ALJDEC decisions subject to certification as final

2018A-2949-ROC · Registrar of Contractors · 2019-04-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 4, 2019 APPEARANCES: Robert Lovelace on his own behalf; Ellen Mary Nolan on her own behalf ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On December 17, 2018, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on February 11, 2019 at the Office of Administrative Hearing. 2. The matter was continued and the hearing was conducted on April 4, 2019. 3. Respondent Ellen Mary Nolan, dba Arizona Cabinet Refacing Company holds license No. 231597 issued by ROC. Ms. Nolan is the qualifying party. 4. Ms. Nolan appeared and testified and also presented the testimony of Mr. Russel Cafaro, her business partner. 5. Robert Lovelace is the Complainant. He appeared and testified and also presented the testimony of Dean Es-Kue co-owner of the property at issue. Mr. Lovelace and Mr. Es-Kue purported to have memory lapses on several points and their reliability is suspect. 6. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint. The Notice of Hearing does not provide the date the Citation was issued or when the complaint was issued or filed. 7. Through a Citation, ROC alleges that Arizona Cabinet may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Arizona Cabinet’s license. The Citation shows that ROC could not determine whether Arizona Cabinet has actually committed any of the alleged violations, which is why the matter was set for hearing. The Citation also shows that the Citation itself is not evidence that Arizona Cabinet has violated any statute or rule. 8. On August 7, 2017, Messrs. Lovelace and Es-Kue contracted to have Arizona Cabinet perform work including installing new cabinets and drawers, refacing the existing pantry, and work on a new bar unit. The original contract was for $25,000. 9. On August 14, 2017, the parties entered what they styled as a change order that added work in the bathrooms and the living room at a cost of $14,800. 10. Mr. Lovelace paid Arizona Cabinet $28,000 and received a credit for $3800 for a ring. Mr. Lovelace still owes $8000 and does not dispute this. 11. On June 27, 2018, Mr. Lovelace filed with ROC a complaint against Arizona Cabinet. 12. In response to Mr. Lovelace’s complaint, ROC Investigator Steve Philpot conducted a jobsite inspection on August 6, 2018. 13. Through a Directive dated August 24, 2018, ROC ordered Arizona Cabinet to make certain repairs: Complaint Item 2: Edge banding on doors & dwr fronts – sharp, can cut Complaint Item 5: Site applied "wired mercury" very bad Complaint Item 7: Entertainment cabinet not finished. Complaint Item 8: Some drawers drilled wrong for hardware. Complaint Item 9: Caulking by installer extremely bad – must redo Complaint Item 12: Soft close doors not closing slow & softly Complaint Item 14: Cannot remove bar refrig – installer did not follow inst. Complaint Item 17: Entertainment cass, door warping, facing coming off Complaint Item 19: Hinges missing on 40” cabinet door – entmt enter.

14. At the hearing, Mr. Philpot agreed that all the items which he had substantiated were “punch-list” items to fine tune the work that had been completed. 15. The Directive shows that ROC had determined that any other workmanship violations alleged in Mr. Lovelace’s complaint were unsubstantiated. 16. The Directive required Arizona Cabinet to provide ROC with written proof that it had made the required corrections by no later than 5:00 p.m. September 11, 2018. 17. Mr. Lovelace signed or initialed a copy of the Directive showing that Arizona Cabinet made all the required repairs except for Items 2 and 5. Item 2 could not be completed by September 11, 2018 because Arizona Cabinet required materials that were on back-order. Mr. Lovelace signed-off on Item 2 acknowledging that there would be a delay in completing that Item and he agreed that Item 5 could be completed when Item 2 was done. The evidence at hearing shows that the corrective work was completed on or prior to September 11, 2018. 18. Arizona Cabinet was scheduled to perform the remaining work in November 2018, but had to cancel its appointment because Mr. Cafaro was not feeling well and was subsequently hospitalized. 19. On November 13, 2018, after Arizona Cabinet canceled the appointment, Mr. Lovelace sent Mr. Philpot a notice showing that: “NO CORRECTIVE WORK HAS BEEN DONE, NOR SCHEDULED.” (Underscore in original.) 20. At the hearing, Mr. Lovelace acknowledged that this was not correct and he explained that he intended only to convey that no work had been completed on Items 2 and 5. Nevertheless, based on Mr. Lovelace’s Notice, Mr. Philpot did not conduct a compliance inspection that had been scheduled for November 14, 2018.[1] 21. November 15, 2018, ROC issued to Arizona Cabinet a Citation. 22. Wired mercury is a Membrane Pressed Product (3DL), that is like a laminate or thermo-foil, with the only difference being the finish. Wired mercury is a relatively new finish. Once wired mercury (or similar laminates) are applied, they cannot be removed. 23. Prior to the hearing, Arizona Cabinet had recovered the first application of wired mercury with a second application because Mr. Lovelace was of the opinion that the finish was poor. 24. At the hearing, Mr. Lovelace expressed his opinion that the new application of wired mercury was also not acceptable. There are two issues, there is a seam where two pieces come together and a general allegation that the surface itself is flawed. 25. Regarding the seam in the wired mercury, Arizona Cabinet provided credible evidence that seams will always be visible and that the appropriate solution is to apply a piece of molding. Arizona Cabinet did apply one piece of molding, which Mr. Es-Kue found to be acceptable, but Mr. Lovelace did not and he was unwilling accept the molding as a solution. 26. Regarding Mr. Lovelace’s allegation that the surface of the wired mercury is not acceptable, he offered no evidence to show that any workmanship standard had been violated. Arizona Cabinet had entered into evidence information from the manufacturer about the appropriate tolerances for its product, and evidence showing that wired mercury is highly reflective and that Mr. Lovelace’s house did not have a “normal lighting environment.” There was no evidence adduced showing that the manufacturer’s standards/tolerances had been violated, and the evidence shows that what Mr. Lovelace perceives to be flaws may be the result of the reflective nature of the wired mercury and the lighting in the house. 27. Northern Contours made the cabinet doors and the edge banding and sent these to Castle Cabinets who installed the edge bands on the doors; Arizona Cabinet then installed these in Messrs. Lovelace and Es-Kue’s house. 28. Mr. Lovelace testified to the effect that his skin is such that it is subject to cutting more easily than others’ skin might be. 29. At the hearing, Mr. Lovelace acknowledged that Arizona Cabinet had filed down the edges of the doors and drawers that he had identified as having sharp edges, but he also testified that he had not actually shown Arizona Cabinet all the areas that he felt were deficient. 30. Mr. Cafaro testified to the effect that the edges are the result of the type of product that Messrs. Lovelace and Es-Kue chose, namely plank with acrylic. He added that Arizona Cabinet did not want to file the edges, but it had done so. 31. Although ROC’s Directive provides that Item 2 “Edge banding on doors & dwr fronts – sharp, can cut” required correction, Mr. Philpot’s Jobsite Inspection Notes show only one location at issue: “Investigator’s Observation: See photo # 2 of 35. This complaint item is substantiated. The door on the cabinet to the right of the dishwasher has a loose edge band. Respondent shall correct by appropriate means.” 32. Ms. Nolan and Mr. Cafaro both testified as to their beliefs that Mr. Lovelace filed his complaint to avoid paying Arizona Cabinet the remaining $8000 for the project. They also testified to the effect that this was part of a pattern on the part of Messrs. Lovelace and Es-Kue who had boasted of similar behavior. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3). 4. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. The was no substantial evidence adduced showing that Arizona Cabinet is unscrupulous, unqualified, or financially irresponsible. 9. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118. 10. Ariz. Rev. Stat. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 3. Violation of any rule adopted by the registrar. ***** 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

11. Ariz. Admin. Code section R4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.” 12. Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32- 1154(A)(22). 13. It has not been shown by a preponderance of the evidence that Arizona Cabinet failed to perform its work in a professional and workmanlike manner. Instead, the evidence shows that there were punch-list items that required attention and that at least some of Mr. Lovelace’s dissatisfaction is actually related to the products he and Mr. Es-Kue chose, rather than due to poor workmanship. 14. It has not been shown by the preponderance of the evidence that Arizona Cabinet violated Ariz. Rev. Stat. section 32-1154(A)(22) because there were no workmanship violations proven and because with the exception of Items 2 and 5, Arizona Cabinet nevertheless completed all repairs ROC ordered it to complete by the deadline imposed by ROC. Regarding Items 2 and 5, any failure on the part of Arizona Cabinet to complete those items was justified because it required parts that were on back-order and Mr. Lovelace agreed to extend the deadline imposed by ROC. 15. Consequently, this matter should be dismissed. RECOMMENDED ORDER IT IS ORDERED that on the effective date of the final Order in this matter, case number 2018-2949 is dismissed. 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 is forty days after the date of that certification.

Done this day, April 23, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The administrative record has Compliance Jobsite Inspection Notes that show no work was done, but no such inspection occurred.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826