ALJDEC decisions subject to certification as final

2018A-1140-CHC-ROC · Registrar of Contractors · 2018-07-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Whitney Trick,

COMPLAINANT,

v.

CKBR LLC dba,

Complete Kitchen and Bath Remodeling,

License No: 266889, 297310

RESPONDENT.

No. 2018A-1140-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 19, 2018

APPEARANCES: Complainant Whitney Trick appeared on her own behalf. Donald Wilkerson, Owner, Member, and Qualifying Party, appeared on behalf of Respondent CKBR LLC doing business as Complete Kitchen and Bath Remodeling.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

CKBR LLC doing business as Complete Kitchen and Bath Remodeling (Respondent) is the holder of License Nos. 266889 and 297310 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 17, 2017, Whitney Trick (Complainant) signed a contract with Respondent for a kitchen and bath remodel. The total contract price was $32,000.00, of which Complainant paid a total of $28,800.00.

On or about March 12, 2018, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the complaint to Investigator Steven Nelsen. After a jobsite inspection, Investigator Nelsen issued a written directive to Respondent that provided 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 the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) 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 April 20, 2018.

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

Complete project as per contract.

Both parties agreed to a 4 week completion date at the 3/23/18 jobsite inspection.

The 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 performed some work on the project, but did not complete the project. After the deadline in the directive expired, Investigator Nelsen was notified the project was not completed.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

Investigator Nelsen testified that he completed a compliance inspection on April 25, 2018, and observed the project was not completed.

Complainant testified that when she contracted with Respondent, he indicated the project would start in January 2018 and would be completed in March 2018. Complainant stated that she had allowed Respondent to work on the project long after the deadline in the written directive in an effort to get the project done and Respondent last performed work on the project around June 13, 2018. Complainant testified as to the emotional toll Respondent’s failure to timely complete the project had taken on her and her family and her hope that the matter was resolved soon.

Mr. Wilkerson testified that he experienced financial problems that prevented Respondent from completing the project in a timely manner. Mr. Wilkerson admitted that Respondent abandoned the project and failed to comply with the written directive.

Administrative notice is taken of Respondent’s prior License records on July 26, 2018. Such prior License record reflects that Respondent’s License No. 266889 was first issued on July 16, 2010; was suspended for lack of bond from September 6, 2012, through September 13, 2012, and from February 11, 2016, through February 29, 2016; was suspended from November 28, 2016, through November 29, 2016, and from May 1, 2018, through May 2, 2018; and is current. Such prior License record also reflects that there were eight open complaints, two complaints resulting in discipline, three resolved/settled/withdrawn complaints against Respondent’s license.

Such prior License record reflects that Respondent’s License No. 297310 was first issued on April 10, 2015; was suspended for lack of bond from February 11, 2016, through February 29, 2016; was suspended from November 28, 2016, through November 29, 2016, and from May 1, 2018, through May 2, 2018; and is current. Such prior License record also reflects that there were no prior complaints against Respondent’s license.

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 violations 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).

The evidence established that Respondent failed to complete Complainant’s project as agreed upon. Therefore, Complainant established that Respondent abandoned the contract without legal excuse in violation of A.R.S. § 32-1154(A)(1).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent did not complete the project following the written directive from the Registrar being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of 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 shall revoke Respondent’s License Nos. 266889 and 297310.

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, July 26, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors