ALJDEC decisions subject to certification as final

2014A-1836-ROC · Registrar of Contractors · 2016-01-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 17, 2015, at 8:00 a.m. APPEARANCES: Steven R. Kuker (hereinafter “Complainant” or “Mr. Kuker”) appeared telephonically on his own behalf. American Kitchen Cabinets Inc., (hereinafter “Respondent”) appeared telephonically through its president, Roger Stern (hereinafter “Mr. Stern”). 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. CR60.146475-D issued by the Registrar. Respondent’s License is current. Respondent’s License was suspended for non-renewal from 08/01/2015 through 10/27/2015 and from August 1, 2012 through September 4, 2012. This is a residential matter in which on or about June 9, 2012, Complainant entered into an agreement with Respondent for the design and installation of new cabinetry at Complainant’s residence located at 8860 N. La Canada Dr., Tucson, Arizona, Arizona (hereinafter the “residence”). During the course of construction the Complainant became increasingly dissatisfied with Respondent’s workmanship at the construction project. On or about May 8, 2014, Complainant filed a Complaint against Respondent with the Registrar. The Complaint alleged that Complainant had paid Respondent $20,160.58 for the cabinetry work performed by Respondent and listed eighteen (18) items of alleged deficient workmanship performed by Respondent. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection at the residence. On September 25, 2014, a 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) Complaint of: “baseboard separated from frame of vanity”, jobsite found opening at face frame and cabinet. Contractor to correct by appropriate means. 2) …. No action required. 3) Complaint of: “trim on book shelve shows nail”, jobsite found nail protruding, contractor to correct by appropriate means. 4) Complaint of: “baseboard separated from frame under griddle”, jobsite found opening at face frame and cabinet, contractor to correct by appropriate means. 5) Complaint of: “cabinet to right of sink not attached”, jobsite found loose screw, contractor to correct by appropriate means. 6) Complaint of: base cabinets does not close properly”, jobsite found base cabinet drawers needing adjustment, contractor to correct by appropriate means. 7) Complaint of: “oven cabinet does not appear to be braced”, jobsite found oven not flush with cabinet face, contractor to correct by appropriate means. 8) ….no action required. 9) Complaint of: “drawers under over do not close properly”, jobsite found drawers needing adjustment, contractor to correct by appropriate means. 10) ….no action required. 11) Complaint of: “island cabinet drawers do not close properly”, jobsite found drawers needing adjustment, contractor to correct by appropriate means. 12) ….no action required. 13) ….no action required. 14) Complaint of: “upper cabinet to left of refridge has multiple screw holes and patch”, jobsite found patch on back of cabinet, contractor to correct by appropriate means. 15) ….no action required. 16) Complaint of” “microwave cabinet not cut to measurements”, jobsite found cabinet not cut properly, contractor to correct by appropriate means. 17) Complaint of dishwasher cabinet warped”, jobsite found not fit properly, contractor to correct by appropriate means. 18) Complaint of: “ordered 60” 40” installed”, jobsite found 60” not installed, contractor to correct by appropriate means.

Complainant alleged that Respondent failed to comply with the terms of the written Directive and requested that a citation be issued against Respondent’s licenses. On June 30, 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: 1: A violation of A.R.S. § 32-1154(A)(3) (“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)”).

2: A violation of A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action to comply 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.”).

Testimony The assigned Registrar Investigator, Frank Grochocki (hereinafter “Investigator Grochocki”), testified that he had performed the onsite inspection for this matter. Investigator Grochocki stated that he did not perform a prehearing or compliance inspection for this matter because no corrective work had been performed by the Respondent. Investigator Grochocki said that Respondent’s construction work failed to comply with applicable workmanship standards as set forth in the written Directive issued in this matter. Investigator Grochocki acknowledged that Respondent adjusted one or two drawers during the onsite inspection. Investigator Grochocki’s testimony is found to be credible. Mr. Kuker testified that he contracted with Respondent for the design and installation of new cabinetry in his residence that he was remodeling. Mr. Kuker stated that after the job was totally complete he prepared a punch list for the Respondent. Mr. Kuker said that Respondent failed to comply with his punch list and that he then filed a complaint against Respondent with the Registrar. Mr. Kuker said that Respondent failed to comply with the terms of the written Directive issued by the Registrar. Mr. Kuker acknowledged that he discussed scheduling with Mr. Stern. Mr. Kuker said that Respondent did not get back to him to schedule any repairs. Mr. Kuker said that Respondent did not perform any corrective work at his residence. Mr. Kuker’s testimony is found to be credible. Mr. Stern stated that Respondent did not install any appliances at Complainant’s residence. Mr. Stern said that Complainant should not have recourse on the installation of the blower unit because he did not pay Respondent for the installation. Mr. Stern acknowledged that he ordered the hood and did the cut-out for the hood. Mr. Stern said that Respondent did not install the blower. Mr. Stern said that he tried to schedule an appointment with Complainant to perform the other items on the written Directive and that Complainant requested Respondent to wait until Complainant could obtain a new blower unit. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] 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.[2] A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”[3] Investigator Grochocki credibly testified that Respondent’s construction work failed to comply with applicable workmanship standards as set forth in the written Directive issued in this matter and that Respondent failed to perform any corrective work at Complainant’s residence in response to the written Directive. Complainant credibly testified that Respondent failed to comply with the terms of the written Directive issued by the Registrar. Mr. Kuker acknowledged that he discussed scheduling with Mr. Stern. Mr. Kuker said that Respondent did not get back to him to schedule any repairs. Mr. Kuker said that Respondent did not perform any corrective work at his residence. Complainant established by a preponderance of the evidence that Respondent’s workmanship at the construction project at his residence failed to comply with applicable workmanship standards and that Respondent failed to comply with the terms of the Registrar’s written Directive. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that License No. CR60.146475-D of Respondent shall be suspended for two (2) days. It is further recommended that Respondent pay the sum of $250.00 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 license 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, January 4, 2016.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A). [2] A.A.C. R2-19-119. [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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