable and probative” (A.R.S. §41-1092.07(F)(1)). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. The lack of reliable documentation confirming either party’s contention of the amounts paid or received, would normally result in no violation being found with respect to the issue of whether the Respondent abandoned or refused to perform without legal justification and therefore violated (A)(1). However, the claim that the Respondent purchased the granite after being informed by the Complainant that she would no longer pay the Respondent and when according to the Respondent’s testimony, the Complainant owed the Respondent for completed work, is considered highly suspect and gives credence to the Complainant’s claim that she had paid the Respondent for the granite as well as other amounts which have not been accounted for by the Respondent. The Respondent did not deliver the granite to the Complainant. Any defense that non performance by the Respondent was justified because of non payment by the Complainant, is therefore not accepted. The violation of (A)(1) is established by the preponderance of the evidence. This conclusion does not include acceptance by the Administrative Law Judge (ALJ) of the total amount claimed as paid by the Complainant. The total amount asserted in the initial Complaint varies from the amount claimed in Complainant’s Exhibits page 10 and Respondent’s Exhibit A page 12. There is insufficient independent evidence to allow for an accurate determination of the actual amounts paid by the Complainant but based on the more credible evidence, the Respondent had been paid for the granite. 5. In light of the above conclusion that the Respondent violated (A)(1) [10], the Respondent’s argument that the Complainant repudiated the contract under Restatement of Contracts 2nd §250, is not accepted. 6. Given the violation of the (A)(1), the Respondent’s failure to install the granite as required by the CWO is a violation (A)(23). The failure to correct the open countertops is essentially the same issue as the failure to install the granite and not deemed to be an independent violation. The failure to take appropriate corrective action with respect to the crown molding, toe kicks, electrical work and the kitchen paint job[11] are also deemed violations of (A)(23) 7. The proven workmanship violations of (A)(3)/A.A.C. R4-9-108 included the crown molding, kitchen paint job and the poor condition of interior glazing of the Arabesque window. 8. The evidence is conflicting and insufficient to establish that the Respondent was responsible for the poor staining of the cabinets and the staining issue is given no further consideration. The evidence is also insufficient to establish that the Respondent is responsible for the removal of the exterior Arabesque window. 9. The violation of (A)(17) is admitted by the Respondent and established by the evidence. This is also a violation of code under (A)(2). Electrical work is inherently dangerous and because of this, electrical work performed without the proper license is material and prejudicial. 10. The Respondent is responsible for multiple violations. In addition, his credibility and integrity are questioned in light of his testimony surrounding the granite issue. Even if the Respondent’s claim that he was only paid $5,595.00 is accepted, a responsible licensed contractor would maintain an accurate and verifiable record of such payment. Generally, the failure to create and maintain such records has the ulterior purpose of avoiding certain potential liabilities such as taxes. It is also noted that the Complainant has certain credibility and memory problems with respect to how much she paid to the Respondent as well as other aspects of the case. 11. Since the Complainant has had new cabinets installed and a clear picture of the financial relationship of the parties cannot be determined, there is nothing the Respondent can accomplish regarding that portion of the Complaint. Other violations which would still require Respondent’s attention as of the time of the hearing, were not clearly identified.

Recommended Order Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, Respondent Hyde Construction and Remodeling LLC’s Class B- license (No. 240619) shall be suspended for a period of fourteen (14) days to be followed by period of One Hundred-Twenty (120) days of disciplinary probation. 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, June 24, 2010.

/s/ Allen Reed Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Installation of a French door, some painting, tub refinishing. [2] The Complaint shows $14,270.00 and $12,420.00 respectively for the contract amount and amounts paid by the Complainant. The $13,617.69 claimed as the amount paid by Complainant is based on her testimony that the amount was determined jointly with the Complainant’s son who was involved in the remodeling project and the preparation of the case for hearing. The Complainant submitted a claim to the Respondent’s bonding agency on October 16, 2009 (Respondent’s Exhibit A). On page 12 of the exhibit is the Complainant’s letter to the Respondent’s bonding agency. The Complainant asserts the “…contract finished kitchen with granite” was $8,700.00 and that the Respondent had taken three fourths of that amount. On the Complainant’s Exhibits page 51, the Complainant acknowledged that on August 31, 2009, there was an $1,850.00 balance due on the kitchen “When finished w/ pull outs pastry doors paint inside”. These varied monetary amounts merely add to the uncertainty of the financial interactions between the parties. [3] Purportedly 22 handles at $9.00 each ($198.00). Complainant’s Exhibits page 70 offers limited corroborative evidence of the cost. [4] Although this finding by the ALJ is somewhat subjective, some matters involving aesthetics will succumb to a reasonable person standard. [5] This finding is reinforced by Respondent’s exhibit J which makes no mention that these items were corrected but discusses other corrective work which was purportedly done. [6] According to Deering, the Respondent denied removing the exterior glass but admitted to performing interior glazing of the window. [7] Although Deering was uncertain if the gap met the industry standard of ¼ of an inch, the photographic exhibits appear to show the gap is ½ an inch at the top. [8] It is noted this is the same amount listed on the Complainant’s letter to the Respondent’s bonding agency (Respondent’s Exhibit A, page 12), long before the installation of the new cabinets. This appears to be more confusion than coincidence although the salesman for the new cabinets placed the cost of the new cabinets at some amount slightly over $8,000.00. [9] According to Exhibit E, the purchases were made by the Respondent on September 8 and 14, 2009. The exhibit cover letter asserts that Daltile (the supplier) did not sell to the general public. This supports the Complainant’s position that she paid the Respondent and not Daltile for the granite. [10] Since it has been determined that the Respondent was paid for the granite, the Respondent’s failure to perform was without justification and constituted a repudiation of the contract. [11] Based on the evidence presented a the hearing, the Respondent’s failure to cover screw heads, and the small chip in the guest bath sink are considered too insignificant and minor to constitute violations. The evidence regarding the height requirements for the microwave was conflicting and inconclusive.

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