ALJDEC decisions subject to certification as final

2015A-4749-ROC · Registrar of Contractors · 2016-07-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 1, 2016 APPEARANCES: Gregory Smith, Complainant; Thomas Simons, Respondent and qualifying party. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson, Esq. _____________________________________________________________________ FINDINGS OF FACT

Respondent, Tubac Woodworks, Inc. (Respondent) is the holder of License Number 223133 [CR60 FINISH CARPENTRY] issued by the Arizona Registrar of Contractors (Registrar). On or about August 14, 2015, Complainant entered into a written contract with Respondent to, among other things, construct and install upper and lower cabinets in Complainant’s residence. On or about November 13, 2015 the Registrar received a Complaint against Respondent from Complainant alleging Respondent performed poor work listing several particulars. The Registrar assigned the Complaint to ROC Investigator Arlo Houston. After a jobsite inspection January 14, 2016, Investigator Houston issued a written directive to Respondent on or about February 19, 2016, that provided as follows: “No fixed door panel was installed on wall cabinet like the base cabinet.” Addendum to contract with Tubac Woodworks, Inc dated August 14, 2015 specifies “End of cabinets on front wall to have fixed door on top & bottom.”

“Two corner wall cabinet doors are 42 inches high.” Addendum to contract with Tubac Woodworks, Inc dated August 14, 2015 specifies “All wall cabinet doors to be 40 inches or less in height to comply with the warping guarantee.”

Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent did not correct the items specified in Mr. Houston’s Corrective Work Order. On April 22, 2016, The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2).[1] and A.R.S. § 32- 1154(A)(22)[2] After proper notice to the parties, a hearing was held on July 1, 2016 Investigator Houston testified that at the compliance inspection the subject two corner wall cabinet doors remain at 42 inches tall, Moreover, the end of the cabinets on the front wall remain unchanged since the last inspection. Complainant determined to call no witnesses, other than himself. Exhibits C1, C2 , C7, C11 through and including C 19 (consisting of photographs) were offered into evidence without objection, admitted and considered. Exhibits C6 (ROC written directive), Exhibit C8 (letter), Exhibit C4 (Letter from Respondent to Mr. Houston) and C9 (site drawings) were offered into evidence without objection, admitted and considered. The Complainant testified that as to the two corner cabinet doors, the parties agreed by written change order that the two corner cabinet doors must be no higher than 40” in order to comply with a warping warranty of the manufacturer. The doors are and remain 42 inches tall. Regarding the end cabinets on the front wall, the lower cabinet is covered with a standard door covering that matches the other doors on the cabinets. However, the upper end cabinet is a flat board which, although the same cooler as the other cabinets, is not a door covering. The Respondent stipulated in the hearing that the Complainant’s contention regarding this end door covering is accurate and that the Respondent is ready and willing to immediately change the non-conforming upper cabinet covering to match the end cabinet door. Respondent and qualifying party, Thomas Simons, testified that regarding the height of the doors on the two end cabinets, the original drawings, contract and change order provided for cabinets of equal height with 40” doors on the corner cabinets. However, subsequent to the contract and change orders, the Complainant directed that the two corner cabinets be increased in height. Review of Exhibit C9’s drawings of the project plan reveal that the drawings of the corner cabinets showed pencil marks. Mr. Simons testified that the pencil marks were a post draftsmen addition of the Complainant and the Respondent indicating the Complainant’s insistence that there be an increase in the end-cabinets’ height. The increased height corner cabinets were built and installed. The cabinets required an increase from a 40 inch door, per the prior change order, to a 42 inch door covering. Unrebutted evidence was presented that the directive from the Complainant to increase the height of the corner door cabinets was not a part of the written change order. The increase in height was an oral change order from the Complainant after the plans were drawn and approved.. Mr. Simons testified that if he was to be directed to install 40” doors on the two corner cabinets to replace the 42” doors, there would be an unsightly gap remaining of the reveal of the cabinets. He testified it was impossible to replace the subject doors with 40” doors without pulling out the cabinets and replacing them with shorter cabinets. Mr. Simons contends the issue has arisen only because the Complainant’s change order to increase the height of the corner cabinets. He does not recall, before installation was commenced, whether discussion was had with the Complainant explaining that increasing the cabinet height would, by necessity, increase the door height over 40 inches. On the record, after a brief recess of the record wherein the parties discussed possible resolution of the corner cabinet issue, Mr. Simons offered the Complainant a life-time warranty against warping of the two corner cabinet doors. The Complainant declined the Respondent’s warranty offer. The Complainant also stated he would not accept Respondent’s offer to place 40 inch doors on the corner cabinets because they would be unsightly. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on July 9, 2016. Such prior License record reflects no negative action reflected on the Respondent’s license record.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. Complainant bears the burden of proof to establish Respondent’s statutory violation 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) As to the issue of poor workmanship regarding the installation of the upper- end of the front cabinet, the evidence established the Respondent installed an upper-end, front cabinet covering that did not match the lower cabinet covering. The Respondent stipulated to that fact. Therefore, Complainant DID ESTABLISH that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).[3] As to the workmanship of the two corner cabinets, the Respondent installed two 42 inch doors on two cabinets, the height of which cabinets were ordered increased by the Complainant after the original contract and after the Complainant’s written change orders. Installation of 40 inch doors onto the existing corner cabinets can not be accomplished without leaving the end result unsightly, below industry standard and practices or below workmanship standards. The correct 42 inch doors are mounted to the cabinets. It is not appropriate corrective action to replace the 42 inch doors with 40 inch doors. With regard to the two corner cabinet doors, the Complainant failed to establish that Respondent violated A.A.C. R4-9-108, A.R.S. § 32-1154(A) (3) or A.R.S. § 32-1154(A)(22).[4]

RECOMMENDED ORDER

Based on the foregoing, it is recommended that starting on the effective date of the Order, the Respondent’s License Number 223133 [CR60 FINISH CARPENTRY] shall be suspended unless, before the effective date of the Order, the Respondent provides proof by evidence satisfactory to the Registrar of Contractors that the item listed in Investigator Houston’s written directive to Respondent of February 19, 2016, has been remedied by appropriate means, to wit: “No fixed door panel was installed on wall cabinet like the base cabinet.” Addendum to contract with Tubac Woodworks, Inc dated August 14, 2015 specifies “End of cabinets on front wall to have fixed door on top & bottom.”

The Complainant shall permit access by the Respondent in order to comply with this Recommended Order. 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 the 10th day of July 2016..

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1]A.R.S. § 32-1154(A)(2). “Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [2] A.R.S. § 32-1154(A)(22) “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.” [3] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [4] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” (Emphasis added).

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