ALJDEC decisions subject to certification as final

2011A-456-ROC · Registrar of Contractors · 2011-12-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 21, 2011 APPEARANCES: Freya and Robert Weissner appeared personally. Market Street Development, L.L.C. was represented by its authorized representative, Russ Dollman. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Market Street Development, L.L.C. (“Respondent”) is the holder of License No. 180198, a Class B contracting license issued by the Registrar of Contractors (“Registrar”). 2. Freya and Robert Weissner (“Complainants”) purchase a new condominium unit constructed by Respondent located at 18650 North Thompson Peak Parkway, Scottsdale, Arizona. 3. Mr. Weissner is an architect. 4. On January 21, 2010, Complainants filed a written Complaint with the Registrar alleging numerous items of deficient workmanship by Respondent. The Registrar designated the Complaint as Case No. 2011- 456. 5. There were several addendums to Complainants’ Complaint. 6. The Registrar issued a Citation and Complaint in Case No. 2011-456 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (2), (3), namely A.A.C. R4-9-108, (15), and (23). 7. The Registrar forwarded Case No. 2011-456 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 8. At the hearing, Complainants announced that the sole remaining issue in this matter is their allegation of improper cabinet panels for their refrigerator and freezer appliance. Therefore, Respondent is determined to have complied with the Registrar’s Corrective Work Orders for all other Complaint and addendum items. 9. The specifications for Complainants’ refrigerator and freezer cabinet panels were as follows: “(flush inset@Refig) to match house cabinets.”

10. Respondent’s cabinet subcontractor, Creative Touch Interiors (“CTI”), provided Complainants with an elevation showing solid refrigerator and freezer panels. The elevation did not show the surrounding cabinetry that Respondent was required to match. The elevation was not a part of the specifications. There were no shop drawings for the refrigerator and freezer panels. There is no evidence that Complainants ever asked Respondent or CTI for shop drawings for their review and approval. 11. Respondent’s subcontractor installed multi-piece refrigerator and freezer panels to match the full overlay style of the OakCraft Cape Cod Euro Beech cabinet doors in Complainants’ kitchen. In its answer to the Citation and Complaint, Respondent contended that Oakcraft does not manufacture or warrant one-piece panels for refrigerators and freezers as desired by Complainant. 12. Complainants contend that OakCraft manufactures one-piece panels for refrigerators and freezer appliances. In support of their claim, Complainants introduced documentary evidence from two unnamed “vendors” who state that OakCraft could make the one-piece panels desired by Complainants. However, Complainants did not identify those vendors and those vendors did not testify at the hearing. 13. Respondent presented evidence that while it was originally told that OakCraft could not manufacture the one-piece panels desired by Complainant, it has since discovered that OakCraft can manufacture the panels. However, such panels are not standard. OakCraft would not warranty the one-piece panels. 14. The evidence of record established that Respondent, through its subcontractor, installed Complainants’ refrigerator and freezer panels per specifications in a workmanlike manner. 15. A review of Respondent’s answer to the Citation and Complaint reveals that Respondent used a letterhead that reads as follows: “The Courtyards at Desert Park by Market Street Homes, L.L.C.” Although the answer is signed by Thomas Kirk, as Respondent’s manager, it submitted the answer under the name “Market Street Homes, L.L.C.” Therefore, it is determined that Respondent used a name other than the one appearing on License No. 180198. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainants failed to sustain their burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (2) by deviating from specifications, as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent performed its scope of work for the refrigerator and freezer panels per specifications. 4. Complainants failed to sustain their burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9- 108, by failing to perform its scope of work to workmanship standards, as charged in the Citation and Complaint issued by the Registrar. On the contrary, the evidence of record established that Respondent completed its scope of work in a workmanlike manner. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (15), as charged in the Citation and Complaint issued by the Registrar. Respondent submitted its answer to the Citation and Complaint using the name “Market Street Homes, L.L.C.” rather than the name appearing on its contracting license. 6. Complainants failed to sustain their burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (23) by failing to comply with the Registrar’s Corrective Work Orders, as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent fully complied with the Registrar’s written directives to perform remedial work necessary for such work to meet workmanship standards. RECOMMENDED ORDER Respondent’s License No. 180198 shall be suspended on the effective date of the Order entered in Case No. 2011-456 until Respondent provides proof to the Registrar, and the Registrar approves such proof, that Respondent has become fully compliant with the provisions of A.R.S. § 32- 1154(A) (15). If Respondent provides proof to the Registrar that Respondent had become fully compliant with the provisions of A.R.S. § 32-1154(A) (15), on or before the effective date of the Order entered in Case No. 2011-456, and the Registrar approves such proof of compliance, then the above-provided license suspension shall not take place and the Citation and Complaint in Case No. 2011-456 shall be closed. 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, December 12, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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