ALJDEC decisions subject to certification as final

2014A-1099-ROC · Registrar of Contractors · 2015-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 7, 2015, at 8:00 a.m. APPEARANCES: Builders Showcase, Inc., (hereinafter “Complainant”) appeared through Jonathan Poindexter. Oak Craft, Inc., License No. 274336 (hereinafter “Respondent” or “Oak Craft” or “Kitchens Southwest”) appeared through its Director of Engineering, Biagio Fiasche. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3), and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background and Procedure Respondent is the holder of License No. CR60.274336-D issued by the Registrar. Respondent’s License is current. This is a residential matter in which on or about May 23, 2013, Complainant, in its capacity as a general contractor, contracted with Respondent for the construction and installation of cabinetry at a residence located at 2582 E. La Serena, Flagstaff, Arizona (hereinafter the “residence”). Shortly after Respondent completed its construction work at the residence, the Complainant notified Respondent of numerous problems with the new cabinetry and requested appropriate corrections. Respondent failed to correct the cabinetry to Complainant’s satisfaction. On March 21, 2014, Complainant filed a Complaint against Kitchens Southwest, License No. 099711 with the Registrar. License No. B.099711-R of Finch Associates Inc., dba KSW and Kitchens Southwest (hereinafter “Finch”) was suspended for lack of bond on March 1, 2012, and cancelled on October 21, 2013. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection at the residence. On September 3, 2014, the Registrar issued a written Directive to Finch directing it to cause appropriate corrective action on the cabinetry at the residence. After the onsite inspection the Respondent disclosed to the Registrar that it had purchased the KSW business from Finch in 2012. The assigned Investigator found that Respondent did not have a DBA associated with License No. 274336. The assigned Investigator, found that despite the lack of DBA the Respondent had been operating under the name “KSW.” The assigned agency Investigator noted that the license number on the parties’ contract, and the drawings for the project, was 099711 of Finch and that the documents presented by Complainant indicated that Respondent was a cabinet supplier instead of a subcontractor. The assigned agency Investigator was able to obtain confirmation that Respondent did collect payment for the construction project at issue and, after consultation with the Registrar’s legal staff, the complaint was reassigned to the Respondent On January 28, 2015, a second written Directive was issued by the Registrar. The written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. The cabinets next to the farm sink display a crack at the joint where the door components meet. As to the glazing and finish, the glazing meets minimum workmanship standards. The fit at the marriage of the cabinet boxes is poorly done. 2. At the left hand side of the credenza, there is an area that is approximately 4” in diameter that should be corrected. 3. The contract and drawings do not support a requirement for 2 way guides. The baskets however are missing. 4. The panel installed is not the proper dimension and does not match the remaining panels. 5. Master sitting: toe kick trim for front of under counter fridge. The Respondent is to correct this condition in an appropriate manner. 6. Main floor bar upper cabinet. This door was improperly drilled for hardware yet was still used. 7. “Michelle’s office” bookcase. This bookcase is not built to plan dimensions.

Respondent failed to comply with the written Directive to Complainant’s satisfaction and Complainant requested the Registrar to issue a Citation against Respondent’s license. On June 26, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained two charges: Charge 1: A violation of Rule 4-9-108, titled ‘Minimum construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).[1]

Charge 2: A violation of A.R.S. § 32-1154(A)(22).[2]

Complainant’s representative, Jonathan Poindexter (hereinafter “Mr. Poindexter”) testified that the Respondent had failed to comply with the Registrar’s written Directive. Mr. Poindexter stated that there were still several items of the Directive that had not been corrected. Mr. Poindexter opined that the Respondent had not operated in a forthright manner and that its work failed to comply with workmanship standards. The assigned Registrar Investigator, Jim Dimond (hereinafter “Investigator Dimond”), testified that he had performed the initial onsite inspection and that he had prepared the written Directives. Investigator Dimond stated that he performed a compliance inspection at Complainant’s residence on December 3, 2015. Investigator Dimond testified that Respondent had failed to fully comply with the terms of the January 28, 2015 written directive. Investigator Dimond said that Item Nos. 1, 5 and 7 of the written Directive had not been corrected. Investigator Dimond’s testimony is found to be credible. Steven D. Newlin (hereinafter “Mr. Newlin”) testified that he is the owner of the residence. Mr. Newlin said that he had been built several homes. Mr. Newlin said that the residence was supposed to be a dream luxury home. Mr. Newlin said that he was very disappointed with Respondent’s workmanship on the cabinetry in the residence. Mr. Newlin said that Respondent did not disclose that KSW was owned by the Respondent. Mr. Newlin said that he was under the impression that the Respondent and KSW were separate entities. Mr. Newlin opined that Respondent had failed to comply with the terms of the Registrar’s written Directive. Mr. Newlin’s testimony is found to be credible. Robert Stephanie (hereinafter “Mr. Stephanie”) testified that he personally worked on the cabinetry in the residence. Mr. Stephanie said that items in the written Directive were cosmetic items that could be easily corrected. Biagio Fiasche (hereinafter “Mr. Fiasche”) testified that he had worked for the Respondent for two years. Mr. Fiasche stated that he had become involved in the matter because the previous individual who had been handling the matter was no longer employed by Respondent. Ian Tull (hereinafter “Mr. Tull”) testified that he is the field operations manager for the Respondent. Mr. Tull said that he had been with the Respondent for seven years. Mr. Tull said that many of the problems on the jobsite were caused by the Complainant and the lack of communication between the Complainant and the Respondent. Mr. Tull testified that he was present when measurements for the cabinetry were taken and that Complainant informed Respondent to build the cabinetry per the measurements provided for areas where construction was not complete. Mr. Tull said that the electrical boxes were not present when field measurements were taken. Mr. Tull said that typically the Respondent does not build cabinetry without field measurements. Catherine Monaghan (hereinafter “Ms. Monaghan”) testified that she is the showroom manager Kitchens Southwest. Ms. Monaghan said that Kitchens Southwest handles several different cabinet manufacturers. Ms. Monaghan stated that she was not involved with the initial field measurements at the residence. Ms. Monaghan said that she did have conversations with Mr. Newlin regarding Mr. Newlin’s budget concern. Ms. Monaghan said that because of Mr. Newlin’s budgetary concerns Kitchen Southwest recommended the use of Oakcraft Cabinets. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[3] The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence.[4] A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”[5] Investigator Dimond credibly testified that he performed a compliance inspection at Complainant’s residence on December 3, 2015. Investigator Dimond said that Item Nos. 1, 5 and 7 of the written Directive had not been corrected. Investigator Dimond stated that Respondent had failed to fully comply with the terms of the January 28, 2015 written directive. Complainant established by a preponderance of the evidence that Respondent failed to comply with the Registrar’s written Directive. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32- 1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. CR60.274336-D of Respondent shall be suspended for five (5) days. It is further recommended that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s licenses effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent 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 this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification Done this day, December 22, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[2] A.R.S. § 32-1154(A)(22) provides as follows:

Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. [3] A.R.S. § 32-1154(A). [4] A.A.C. R2-19-119. [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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