FINACT2019A-05295-CHC-ROC.pdf

2019A-05295-CHC-ROC · Registrar of Contractors · 2020-06-02

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Kyle and Jeannie Olsen , Case No. 2019-05295 COMPLAINANT, Docket No. 2019A-05295-CHC-ROC v. Mountain View Custom Cabinets Inc, FINAL ADMINISTRATIVE License No. ROC 058985, DECISION AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection of each finding of fact or conclusion of law. MODIFICATION AND WRITTEN JUSTIFICATION In this case, a hearing was held and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and modifies it. The administrative law judge recommended that the Registrar revoke Respondent’s License No. 058985 effective the date of this Order, based in part upon Respondent’s suspended status which it considered an “aggravating factor in imposing discipline.” ALJ Dec. 3:14-19, 5:1-3. The administrative law judge found that Respondent’s license was suspended at the time of the hearing. ALJ Dec. 3:15-16. However, the Registrar’s records indicate that the Respondent’s license was not suspended at the time of the hearing, but rather, was active. Because the administrative law judge’s recommended discipline was based on erroneous information, modification is appropriate.

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 CONCLUSION AND ORDER The Registrar hereby modifies the Administrative Law Judge Decision by: • Replacing, on page three, paragraph 15, line 17, “suspended” with “active”. • Striking the sentence beginning on page three, paragraph 2, line 24 through page four line 2, referring to Respondent’s suspended status. • Replacing page 5, lines 2 through 4 with “IT IS ORDERED Respondent’s License No. 058985 be suspended for a period of seven (7) days effective July 8, 2020.” IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500.00 payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to:

Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748 FINAL NOTE On page one, paragraph 2, line 17, “In February of 2016” is replaced with “On or about April 28, 2014”. On page two, line 15, “Complaint Item 11: Laundry room missing cabinet front” is replaced with “Complaint Item 11: Laundry room missing crown”. Dated May 29, 2020.

By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Copy mailed via USPS First Class mail May 29, 2020 to:

Respondent Mountain View Custom Cabinets Inc 23306 N 15th Ave Phoenix, AZ 85027

Complainant Kyle and Jeannie Olsen 20103 N 96th Way Scottsdale, AZ 85255

Copy sent electronically this same date to:

Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge

Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Case No. 2019-05295 / MB

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 5.6.2020 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kyle Olsen, No. 2019A-05295-CHC-ROC COMPLAINANT, v. ADMINISTRATIVE LAW JUDGE DECISION Mountain View Custom Cabinets Inc., License No. 058985, RESPONDENT.

HEARING: April 16, 2020 APPEARANCES: Kyle Olsen appeared on behalf of himself. No one appeared on behalf of Respondent Mountain View Custom Cabinets, Inc. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On or about February 21, 2014, Complainant Kyle Olsen and Respondent Mountain View Custom Cabinets, Inc. (Mountain View) entered into a residential remodeling contract. Mr. Olsen hired Mountain View to install cabinetry in his home. 2. In February of 2016, Mountain View started work on Mr. Olsen’s home. 1 3. On or about December 18, 2017, Mountain View stopped work on Mr. Olsen’s home. 4. On or about October 21, 2019, Mr. Olsen filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging poor workmanship on the part of Mountain View. 5. On or about December 11, 2019, Registrar Investigator David Fagerburg conducted a job site inspection. Investigator Fagerburg substantiated complaint items 2

through 19 listed from Mr. Olsen’s complaint.

6. On or about December 24, 2019, Investigator Fagerburg issued a

DIRECTIVE to Mountain View. Through the DIRECTIVE, the Registrar directed Mountain

1 Although the complaint shows that Mountain View started work in 2014, Mr. Olsen’s wife testified at hearing that Mountain View did not start work until February of 2016. RECEIVED 5.6.2020 ROC LEGAL

View to correct the following items by appropriate means, prior to 5:00 p.m. on January 14, 2020: Complaint Item 2: Missing drawer fronts secondary bathroom

Complaint Item 3: Missing baseboard secondary bathroom Complaint Item 4: Master closet missing drawer fronts/ install Complaint Item 5: Master bathroom missing baseboards

Complaint Item 6: Hallway closet missing baseboards Complaint Item 7: Hallway closet missing crown Complaint Item 8: Breakfast nook missing crown

Complaint Item 9: Breakfast nook missing baseboard

Complaint Item 10: Laundry room missing cabinet front Complaint Item 11: Laundry room missing cabinet front

Complaint Item 12: Laundry room missing baseboard

Complaint Item 13: 13. Kitchen missing baseboard Complaint Item 14: Kitchen to complete hanging cabinets

Complaint Item 15: Kitchen to finish trim piece on hood,

Complaint Item 16: Kitchen missing shelves inside cabinets Complaint Item 17: All cabinets need to be adjusted Complaint Item 18: All cabinets need to be detailed, pegs, and bumpers for all cabinets Complaint Item 19: Casita missing baseboards.

7. Mountain View failed to comply with the DIRECTIVE.

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8. On January 24, 2020, the Registrar issued a CITATION against Mountain View’s license for alleged violations of Arizona Revised Statutes (A.R.S.) sections 32-1154 (A)(3) and (A)(22). 9. Mountain View filed a timely answer to the CITATION. 10. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing. 11. On March 16, 2020, the Registrar issued a Notice of Hearing setting the matter for hearing on April 16, 2020. 12. A hearing was held on April 16, 2020. 13. Mr. Olsen testified on behalf of himself and presented the testimony of his wife, Jeanie Olsen. Investigator Fagerburg testified regarding his investigation of the complaint and issuance of the DIRECTIVE. 14. Mr. and Mrs. Olsen testified to the effect that Mountain View performed poor work when it installed new cabinets in their home. 15. Administrative notice is taken of Mountain View’s license history. According to the Registrar’s website on May 5, 2020. Mountain View’s license was issued on October 24, 1983, and is suspended. Mountain View’s license has been disciplined once. There are three open complaints against Mountain View’s license. Mountain View’s prior disciplinary history is considered an aggravating factor in imposing discipline. 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 suspended status of Respondent’s license does not deprive Complainant

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of its right to prosecute its complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint.2 This dispute lies within the Registrar’s jurisdiction to resolve.3 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. The preponderance of the evidence shows that the issues found by Investigator Fagerubrg constituted workmanship issues with the installation of cabinets in Mr. Olsen’s home. 5. The weight of the evidence established that the work by Mountain View was not in compliance with the Registrar’s workmanship standards. The preponderance of the evidence established that Mountain View did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32- 1154(A)(3).4 6. The preponderance of the evidence shows that Mountain View failed to correct the items listed in the Registrar’s DIRECTIVE without valid justification, which is a violation of ARIZ. REV. STAT. section 32-1154(A)(22).

See A.R.S. § 32-1154(C). That statute provides that “[t]he expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . . .” 3 See A.R.S. § 32-1101 et seq. A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” 4 RECEIVED 5.6.2020 ROC LEGAL

RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 058985 of Mountain View Custom Cabinets, Inc., be revoked. It is further recommended that Respondent be required 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 final order, Respondent’s license shall be revoked, 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)(7), 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, May 5, 2020.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors

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