ALJDEC decisions subject to certification as final

2012A-5716-ROC · Registrar of Contractors · 2013-07-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 11, 2013 APPEARANCES: Raymond Nordstrom appeared on his own behalf. Kim Richins appeared on behalf of Cabinet Resources Inc doing business as Arizona Kitchen Cabinets. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. K- 60.262628-D to Cabinet Resources Inc doing business as Arizona Kitchen Cabinets (“Respondent”). The Registrar received a Complaint against Respondent from Ray Nordstrom (“Complainant”) alleging that Respondent failed to complete its contract with Complainant to provide kitchen cabinets. Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(1) and A.R.S. § 32-1154(A)(13), namely A.R.S. § 32-1158(B). Respondent filed a timely written answer to the Citation and Complaint and admitted Complainant had not received the cabinets he ordered from Respondent due to circumstances beyond Respondent’s control. Respondent stated it would do everything in its power to repay Complainant the money he was owed. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on June 11, 2013. Complainant testified on his own behalf and submitted two exhibits. Respondent presented the testimony of Kim Richins, Manager. Hearing Evidence On October 5, 2012, Complainant signed a contract for kitchen cabinets and installation with Respondent. According to the contract, the total cost of the cabinets was $6,400.00. Respondent understood he was acting as a subcontractor to Complainant on the job. At the time he signed the contract, Complainant paid a deposit of $3,200.00 toward the total cost. The check presented to Respondent was from an account owned by Tsugu Way L.L.C. Respondent placed an order for the cabinets with its supplier PFS Enterprises LLC (“PFS”) in California and paid $4,215.75 for the order. After two or three weeks, Respondent attempted to contact PFS only to discover PFS had gone out of business shortly after Respondent had placed its order. Respondent contacted PFS’s attorney and was informed that PFS would be returning their money soon. Respondent had not received any refund from PFS as of the date of the hearing. Respondent acknowledged that it had failed to fulfill its contract with Mr. Nordstrom and that Mr. Nordstrom’s business had suffered as a result. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on July 25, 2013. Such prior License record reflects that Respondent’s License No. K-60.262628-D was current with two open complaints. The Registrar’s public website also reflected on July 25, 2013, that Raymond Jorgen Nordstrom was the Qualifying Party for Tsugu Way LLC, holder of License No. B-220912-R. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq 2. Complainants bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A); and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). 3. Respondent’s failure to complete the project as indicated in the contract was an abandonment of the contract. Thus, Complainant established that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1). 4. A.R.S. § 32-1158(B) details the requirements of a contract in an amount of more than $1,000.00 “entered into between a contractor and the owner of a property to be improved.” No evidence was presented to establish Complainant was the owner of the property to be improved. The evidence indicated Complainant was a general contractor and Respondent was a subcontractor on the project. Therefore, the evidence failed to establish that Respondent violated A.R.S. § 32- 1154(A)(13), namely A.R.S. § 32-1158(B). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Cabinet Resources Inc doing business as Arizona Kitchen Cabinets’s License No. K-60.262628-D unless the Registrar of Contractors receives and accepts written proof that Respondent has paid the principal sum of $3,200.00 in certified funds to Complainant. It is further recommended that if on or before the effective date of the final Order, Respondent provides acceptable written proof and the Registrar accepts such proof that Respondent has paid the principal sum of $3,200.00 in certified funds to Complainant, the Registrar should not suspend Respondent’s license but, instead, shall close Complainant Ray Nordstrom’s Complaint in Case No. 2012-5716. 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, 2013.

/s/ Tammy L. Eigenheer 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