ALJDEC decisions subject to certification as final

2020A-02863-CHC-ROC · Registrar of Contractors · 2021-01-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dave Stepp,

COMPLAINANT

O C C Woodworking LLC

License Number ROC 242840,

RESPONDENT

No. 2020A-02863-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 12, 2021

APPEARANCES: Complainant Dave Stepp appeared on his own behalf. Todd Oswalt, Owner and Qualifying Party, appeared on behalf of Respondent O C C Woodworking LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

O C C Woodworking LLC (Respondent) is the holder of License No. 242840 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 28, 2019, Dave Stepp (Complainant) signed a contract with Respondent for cabinetry and crown molding. The total contract price was $76,352.39, and Complainant paid a deposit of $38,176.20.

On or about June 11, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Lazaro Bernal. After a jobsite inspection, Investigator Bernal issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on August 17th 2020.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Range top opening not built to fit range

Investigator’s Observation: Correct opening under range top by appropriate means.

. . . .

Compliance Item: 2 - Cracked wood

Investigator’s Observation: I noted the wood was cracked on the upper corner of the Kitchen island.

Respondent shall correct by the appropriate means.

. . . .

Compliance Item: 3 - . Paint runs

Investigator’s Observation: I noted paint run on a section of the upper laundry room cabinet.

. . . .

Compliance Item: 4 - Handle installation tore up cabinets

Investigator’s Observation: I noted numerous holes in the back side of various cabinet's drawers throughout the house . Holes were made to installed the drawer's handles, but the wood panels areas were splinted in the process.

Respondent shall correct by the appropriate means.

. . . .

Compliance Item: 5 - . Non aligning shelves

Investigator’s Observation: Verified: I noted various cabinet shelves throughout the house did not sit flat on the pegs.

Respondent shall correct by the appropriate means.

. . . .

Compliance Item: 6 - Non aligning doors

Investigator’s Observation: I noted the reveal on various top and bottom cabinet doors was inconsistent and uneven. I noted this issue in various cabinets throughout the house.

Respondent shall correct by the appropriate means.

. . . .

Compliance Item: 8 - . Unfinished wood trim pieces

Investigator’s Observation: Correct cabinet box hinge blocks for consistency in size and in finish. Correct unfinished edge on both sides at dishwasher.

. . . .

Compliance Item: 9 - Installed both inset (cabinet front panels) and pop out panels. Supposed to be all inset. Tried to fix by placing trim around pop outs, but now crown is not aligned. Crown molding reveals don't match. Door styles on bottom ends don't match. different reveals due to thickness of box frame.

Investigator’s Observation: Upper and lower cabinet door styles above oven should be consistent in size with the rest of the kitchen cabinets doors at 2 1/8". Correct crown molding at end right side above oven cabinets to match the rest of the crown molding in the kitchen also, Correct false panel on right side of kitchen island for alignment with doors.

. . . .

Compliance Item: 10 - jagged and shredded edges inside and outside cabinets.

Investigator’s Observation: Correct shelving with poorly cut ends.

Correct poorly cut box sides interior panels by appropriate means.

. . . .

Compliance Item: 12 - Bench seat with unfinished top

Investigator’s Observation: Bench sit should match front of cabinet finish.

Correct by appropriate means.

. . . .

Compliance Item: 15 - Split on counter top in center of study built in.

Investigator’s Observation: Correct poor joint on counter top at study built in. Correct poor joint on crown molding at study build.

Following the issuance of the written directive, Respondent performed additional work on the project to address those items identified as needing corrective action.

After the deadline in the directive expired, Investigator Bernal was notified that corrective work had been performed.

Investigator Bernal conducted a compliance jobsite inspection. At that time, Investigator Bernal noted that items 3 and 12 had been corrected. Investigator Bernal indicated that, while Respondent performed corrective work on items 1, 2, 4, 5, 6, 8, 9, 10, and 15, those items were not corrected to comply with the Registrar’s standards.

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

Investigator Bernal testified that the overall issue with the project was consistency. Investigator Bernal noted that the gaps in the cabinet reveals, each taken alone, may be within the Registrar’s tolerance, the inconsistency from one set of doors to the next was problematic. Investigator Bernal also indicated that the blocks for hinges were different sizes and were inconsistent. As to the splintering inside the drawers, some drawers had washers installed, some had different colored screws, and one drawer had an added layer of wood that would have to be removed if Complainant ever wanted to adjust or change the handles. With respect to the rough edges on the shelves, Investigator Bernal again noted the inconsistency between the shelves.

Complainant testified that in some places, he was able to fit one quarter between the door reveals and in other places he could fit three quarters. Complainant deferred to Investigator Bernal’s findings in most respects.

Mr. Oswalt maintained that the doors, when viewed from a reasonable distance, were not noticeably inconsistent. Mr. Oswalt also stated that the seams were only visible when a light was shined on them.

Administrative notice is taken of Respondent’s prior License record on January 15, 2021. Such prior License record reflects that Respondent’s License No. 242840 was first issued on February 25, 2008, and is active. Such prior License record also reflects that there were no other open complaints and one prior complaint resulting in discipline 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’s work was not in conformity with the Registrar’s standards given the notable lack of consistency in the work. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The evidence established that Respondent did not complete the corrective work following the Directive 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 suspend Respondent’s License No. 242840 for a period of three days.

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.

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-137160-45720000Done this day, January 15, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000