ALJDEC decisions subject to certification as final

2016A-3875-CHC-ROC · Registrar of Contractors · 2017-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James Edwin Terpstra,

COMPLAINANT,

v.

Remodel and Build AZ Inc.,

License No: 297420,

RESPONDENT.

No. 2016A-3875-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 21, 2017 and April 14, 2017

APPEARANCES: James Edwin Terpstra (Complainant) appeared on his own behalf. Remodel and Build AZ, Inc. (Respondent) was represented by Denise Troy, Esq.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Complainant is the owner/occupant of a residence located at 12889 East Desert Trail, Scottsdale, Arizona 85259

Respondent holds Arizona Contractor’s License No. 297420.

On October 3, 2016, Complainant filed a complaint with the Registrar against Builders Depo AZ, the entity that had furnished the materials for his kitchen remodel and recommended Respondent as an installer, alleging that Builders Depot had performed substandard work when remodeling his kitchen. All told, the complaint contained approximately 35 items. Because Builders Depot was not a licensed contractor, the Registrar treated the complaint as a complaint against Respondent, who was responsible for installing the items according to the design supplied by Builders Depot using the cabinets and other items Complainant purchased under a separate contract with Builders Depot.

The Registrar assigned investigator Randy Cason to investigate the complaint.

Cason scheduled a jobsite inspection for October 25, 2016, which both Complainant and Respondent attended. At the time of that inspection, Complainant provided a list of addendum complaint items, which Respondent agreed could be considered, bringing the total number of complaint items to 51.

Cason testified that he substantiated some, but not all of the workmanship issues. Cason based some of his findings regarding workmanship on the notion that Respondent had a duty to tell Complainant when the product/cabinets being installed differed from the planned design if Complainant was not aware of the deviation. He also found that Respondent had failed to pull the necessary permits for the electrical work in Complainant’s kitchen.

On November 16, 2016, Cason sent Respondent a Directive from the Registrar. The Directive stated in pertinent 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). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on December 2, 2016.

Complaint Item 1: “Electrical junction box hidden behind wall”

Complaint Item 2: “Improper electrical junction boxes in attic”

Complaint Item 4: “Electrical plugs on top of the cabinets were specified to be for our rope lights on one side of the plug and “hot” on the other side of plug for things such as Christmas lights. That did not happen”

Complaint Item 5: “The glass cabinet doors were modified and repainted by someone (They are not the original factory finish. By doing this, the factory warranty has been voided”

There are cabinet glass doors that are different sizes than shown on the Cabinet Design layout

Complaint Item 6: “The two-drawer cabinet still has not been installed”

The cabinet design shows two-drawer cabinet to be installed at the end of the upper cabinets that has the microwave unit installed in them

Complaint Item 7: “The garage door cabinet has not been installed”

The complainant is referring to the Pocket Doors listed on the Cabinet design layout located under the microwave unit

Complaint Item 8: “The doors above the microwave are the wrong size and wrong color. They are not according to the design”

Complaint Item 9: “The framing for the refrigerator/freezer was made to[o] short. To correct this, they raised the cabinets creating a gap which they covered with a piece of cheap painted wood”

Complaint Item 10: “The wrong cabinet was ordered for the size of the microwave. The hole was to[o] big resulting in an obvious patch”

Complaint Item 12: “Cabinets doors not adjusted”

Different size cabinet doors installed and spacing between the cabinet doors are not uniformed throughout the installation.

Complaint Item 13: “Cabinet installer split numerous cabinet frames”

Complaint Item 14: “There are some cabinet doors and frames that are splitting”

Complaint Item 15: “There are numerous warped cabinet doors”

There are two warped cabinet doors in the microwave cabinet unit

Complaint Item 17: “Many rubber bumpers on the doors are missing”

Complaint Item 18: “Ugly holes in sides of cabinet on microwave wall”

Complaint Item 19: “Filler on the left of the left cabinet is badly painted”

Complaint Item 20: “Toe kick improperly installed”

Complaint Item 21: “The freezer/refrigerator installation not completed”

Complaint Item 23: “The sliding glass doors (18’X10’) that were ordered are inside sliding glass doors instead of outside sliding glass doors. Consequently the doors leak and flood the kitchen floor when it rains”

NOTE: Respondent is to verify with manufacturer that appropriate Sliding Glass Door System had been installed or not.

Complaint Item 24: “The felt is missing on the top of sliding doors so the doors rub on metal, not felt”

Complaint Item25: “Track on top of new doors installed 180 degrees wrong”

Complaint Item 26: “Frame on closing end of glass doors installed crooked”

Complaint Item 28: “Doors installed improperly so felt at bottom is being scraped off”

Complaint Item 29: “The sliding glass doors have a gouge and numerous marks on the frame”

Complaint Item 30: “The sliding glass doors hang crooked”

Complaint Item 31: “The texturing of the walls around the sliding glass doors not consistent with other walls”

Complaint Item 32: “Left ‘gunk’ around sliding glass doors they installed”

Excess drywall texture is on the face of the sliding glass door frame next to lower cabinet

Complaint Item 33: “Hole in wall above cabinet”

Complaint Item 34: “The frame under the granite for table legs at the end of the island is not straight”

Complaint Item 38: “Final cleaning of remodeling promised but not done”

Complaint Item 39: “Numerous scratches in travertine floor made during remodel and promised to be repaired”

NOTE: There are also chipped tiles in front of refrigerator

Complaint Item 41: “Doors above oven rattle when oven door is closed”

Doors are missing bumper pads

Complaint Item 49: “There are marks on the outside of glass door frame”

You are hereby directed to correct the following violations by appropriate means.

The Directive period was extended until after the New Year because Complainant was not available from Thanksgiving through December 8, 2016 or from December 21 to 28, 2016. During that period, Respondent performed some corrective work, but did not finish.

On January 11, 2017, Pennington performed a compliance inspection at Complainant’s home. At that time, he found that Respondent had performed some corrective work, but not the majority. He therefore forwarded the file to the Registrar’s Legal Department for review.

On January 12, 2017 the Registrar issued Respondent a Citation. That Citation contained four charges. Charge 1 referenced “[d]eparture 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.” Charge 2 reflected “[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).” Charge 3 specified a violation of A.R.S. § 32-1154(A)(12), “[f]ailure in any material respect to comply with this chapter,” specifically A.R.S. § 32-1158(B) listing the required elements of a contract. Charge 4 specified a violation of A.R.S. § 32-1154(A)(22), namely “[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.”

On March 17, 2017, Cason contacted Complainant to inquire if a prehearing inspection was needed. Complainant told Cason that nothing had changed since the compliance inspection so Cason did not schedule another inspection.

Complainant’s comments were not accurate as Respondent had returned following the compliance inspection to rebuff the floor and adjust cabinet doors. The sliding door manufacturer had also been out to replace the door pane after January 11, 2017. Complainant indicated he was dissatisfied with this corrective work and decided on his own that it did not meet workmanship standards.

Complainant testified that he expected Builders Depot to supply the cabinets according to the design provided and denied making any changes to the design except for one written change order to shorten a wall and extend the pantry. He indicated that he was aware that certain cabinet doors did not comply with the design and as such refused to allow Respondent to install them. Regarding certain warped cabinet doors, Complainant acknowledged that Respondent offered to take them off and have them sent back to the manufacturer, but he refused, fearing that the doors would never be replaced. He noted that some of the cabinets were modular, but that some were custom made.

After listening to Complainant’s testimony, Cason clarified that, in his view, item numbers 5, 6, 7 and 15 on the Directive did not constitute workmanship violations by Respondent, but instead were disputes Complainant had with Builders Depot.

Kathryn C. Cates testified that she was a subcontractor for Builders Depot, who worked as an interior designer on Complainant’s kitchen. She said she also sold things on Respondent’s behalf during this timeframe. Cates indicated that Complainant and his wife were hands-on during the design process. Cates explained that Builders Depot supplies the product for the design and that Complainant was free to choose his own installer, but chose Respondent. Cates commented that the cabinets chosen by Respondent were modular and often needed filers installed to fit properly. Cates said she did not notice issues with the cabinet doors above the microwave and that Complainant chose the Celtic sliding glass door.

Robert Pearson, Respondent’s subcontractor who was the first installer to work at Complainant’s home, testified that he installed the cabinets in accordance with the planned design, but then made various changes at the request of Complainant without change orders. He noted that he reinstalled the island seven different times and said that the install, which should have taken three days, instead took months. Pearson said he had no issues with the installation and that he installed the toe kick in accordance with his practice and experience.

Thomas Lawrence Straub, owner of Respondent, testified that Respondent does some work with Builders Depot but that customers are free to hire whatever installer they like. He indicated that Respondent contracted to install Complainant’s kitchen and fix approximately 50 missing tiles in the kitchen. Straub noted that Respondent’s work involved demolishing cabinets, moving electrical, demoing the pantry and adding upper cabinets. Straub denied knowing that the electrical work Respondent performed required a permit prior to the first hearing in this matter, but then acknowledged that Respondent received the Directive in this case and then took no action before the first hearing to contact the city of Scottsdale and ascertain what permits may be required. Straub emphasized that Respondent was only responsible for installation of cabinetry and did not supply the products used in the kitchen.

Straub stated that at the time of the compliance inspection on January 10, 2017, Respondent had not completed its corrective work. He indicated that Respondent returned to rebuff and seal the floor and to adjust come cabinet doors. He commented that Complainant’s issues with the sliding glass door where handled by the glass door warranty company, which “found no fault in the installation” (Exhibit D), but replaced a defective glass pane. He testified that when the warranty company handled the pane replacement, it was aware of all of Complainant’s complaints regarding the sliding glass door.

Straub believed that many of Complainant’s complaints were the responsibility of other entities, such as Builders Depot or the glass door company. He maintained that Respondent had completed ninety-five percent of the work it was responsible for if specified in the Directive. With regard to the trim specified in item number 9, however, Straub indicated that there was “nothing to do with it, it’s perfect.” Regarding item number 17, Straub testified that he believed Respondent had installed all the stops provided by Builders Depot before the compliance inspection. Regarding item number 31, Straub said the paint had not been applied because Complainant failed to buy the requisite paint.

After hearing all the testimony, Cason clarified the Registrar’s position as follows:

A. The Registrar was not pursuing items 5, 6, 7, 8 and 15 as workmanship violations attributable to Respondent.

B. The Registrar took no position on whether items 12, 18, 20, 23, 24, 25, 28, 39, and 49 constituted workmanship violations.

C. The Registrar believed that items 1, 2 and 4 required a permit and that items 9, 10, 17, 19, 29, 31, 33, 34 and 38 continued to fall below the minimum workmanship standards.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

Undisputed credible evidence established that Respondent failed to pull required electrical permits and deviated from the design provided by Cates. Accordingly, Complainant has his burden to prove a violation of A.R.S. § 32-1154(A)(2).

Complainant failed to prove that the complaint items 5, 6, 7, 8, 12, 15, 18, 20, 23, 24, 25, 28, 39, and 49 constituted poor workmanship by Respondent. Many of these items relate to product supplied by entities other than Respondent. Other items were purportedly corrected by Respondent following the compliance inspection leading to Complainant’s inability to meet his burden of proof on this issue. Complainant belatedly sought a post-hearing inspection to address the condition of some of these items, but Respondent objected, noting that Complainant refused a prehearing inspection which would have addressed these items.

Credible evidence described at hearing and contained in the Registrar’s file established that Respondent did some work of questionable quality in Respondent’s home including, but not limited to, installing framing that was too short and undertaking a framing repair that was not uniform, installing a cabinet with a filler that did not fit, installing cabinets with missing stops and failing to apply paint, Thus, Complainant established Respondent’s work on the remainder of the complaint items specified in the Directive was not done 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).

Respondent’s counsel conceded it violated A.R.S. §32-11158(B) by failing to conclude its ROC license number and notice of Complainant’s right to file a complaint with the Registrar. Thus, Complainant has met its burden to prove a violation of A.R.S.§ 32-1158(B)

An A.R.S. § 32-1154(A)(22) violation is appropriate here given Respondent made inadequate effort to correct the workmanship issues contained in the Directive that were its responsibility. When confronted with a deficiency in the crown molding above the refrigerator freezer, Straub insisted Respondent’s work was perfect. In addition, Respondent failed to obtain the requisite permits for its electrical work on Complainant’s kitchen.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 297420 for a period of five (3) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’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 Respondent tenders payment of any outstanding prior civil penalty.

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, April 19, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors