ALJDEC decisions subject to certification as final
2018A-381-CHC-ROC · Registrar of Contractors · 2018-08-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Laurie Hallums,
COMPLAINANT,
v.
Richard Darrell Bagby dba,
National Countertops & Cabinets ,
License No: 111213
RESPONDENT.
No. 2018A-381-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 13 2018, 8:30 A.M.
APPEARANCES: Complainant Laurie Hallums appeared on her own behalf; Respondent Richard Bagby appeared on his own behalf
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Richard Darrell Bagby, dba National Countertops & Cabinets (Respondent), is the holder of License Number 111213 issued by the Registrar of Contractors (Registrar).
2. On or about January 26, 2018, Laurie Hallums (Complainant), filed a Complaint against Respondent with the Registrar alleging abandonment in connection with Respondent’s installation of cabinetry at her residence in Phoenix, Arizona (“project”). The Complaint reflected a contract amount of $23,511.90.
3. The Registrar performed an inspection of the project on March 5, 2018. Thereafter, the Registrar issued a Directive, dated March 13, 2018, requiring Respondent to correct various alleged deficiencies in Respondent’s work by April 2, 2018, as follows:
Correct all locations of poor paint, paint coverage and paint matching issues. Including inside of cabinets that are damaged with marks, glue, dings and poor paint coverage.
Complete and/or correct all trim at kitchen cabinets. Correct locations where cabinet sides (between boxes) are not tight one to another. Correct poor general assembly issues at joints of wood and flat panels in door frames.
Correct cabinet above refrigerator for level so refrigerator fits correctly. Complete microwave niche cabinet per provided instructions for flush mount install.
Correct corner door that drags on counter top.
Correct alignment of trash/recycle bin.
Correct un-level wood top at Kitchen Island.
Correct locations of un-level cabinets horizontally and vertically.
Adjust all doors and drawers for functionality and appearance.
4. The Registrar conducted a compliance inspection of the project on April 25, 2018, and noted that corrective work had not been fully completed as follows:.
1. Correct all locations of poor paint, paint coverage and paint matching issues. Including inside of cabinets that are damaged with marks, glue, dings and poor paint coverage.
INCOMPLETE: All doors and exterior of the cabinets have been re-painted. Still have issues of finish at the door panels in their frames as the joint is inconsistent with some areas caulked and other areas filled with paint and others with larger gaps. Observed two cabinet doors with dings and finish damage.
The large full height panel installed on the right end of the kitchen is poorly sanded and finished with fat caulk in joints.
2. Complete and/or correct all trim at kitchen cabinets. Correct locations where cabinet sides (between boxes) are not tight one to another. Correct poor general assembly issues at joints of wood and flat panels in door frames.
COMPLETE - with the exception of flat panels in door frames as stated in #1.
3. Correct cabinet above refrigerator for level so refrigerator fits correctly. Complete microwave niche cabinet per provided instructions for flush mount install.
COMPLETE
4. Correct corner door that drags on counter top.
COMPLETE
5. Correct alignment of trash/recycle bin.
COMPLETE
6. Correct un-level wood top at Kitchen Island.
COMPLETE
7. Correct locations of un-level cabinets horizontally and vertically.
COMPLETE
8. Adjust all doors and drawers for functionality and appearance.
INCOMPLETE: Gaps between doors up down and side to side are still inconsistent.
5. The Registrar then issued a Citation to Respondent, dated April 30, 2018, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for July 13, 2018, at 8:30 A.M.
7. At the July 13, 2018 hearing, Complainant Laurie Hallums testified on her own behalf; Respondent Richard Bagby testified on his own behalf and presented the testimony of Karen Tribby. Jack Grimm the Registrar Investigator (Investigator), testified on behalf of the Registrar.
8. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the project, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that all Directive items had been corrected with the exception of Directive Item No. 1 and No. 8. He further stated that he conducted a pre-hearing inspection on July 12, 2018, and observed that Directive Item No. 1 was still incomplete but that Directive Item No. 8 had been corrected and that any remaining gaps were within 1/8 inch tolerance. He testified that any inconsistent gapping near the crown molding claimed by Complainant was due to the ceiling not being level, which he stated was not the responsibility of Respondent.
9. Complainant Laurie Hallums testified that she agreed with the Investigator’s finding that Directive Item No. 1 was incomplete. She stated she disagreed with the Investigator’s finding that Directive Item Numbers 2, 3, 7, and 8 were completed. As to Directive Item No. 3, she expressed concern for the integrity of the niche that was cut out. As to Directive No. 7 and 8, she stated she believed no amount of adjustments would correct the problem because she believed the cabinets were not cut correctly and were not uniform.
10. Complainant acknowledged that since the issuance of the Directive, Respondent had sent workers to the residence to perform corrective work on March 22, 27, 28, 29, and April 6, 18, 19, 21, and May 7, 2018. Complainant further acknowledged Respondent’s offer to again spray paint the cabinets in place, her refusal of the offer, and her preference that they be painted off-site.
11. Respondent Richard Bagley testified that he agreed with the Investigator that the one remaining item, Directive Item No. 1, was not completed. He further testified that the installed cabinets were already repainted once and that he had offered to come back again to entirely repaint them as opposed to simply touching them up. He stated the paint would not blend with the rest of the kitchen if they were only touched up. He further stated that Complainant would not agree to have the cabinets spray painted again in place and instead required them to be removed from the residence and repainted off-site. He testified that this would have involved disassembling all the cabinets and the floor to ceiling panels, painting them off-site, and then reinstalling them.
12. Karen Tribby testified on behalf of Respondent that a paint touchup of the cabinets would not be sufficient to remedy the issues and that they would need to be spray painted for uniformity. She stated further that touch up would leave brush marks.
CONCLUSIONS OF LAW
1. 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.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. 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).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:
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....
5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”
6. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner and potentially in violation of A.R.S. § 32-1154(A)(3). Respondent did not contest the existence of the items in Directive Item No. 1 or the failure to completely correct those items.
7. With respect to Directive Item Numbers. 2, 3, 7, and 8, although Complainant disagreed with the Investigator’s findings that those items were completed by Respondent, Complainant did not present sufficient evidence to refute those findings. While the corrected items may not have been flawless or may not have met Complainant’s expectations, Complainant has not established that the work in that regard was not done in a professional and workmanlike manner.
8. A.R.S. § 32-1154(A)(22). Complainant has failed to present sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to complete corrective action. Complainant acknowledged the numerous trips by Respondent to perform corrective action. She further acknowledged Respondent’s offer to again repaint the cabinets and her refusal to allow repainting if done at her residence. While avoidance of the inconvenience of spray painting in the residence is understandable, it does not justify a refusal to permit Respondent to complete its corrective work as it proposed. Therefore, the Tribunal finds that such a refusal constitutes a valid justification for Respondent not completing the corrective work.
9. Accordingly, even though Complainant has established a potential violation of A.R.S. § 32-1154(A)(3), because a valid justification has been shown for Respondent not completing the corrective work, Complainant has failed to establish that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and (A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that the Citation and Complaint in this case shall be dismissed.
In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.
Done this day, August 2, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors