ALJDEC decisions subject to certification as final

2017A-2398-CHC-ROC · Registrar of Contractors · 2017-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joseph Leon Taylor,

COMPLAINANT,

v.

Affordable Cabinet Refinishing LLC,

License No: 308774,

RESPONDENT.

No. 2017A-2398-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 15, 2017

APPEARANCES: Joseph Leon Taylor (Complainant) appeared on his own behalf. Affordable Cabinet Refinishing, LLC was represented by its qualifying party, Christopher Botta.

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 2580 West Erie, Chandler, Arizona 85224.

Respondent holds Arizona Contractor’s License No: 308774.

On May 5, 2017, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work refinishing cabinets in his kitchen, bathroom and laundry room.

Thereafter, the Registrar assigned investigator Ted Stodder to investigate the complaint. Stodder testified that he arranged to perform an inspection on June 1, 2017, and notified Complainant and Respondent of the time and place of the inspection.

Both Complainant and Respondent were present at that inspection. Stodder indicated that at the time of an inspection, he substantiated three of Complainant’s allegations regarding light and missing paint on cabinets that needed finishing, blemishes that needed to be touched up, and vanity cabinet handles that need to be reinstalled. Stodder could not substantiate Complainant’s allegations regarding problems with the sheen on the cabinets because in Stodder’s view, sheen varies with both light and the grain of the wood and thus could not be traced to a problem with Respondent’s application. Stodder also declined to substantiate Complainant’s allegation that Respondent failed to use primer on the cabinets as provided in the contract because verifying this item would require destructive testing, which the Registrar does not do in the course of an inspection.

On June 7, 2017, Stodder 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 June 22, 2017.

You are hereby directed to remedy the following violations by appropriate means:

There are some light or missed painted cabinet areas that need to be finished.

There are some “blemishes” on painted cabinets that need to be touched up.

Cabinet handles on the upstairs bathroom vanity need to be changed to match the other vanities.

On the question about primer being applied per contract. Contract states “apply primer in all contact areas” only. It is the responsibility of the Complainant to prove there is no primer in the contact areas. If it is proven there is no primer in the contact areas, this complaint item can be revisited.

On the question about the difference in sheen. It has been determined the variations in sheen are within industry standards.

On June 22, 2017, Botta telephoned Stodder to ask about the status of the complaint and stated he had not received the Directive. Stodder provided Respondent with a copy of the Directive and extended the time for completion of the Directive until June 29, 2017.

On June 29, 2017, Botta arrived at Complainant’s house to complete repairs. He entered the bathroom and took off the handles on the vanity. As part of his work, Botta mixed putty and then started to wash his tools or a putty knife in the bathroom sink. Complainant took offense at the washing of the tools in the sink as he had repeatedly told Respondent’s workers not to wash their things in the house. As such, Complainant demanded that Botta take his things and leave the house.

Botta originally thought Complainant was joking because Complainant had stated he wanted the corrective work done. He attempted to continue his work, but Complainant again demanded he leave. Botta did so, before he had a chance to do the rest of the corrective work specified in the Directive.

Stodder received an email from Complainant describing what had happened between the parties on June 29, 2017. That email is not part of the record, but Stodder testified it acknowledged that Complainant asked Respondent to leave his home before corrective work was complete. Stodder forwarded the matter to the Registrar’s legal department for review.

On June 30, 2017, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[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 2 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.”

Hearing was convened at the Office of Administrative Hearings on August 15, 2017.

Complainant testified consistently with the facts detailed above as did Stodder. Complainant also brought in some cabinet doors, which he believed showed a lack of use of primer on the edge of the cabinet door. Stodder said he did not wish to change his position on the primer after looking at the doors because he could not ascertain whether the contact points had primer on them. Complainant also indicated he did not understand the difference between blemishes and problems with sheen. Stodder explained that sheen is distinct from a blemish because a blemish is like a scratch or thumbprint in the paint while sheen is gloss or finish. He noted that the variations in sheen are within industry standard.

Respondent agreed that there were some problems with its work that required correction. Respondent noted it had authorized three previous touch-up visits at no charge to attempt to address Complainant’s concerns. Respondent maintained that had Complainant not kicked Botta out of the home, he would have corrected the items identified in the Directive. Botta testified he still wanted to correct the items in question if Complainant would allow Respondent to do so.

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).

The evidence established that Respondent attempted to compete at least some of the corrective work following the Directive being issued, but that Complainant would not allow Respondent to remain on the property after Botta washed some of his things in the bathroom sink. Rather, Complainant demanded that Botta take his things and leave before Respondent’s corrective work was complete. Because Complainant did not allow access for Respondent to comply with the written directive, he did not establish that Respondent violated A.R.S. § 32-1154(A)(22).[1]

While there were workmanship issues as identified in the written directive, contractors are not expected to perform flawless work without an opportunity to correct it. Absent that opportunity to correct the work, Respondent cannot held responsible for those issues identified in the written directive. This Tribunal concludes that the preponderance of the evidence of record was insufficient and failed to support a conclusion that Respondent violated the charged provisions of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3),[2] and A.R.S. 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar dismiss Complainant’s complaint.

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, August 21, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors