ALJDEC decisions subject to certification as final
2017A-4701-CHC-ROC · Registrar of Contractors · 2018-02-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Margo Ann Brindley,
COMPLAINANT,
v.
M 3 Remodeling L L C,
License No: 266973
RESPONDENT.
No. 2017A-4701-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 19, 2018 at 8:30 a.m.
APPEARANCES: Margo Ann Brindley (“Complainant” or “Mrs. Brindley”); Bill Brindley (“Mr. Brindley”); Debbie Manus (“Ms. Manus” representative for M3 Remodeling LLC “Respondent”); Brian Manus (“Mr. Manus” witness for Respondent); and Mike Crow (“Investigator Crow” for the Registrar of Contractors “ROC” or “Registrar”).
ADMINISTRATIVE LAW JUDGE: Linda Marie Brown
_____________________________________________________________________
A Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Based on testimony and evidence presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made.
FINDINGS OF FACT
Margo Ann Brindley (“Complainant”) is the owner/occupant of a residence located at 920 East Leeward Lane, Tempe, Arizona 85283.
On or about September 9, 2010, M 3 Remodeling LLC (“Respondent”) was issued a B3 General Remodeling and Repair Contractor, License No. 266973. Respondent’s address of record is 2465 East Hopi Avenue, Mesa, Arizona 85204. The Qualifying Party/Member is Brian Martin Manus, and Deborah Mechelle Manus is named Member. According to the Registrar’s public website, Respondent has had no prior complaints.
On September 13, 2017, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work. Specifically, “the finish on the cabinets has crystalized and turned white, just like they were before they were refinished.” Complainant stated contract amount, $8,104.00 plus tile and quartz, and amount paid, $8,104.00, although Estimate No. 176 dated September 16, 2015, set forth, reface or refinish cabinets-refinish kitchen cabinets, 30 doors, 17 drawer fronts, 144 sq ft of cabinet frames, moldings for cost of $3,625.00. Other work included in the Estimate was countertop fabricate and install new quartz counter top (cost of quartz to be determined) for cost of $3,197.00, and tile installation including grout 40 sq. ft. of tile for a cost of $300.00. The above costs did not include city or state tax which was estimated to be around $613.57 of the $8,104.00 total. Neither the new quartz counter top or tile installation and grout costs included in the Estimate are at issue in this Complaint. The parties agreed that Complainant would pay $4,052.41 at the start of the project, and the remainder upon completion.
Complaint also participated in the Building Confidence Program on or about July 25, 2017. In that notice to Respondent, Complainant stated, “the finish on the cabinet doors is inferior. The finish is stain and lacquer, but the lacquer crystallized.”
Investigator Steven Lawton performed a jobsite visit on August 14, 2017, and noted, “It was observed that there were a few cabinet doors that had the finish crystalize on the face of the doors. Cannot determine as to the cause, but there is not and clause in the contract as to not warranting work done due to the age or material of the cabinets. That being said there needs to be a determination as to the cause of the crystallization of the finish.” The file was closed on September 6, 2017.
Respondent replied to the Notice from the Registrar in response to the informal complaint, and stated that “Brian asked Mrs. Brindley if she wanted to replace the doors and drawer front. Mrs. Brindley was very adamant that her existing doors and drawer front be refinished, as funds were an issue. Please see attached texts or emails.” Respondent stated, “We have completely sanded them down and refinished them 4 times including the original kitchen refinish in 2015.” Because it was determined that over the course of approximately 26 years what had permeated the doors and drawer fronts, and that even if refinished it will still come back, it was determined the Complainant would need new doors. Respondent provided “an estimate to replace with new doors and drawers to match Complainant’s existing and the labor to stain, lacquer.”
Investigator Russell Reed was assigned to investigate the complaint. A jobsite inspection was conducted on October 11, 2017, in response to Complainant’s formal complaint filed on September 12, 2017, with the Registrar. Both Respondent and Complainant were present. Investigator Reed noted, “Complainant and respondent stated they have both sought out assistance from other parties and it was recommended that new door and drawer fronts be purchased and finished and installed.” Investigator Reed made the following observations: “cabinet doors and drawer fronts were taken off site and re-finished. They have been through this process twice. The current state of the drawer fronts and cabinet doors are: The finish has flaws in it, there are several areas that appear white in color and is not consistent with the finish in other areas. I can not determine the cause of this issue.”
On October 11, 2017, the Registrar issued a Directive to directing Respondent to remedy the following prior to October 31, 2017, “finish on cabinet doors and drawer fronts is not consistent and has a white in color flaw on several areas of said items.”
On October 17, 2017, Respondent wrote Complainant outlining three (3) proposal to remedy the complained of issue. Respondent asked for a response to the proposals no later than October 27, 2017. Respondent offered the following: (1) refinish the existing doors and drawer fronts which was not recommended due to age and whatever permeated the wood; (2) Complainant purchase new doors and Respondent will refinish with original stain and lacquer but will not be responsible for any hardware fit issues or discoloration based on wood factors that are beyond the control of Respondent since they would not be using their supplier; or (3) provide $500 to Complainant and walk. Complainant rejected all three proposed remedies.
The Registrar issued Respondent a Citation on November 15, 2017, citing two charges: Charge 1: “[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);” and Charge 2: 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.”
Respondent submitted its 100-page Written Answer to Citation and Complaint and exhibits to the Registrar on November 22, 2017.
On January 19, 2018, Investigator Michael Crow conducted a prehearing jobsite inspection and noted in his compliance findings that the Directive was incomplete.
An evidentiary hearing was held at the Office of Administrative Hearings. Both parties were present and provided testimony and evidence.
Complainant demanded a different style from the supplier of its choice. Complainant argued that they will have to pay for new doors and should be able to select the style and supplier.
Respondent argued that the doors are a different style from what Complainant has existing and are different from what they were initially contracted to reface or refinish. Respondent testified that they agree new doors are needed and that they made this recommendation to the Complainant at the time of contract but the Complainant decided to have the existing doors refinished. Respondent is concerned there will hardware issues as well as coloration issued as they have no business relationship with Complainant’s supplier and are concerned about warranty issues should the color not match up. Respondent argued that they offered product from their supplier but that Complainant rejected that offer.
Investigator Michael Crow credibly testified on behalf of the Registrar. Investigator Crow provided background information on the Registrar’s involvement in this matter. He stated that the Respondent was directed to find out what the “cause” is for the color flaw, and further stated that there was no clause by Respondent not to warrant.
Complainant argued that they are having to pay more money to have new doors installed and they should be able to select the style and where the doors are purchased, and that they choose to go with a local supplier.
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 made several good faith efforts to complete the Directive and any attempts were rejected by Complainant. This Tribunal finds that the only basis of the contract was Estimate No. 176, dated September 16, 2015. The Respondent completed the work on or about November 8, 2015. The informal complaint process began on or around July 27, 2017, which is approximately twenty months since the date the work was complete. No testimony or evidence was provided as to how the Complainant maintains or what product Complainant uses to clean the cabinets and/or what type of cleaning agents are used on the doors and drawer fronts.
Respondent made several attempts to remedy the complained of issue, and provided Complainant with three (3) reasonable proposals to remedy the complained of issue, and yet Complainant rejected all three (3) remedies, thus not allowing Respondent a reasonable means of access to comply with the written directive. Therefore, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(22).[1]
While there may have been a color flaw observed by the Investigator, contractors are not expected to perform flawless work without an opportunity to correct it, or take remedial action. Absent that opportunity to correct the work, Respondent cannot held responsible for those issues identified in the written directive. The Respondent was contracted to reface or refinish cabinets of the existing doors and successfully completed the project in 2015. Because it is unknown what elements may have contributed to the alleged flaws in the cabinet doors and drawer fronts that gave rise to an informal complaint in July 2017, Respondent has gone above and beyond to working with the Respondent to remedying the complained of issue as set forth in the Directive, and the Complainant rejected the reasonable remedies presented. In its best efforts, Respondent offered remedies that went beyond the scope of what it was initially contracted to perform to remedy and comply with the Directive; however, its attempts to remedy were rejected.
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 against M3 Remodeling, LLC, License No. 266973.
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, February 11, 2018.
/s/ Linda Marie Brown
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors