ALJDEC decisions subject to certification as final

2015A-2922-ROC · Registrar of Contractors · 2016-02-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 7, 2016 and January 25, 2016 APPEARANCES: Dexter Rose, President of All Teriors Floor Covering, Inc. appeared on behalf of Complainant. Philip Blackerby, Vice President of J.F.S. Enterprises Corporation dba Fountain Hills Design Center, appeared on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT 1. J.F.S Enterprises Corporation dba Fountain Hills Design Center (Respondent) is the holder of License No. 277850 issued by the Registrar of Contractors (Registrar). 2. All Teriors Floor Covering, Inc. (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay $7,899.96 stemming from an invoice dated March 20, 2015, for replacement cabinetry ordered for the home of one of Respondent’s interior design clients, Gary Jones and Marian Connlley-Jones (collectively “the Connellys”). Exhibit 10 is an invoice which was created after the replacement cabinetry had been installed on February 19, 2015. 3. The parties agreed that Complainant had been paid $27,950.00 for cabinets per its original proposal. See Exhibit 1. The dispute between the parties concerns the reason why replacement cabinetry was ordered and whether Respondent agreed to pay any additional amount for the replacement cabinetry. 4. Complainant produced a document dated January 5, 2015, signed by Respondent confirming the specification for the replacement cabinetry. This document does not specify whether Respondent or the Connellys agreed to pay any additional amounts for the replacement cabinetry. See Exhibit 7 (referring to the replacement order as a “project correction”). 5. Complainant contends the replacement order was necessitated by Respondent’s error while Respondent claims Complainant misrepresented the color of the original cabinetry by offering a sample and then claiming that wood was no longer available. 6. The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a formal Citation charging Respondent with a possible violation of A.R.S. § 32-1154(A)(10). 7. Dexter Rose testified that Respondent accepted his proposal to provide kitchen cabinets for the Connellys and paid a 50% deposit on September 19, 2014. He indicated that the Connellys and Alice Blackerby first selected a walnut natural color and then sought a color change from walnut to cherry which he thought was a bit drastic so he recommended using Salem instead. With Respondent’s and the Connellys’ consent, he then ordered the cherry Salem cabinets. Dexter indicated that when the original cabinets were installed Alice told Dexter that she had made a mistake and that the color of the cabinets would not work. According to Dexter, Alice requested that he not install the cabinet doors, but did not ask him to uninstall the boxes. He then suggested that he could order new drawers and door fronts and “skin” the cabinets. He recalled Alice asking if she could pay for the replacement parts in installments without a deposit because she was behind on the project. Dexter agreed, but said the replacement parts would not be installed until the original cabinets had been paid in full. Dexter noted he wrote up the replacement specifications with no mention of price or who had made the error and obtained Respondent’s signature. He agreed that the replacement cabinets were installed in the Connelly home on February 19, 2015, the day Respondent paid the remaining balance on the original cabinetry. 8. Dexter indicated that it was only after receiving the March 20, 2015 invoice that Alice concocted a story that Complainant had made an error regarding the color of the cabinets. He claimed that Alice said she had made a mistake in agreeing to pay more for replacement parts and then refused to communicate with him, leading to the filing of the Complaint with the Registrar. 9. Tina Rose testified that she is the vice president of Complainant. She wondered why if the color of the cabinets was the fault of Complainant, Alice accepted installation of the cabinet boxes. She also believed that Respondent’s full payment for the original cabinets negates its argument that color of the cabinets was Complainant’s error. She noted that Dexter has no interest in the color, species of wood, or stain that Complainant’s customers order. 10. Marion Connelly-Jones testified that she is one of the homeowners who received the cabinets at issue. She noted that she resides in both Arizona and Utah. She recalled receiving a telephone call from Alice while in Utah noting that there was a problem with the cabinets in that Dexter told her the original walnut wood chosen from the sample was not available. Alice informed her that Dexter recommended changing to cherry wood and she agreed after being assured that it would not change anything except the grain of the wood. When the cabinets were installed, Ms. Connelly-Jones noted she was not happy with the color. She also recalled having a lot of problems with Complainant, although she did tip its installers. 11. Gary Jones testified that he is another of the homeowners who received the cabinets at issue. He agreed with Ms. Connelly-Jones as to what necessitated the color change, namely the fact that walnut was not available. He noted that he did not want to continue working with Complainant at that juncture because Dexter had told them he would have the cabinets in eight to ten weeks and after five months claimed that walnut cabinets were unavailable. He indicated that on February 19, 2015, he had a conversation with Complainant and Respondent during which Complainant admitted to workmanship issues that were the subject of a cross-claim with the Registrar. He acknowledged that cross-claim had settled and was not an issue in these proceedings. Mr. Jones noted their only error was believing the color of the cabinets would remain the same regardless of the type of wood used. 12. Philip Blackerby testified that he is the vice president of Respondent. He indicated that the cabinets Complainant delivered had excessive color variation from the sample proffered by Complainant. He maintained that Respondent and the Connellys always wanted cabinets that were Macassar Ebony like the sample shown on the first page of Exhibit A. The project delivered was far lighter in color and did not match the other décor as shown by the side-by-side comparison between the sample and delivered product at Exhibit 2, page 2. He surmised that Complainant Had neglected to order a required finish. He explained that Respondent paid for the cabinets in full on February 19, 2015 after the correct cabinetry was installed and never agreed to pay any additional monies. 13. Alice Blackerby testified that she is the qualifying party of Respondent. Shed indicated that she and her clients the Connellys wanted to order cabinets as shown to them via sample from Complainant. Before the order was placed, she recalled being informed by Dexter that the walnut wood in the sample was unavailable. Alice emphasized that Dexter told her a change to cherry wood would affect the grain of the wood, but not the color of the sample. Alice noted she was onsite the day the original cabinets were delivered and had no reason to suspect a color problem with the boxes, which appeared dark like the sample. Once the first cabinet door came out of the box, it was obvious the color was wrong and she put a stop to the job. Alice indicated that her clients wanted to demand a full refund, but she tried to work with Dexter while he agreed to reorder the doors. She denied ever telling Dexter she had made a mistake regarding the color of the doors or agreeing to pay Complainant any additional monies for replacement parts. She stated that when she was asked to approve specifications for the reorder she did so only after confirming with the manufacturer that this order would produce the correct color. She denied ever refusing to be sent a sample of the cherry Salem wood color or telling Dennis that she thought the wood the Connellys picked out was too dark and should be ordered in a lighter shade. She acknowledged there was not a five-month delay in receiving the cabinets originally, but said Complainant was three weeks late on its delivery date of the first set of cabinets. CONCLUSIONS OF LAW 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. See A.A.C. R2-19-119. 2. 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. A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, [f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

4. In the absence of a written agreement between the parties relative to who would bear the cost associated with replacement cabinetry once Complainant received full payment on the parties’ original contract, the Tribunal cannot determine by a preponderance of the evidence that such an agreement to pay an additional $7,899.96 existed. While Complainant is adamant that such an agreement existed, Respondent is equally convinced that no agreement was reached and that any work performed was already paid for under the parties’ original contract. Where, as here, the evidence is of equal weight, Complainant has failed to meet it burden of proof that Respondent violated A.R.S. § 32- 1154(A)(10). RECOMMENDed order Complainant’s Complaint should be dismissed. 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 40 days from the date of the certification .Done this day, February 11, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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