ALJDEC decisions subject to certification as final

2020A-03638-CHC-ROC · Registrar of Contractors · 2021-05-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Naylan Whiting,

COMPLAINANT,

Robinson Trim, LLC

License Number ROC 245122,

RESPONDENT.

No. 2020A-03638-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 20, 2021

APPEARANCES: David E. Campbell and Victoria Ames, Esq. appeared on behalf of Complainant Naylan Whiting. Mark A. Tucker, Esq. appeared on behalf of Respondent Robinson Trim, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDING OF FACT

1. Robinson Trim, LLC (Robinson Trim) holds license number 245122 issued by the Registrar of Contractors (the Registrar).

2. Jared Robinson is the qualifying party for Robinson Trim.

3. On or about January 18, 2019, Complainant Naylan Whiting entered into a home remodeling contract with Robinson Trim.

4. On or about February 15, 2019, Robinson Trim began work.

5. Robinson Trim agreed to install 5 1⁄2 inch baseboards in Mr. Whiting’s home. However, Robinson Trim installed 5 inch baseboards.

6. On or about September 10, 2019, Robinson Trim completed the work.

7. After Robinson Trim completed the work, a different contractor hired by Mr. Whiting installed tile close to the perimeter wall baseboards of Mr. Whiting’s house.

8. On or about August 3, 2020, the Registrar received a complaint from

Mr. Whiting alleging poor work on the part of Robinson Trim.

9. On or about August 3, 2020, the complaint was assigned to Registrar Investigator Beau Cruz.

10. Investigator Randy Cason is the Assistant Chief of Investigations at the Registrar.

11. On August 31, 2020, Investigator Beau Cruz conducted a job-site inspection.

12. On or about September 1, 2020, the Registrar issued a Directive

against Robinson Trim’s license. Through the Directive, the Registrar directed Robinson Trim to correct Complaint Items 3, 4, and 8 by appropriate means. The Registrar did not require that Robinson Trim correct Complaint Items 1, 2, 4, 5, 6,

and 7. The September 1, 2020 Directive provided, in relevant part, as follows:

Complaint Item 3: Baseboard put in house was not what was on the invoice. It shows 5 1/2" but we received 5"

Investigator’s Observation: Respondent installed 1⁄2” x 5” baseboard, and not 1⁄2” x 5 1⁄2” as noted on invoice.

Governing Rule: Workmanship Rule: A.R.S. 32-1154 (A)(2) states “Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.”

Complaint Item 4: Baseboard also on certain parts in the house doesn't match the rest of the house. We asked for miter cuts but we got butted joints in some parts of the house.

Investigator’s Observation: Butted baseboard joint on the left rear of the main floor closet. All others are mitered.

Governing Rule: Workmanship Rule: Workmanship Rule: A.R.S. §32-1154(A)(3), namely R4-9-108(A) A contractor shall perform all work in a professional and workmanlike manner.

Addendum at jobsite inspection, respondent agreed to address.

Complaint Item 8: Faux drawer front is crooked.

Investigator’s Observation: Left "faux" drawer front below kitchen sink is crooked and not on same level horizontal plane as the right "faux" drawer front.

Governing Rule: Workmanship Rule: Workmanship Rule: A.R.S. §32-1154(A)(3), namely R4-9-108(A) A contractor shall perform all work in a professional and workmanlike manner.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 1: We have doors still cracking on cabinet doors and drawers. We will have the doors marked.

Investigator’s Observation: Hairline cracks noted between the stile and rails of cabinet doors and drawers.

Governing Rule: N/A: Complainant failed to reveal allegation. It should be noted that hairline cracks are unavoidable on painted wood cabinets and are not a defect or a sign of poor quality. Because wood naturally expands and

contracts with changes in temperature and humidity, there is movement at the seams of the cabinet doors that will look like the paint is “cracking” at the joints. Hairline cracks occur wherever there’s a joint between pieces of wood with grain running in different directions.

Complaint Item 2: Crown moulding still cracking from previous claim it will be marked

Investigator’s Observation: Hairline crack at the right mitered joint of the crown molding above the glass paneled cabinets to left of microwave/oven area.

Governing Rule: N/A: Complainant failed to reveal allegation. It should be noted that hairline cracks are unavoidable on painted wood surfaces/trim and are not a defect or a sign of poor quality. Because wood naturally expands and contracts with changes in temperature and humidity, there is movement at the seams of the mitered joints that will look like the paint is “cracking” at the joints.

Complaint Item 5: Cabinet on top left & right facing microwave is cracking where new top cabinets were added.

Investigator’s Observation: Hairline crack at joint between wall paneled cabinets and glass paneled cabinets to left of microwave/oven area.

contracts with changes in temperature and humidity, there is movement at the seams of the joints that will look like the paint is “cracking” at the joints.

Complaint Item 6: Joints on drawers and cabinets not sanded and finished please explain how some are finished right and others are finished no the same.

Investigator’s Observation: Hairline cracks noted between the stile and rails of cabinet doors and drawers.

contracts with changes in temperature and humidity, there is movement at the seams of the joints that will look like the paint is “cracking” at the joints.

Complaint Item 7: Please have the subcontractor that installed baseboard come out so I can talk to them because jared was not there when they were doing the baseboards, how I wanted everything miter cut

Investigator’s Observation: Allegation by the complainant, does not implicate workmanship issue for me to observe and report on, included in these notes in the interest of administrative completeness.

Governing Rule: N/A: Allegation does not implicate workmanship issue.

Please direct all questions regarding this Directive to the undersigned Investigator.

13. The Registrar required that Robinson Trim correct the Directive items by September 30, 2020 at 5:00 p.m.

14. On September 8, 2020, Mr. Whiting sent the following electronic mail message (e-mail) to Investigator Cruz:

Did you ever get the contractor name and license number that did the baseboard for Robinson Trim. Also what's the next step for the Robinson Trim to fix the baseboards. Do I have my floor guy come out and give me an estimate?

Thanks,

Naylan

15. On September 9, 2020, at about 3:52 p.m., Mr. Robinson sent the following e-mail to Mr. Whiting:

Subject: Baseboards

I talked with the inspector and he asked me to call you to come

up with a fair solution for the baseboards. What would you like

me to do? Thank you,

16. On Sep 17, 2020, at 5:06 p.m., Mr. Whiting sent the following e-mail to Mr. Robinson:

Jared,

Again please see email below, it tells u everything.

In order to resolve the baseboards issue, we are wanting them to be replaced and done as originally requested. This would entail all surrounding tile to be removed by my tile guy, you coming out to remove and replace existing baseboards with the correct ones, and having my tile guy come out once more to lay the new tile down (purchased by you).

Thanks,

Naylan

17. On September 22, 2020, at about 7:51 a.m., Mr. Robinson sent the following e-mail message to Mr. Whiting:

Spoke to the [Registrar] and they are not requiring me to fund the tile. This is my offer below:

1. You remove the tile and we will remove and install all new 5-1/2” Baseboards throughout.

2. Leave the baseboards in that we have installed and I will discount to you the total cost of the baseboards from the total that is still owed, (not the installation since you will be keeping them). This is my preferred method of action as it will be the fastest. Total is $515.84. We can come and redo the base in the closet that you would like a miter cut and adjust the drawer front in the kitchen. I will write up a contract that describes what we will agree upon and it will need to be signed. As an incentive to move this quickly, I will kindly raise the total to $1000.00 off the total that is owed if it is executed by Friday before the end of day.

I believe this to be a fair solution to the mixup in material in your home. Please let me know your intensions asap as I

will need to get paperwork written up.

18. On September 22, 2020, at about 11:52 a.m., Mr. Whiting sent the following e-mail to Investigator Cruz and Investigator Cason:

I am still waiting for you guys to put in writing the things you and your supervisor examined to me yesterday.

1. Why Robinson Trim is not paying for my tile removal as he was the one who installed the wrong baseboards. Where is the directive on this? Where is the requirement or code that you guys talked about tile being away from baseboards? I don't see how Robinson Trim can mess up and install the wrong product and I have to pay for it. He also messed up the tile work in both upstairs bathrooms.

2. Why has the ROC not required Robinson Trim to provide information on who he hired to do the work in my house when you can enforce 32-1106 and 32-1183 prompt pay. This document will give you all the information you need. When I put in my complaint I had requested Robinson Trim to bring out his subcontractor that completed the work. When we met with the ROC Robinson Trim stated that he would give you guys the subcontractors, Mr. Cruz ask Jared about the subcontractor and why he wasn't here and Jared stated the subcontractor would just pass it on to him that's why he wasn't there and he would get us the information, that still has yet to be provided. I also should not have to pay for a lawyer to get this information that he should be providing.

19. On September 23, 2020 at 1:36 p.m., Investigator Cason sent the following e-mail to Mr. Whiting:

I just called you and left a message. I have a couple of questions regarding the tile floor installation. Could you give me a call back when you have time.

My number is (602) 771-6747.

Thank you,

Randy Cason

Assistant Chief of Investigations

20. On September 23, 2020 at 1:50 p.m., Investigator Cason sent the following e-mail message to Mr. Whiting:

Mr. Whiting.

Do you have the name of the contractor who installed the tile flooring and a copy of the contract that lists what type of material was installed.

I need this information to give you the correct industry standard listed in ANSI/TCNA regarding the gap that was not placed between the wall and the tile flooring.

Thank you,

Randy Cason

21. On September 23, 2020 at 3:25 p.m., Investigator Cason sent the

following e-mail to Mr. Whiting:

Mr. Whiting,

Depending on the type of material installed and how it was installed can determine how wide the gap needs to be between the wall and the tile.

This is why I asked for this information.

Regards,

Randy Cason

22. On September 23, 2020, Mr. Whiting notified Investigator Cason that he had installed a woodlike porcelain rectified tile.

23. On September 24, 2020 at 2:06 p.m., Investigator Cason sent the following e-mail to Mr. Whiting:

Mr. Whiting,

I still need the name of the person you hired to install the tile flooring. I need to ask him how the tile was installed to determine which Industry Standard is applicable.

Regards,

Randy Cason

24. On September 24, 2020, Mr. Whiting sent the following e-mail to

Investigator Cason:

Mr. Cason,

I am sorry but I don't see how you need this to determine if Robinson Trim is liable for the floor. You or Mr. Cruz provided Robinson Trim with information that we was not responsible for the baseboards, can you please tell me where that information came from? That should be the industry standard.

I feel that you guys are protecting Robinson Trim and not the customer. I paid for baseboards to be done a certain way and they were wrong. Has he provided you the information who installed my baseboards.

25. On September 24, 2020, Mr. Robinson sent the following e-mail

to Investigator Cruz:

Your very welcome. Any word from Mr. Whiting? He doesn’t respond to me.

Thank you,

Jared

Robinson Trim LLC

26. On September 25, 2020 at about 1:54 p.m., Investigator Cason sent the following e-mail to Mr. Whiting:

Mr. Whiting,

As I have explained in our previous correspondence. I am asking for this information to determine the appropriate industry standard set by ANSI/TCNA.

Based upon the pictures Inv. Cruz had taken during the jobsite inspection, it appears the floor tiles were applied directly to the concrete slab with a bonding/adhesive material. I believe the installer you hired did not apply a mortar bed, pourable underlayment or backerboard on top of the concrete slab first prior to installing the floor tiles.

In the 2019 TCNA Handbook for Ceramic, Glass and Stone Tile Installation listed under:

2019 | MOVEMENT JOINTS - EJ171 MOVEMENT JOINT GUIDELINES FOR CERAMIC, GLASS, AND STONE - it states:

Interior:

Perimeter joints at perimeter walls—not less than 1⁄4 “ and

commonly covered by tile trim, cove base, or shoe molding.

Perimeter joints, other than perimeter walls—preferred

not less than 1⁄4 “ but never less than 1/8 ”.

Change of plane—same as grout joint but never less than 1/8 inch.

As you are aware, the floor tiles are installed up right or close as possible to the perimeter walls baseboards.

During this investigation, you informed Inv. Cruz that you had instructed your installer to install the floor tiles in this

manner.

The Directive is requiring the respondent to correct the issue with the baseboards and not the tile flooring that was

installed by others.

During our previous correspondence, you questioned the Enforcement powers of the Registrar per A.R.S. 32-1106:

The ability of the Registrar to issue subpoenas during an investigation.

The Registrar can issue a subpoena during an investigation if it is deemed necessary to obtain additional information.

In this investigation, the respondent has complied to the Registrars request of the names of who had installed the

baseboards at your property.

The issuance of a subpoena is not necessary.

Regards,

Randy Cason

Assistant Chief of Investigations

1700 W Washington St Ste 105

Phoenix, AZ 85007

Phone(602) 771-6747

E-mail Randy.Cason @ ROC.AZ.GOV

27. On September 25, 2020 at about 2:29 p.m., Mr. Whiting sent the following e-mail to Investigator Cason and copied Investigator Cruz:

Good afternoon Mr. Cason,

I am needing someone to explain to me how if one contractor can do his work wrong and when he comes to fix his mistake, how he would not be responsible for damages done to another trades work that was done correctly? If the right baseboards were put in the first place, we wouldn't be having this conversation.

It is very simple legalities when discussing damaged items while fixing their own mistake. Whoever damages it is culpable and must fix it. Jared then would be responsible for any damage done to my tile when replacing the baseboards with the correct ones. Although an expansion gap is preferred by some when installing tile, it is merely a suggestion, and absolutely not a contracting law. The tile TCNA handbook guide is on a voluntary basis and I have no obligation to have my tile guy make room for a movement joint if it is not the look that I am going for. As stated in the Handbook "The TCNA Handbook is not a specification (p. 48, 2020 edition)". There are and have been no issues with my flooring whatsoever and has no effect on the fact that the baseboards are incorrect.

Thank you,

- Naylan Whiting

28. On September 28, 2020, Mr. Robinson notified Mr. Whiting by e-mail that Robinson Trim would come to his home and replace his baseboards with the correct baseboards as listed on the invoice, or, Robinson Trim would issue a refund to

Mr. Whiting for the baseboards in the amount of $515.84. See Complainant’s Exhibit 11, pg. 23.

29. On September 28, 2020, Investigator Cason an e-mail message to

Mr. Whiting. Investigator Cason extended the timeframe for compliance under the Directive to October 7, 2020:

Good afternoon Mr. Whiting,

The Registrar has reviewed your concerns pertaining to the directive order issued on September 1, 2020 The respondent is to complete the Directive Orders as stated by appropriate means.

Regarding Complaint Item #3 (Baseboard put in house was not what was on the invoice. It shows 5 1⁄2” but we received 5”)

The respondent will have to determine what is the “appropriate means” in resolving this issue. If the respondent determines that it is necessary to remove only the floors tiles (or not) that are located next to the baseboards in question this could be considered “appropriate means”. The area corrected will need to be returned to the condition prior to any corrections completed by the respondent.

The Directive Orders frame will be extended to October 7, 2020.

Regards,

Randy Cason

Assistant Chief of Investigations

1700 W Washington St S

30. On September 28, 2020, Mr. Whiting sent an e-mail message to Investigator Cason that provided:

Mr. Cason,

Why change the directive now? How do the respondant determine whats appropriate for my house? We paid for our baseboards to be put in our house a certain way and thats what we want, if he messes up my flooring or my walls he is going to pay for it.

Also I would like to have name the of the subcontractor that he hired to put my baseboards in my house. I do have the right to know who is coming into my house.

What is the correct way to demo baseboards because I have some baseboards upstairs were he messed up my tile.

It seems your verbiage continues to change and I can't help but to think race plays a part.

Please show me an example of an industry that can install a wrong product and have no obligation of replacing the item, CORRECTLY? I am the one who has been wronged, and then you proceed to say that Jarred gets to decide the appropriate means? This is absurd and I will not stand for it.

Thanks,

Naylan

Errors in original.

31. Robinson Trim did not correct the Directive items by October 7, 2020.

32. On or about October 16 2020, the Registrar issued a Citation against Robinson Trim’s license. Through the Citation, the Registrar alleged that Robinson Trim may have violated Ariz. Rev. Stat. section 32-1154(A)(2)(b); Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108(b); Ariz. Rev. Stat. section 32-1154(A)(22).

33. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of Robinson Trim.

34. Robinson Trim filed a timely answer to the Citation.

35. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

36. On or about December 4, 2020, the Registrar issued a Notice of Hearing setting the matter for hearing on January 11, 2021. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

37. A hearing was held on April 20, 2021.

38. At hearing, Mr. Whiting testified on behalf of himself. Investigator Cruz testified regarding his investigation of the complaint and the issuance of the Directive.

Mr. Robinson testified on behalf of Robinson Trim.

39. Mr. Whiting asserted that Robinson Trim performed poor work when it remodeled his home.

40. Mr. Robinson contended that Mr. Whiting denied Robinson Trim access to his home. Mr. Robinson explained that he offered to correct the items listed on the Directive. However, Mr. Whiting required that Robinson Trim pay for new tile.

Mr. Robinson explained that he has replaced baseboards without moving tile in the past. Mr. Robinson stated that he would not have known whether or not he would have been required to move the tile until he began the remedial work.

41. Mr. Whiting refuted that he denied access to Robinson Trim. Mr. Whiting stated that his home was always open. Mr. Whiting contended that Robinson Trim did not clarify whether the baseboards could be replaced without impacting the tile.

Mr. Whiting contended that Robinson Trim never tried to contact Mr. Whiting to set up a schedule for repairs. However, there was no evidence that Mr. Whiting made such an inquiry to Robinson Trim.

42. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on May 7, 2021, Robinson Trim’s license was first issued on May 17, 2008 and is active. Such prior License record also shows that there is only one open complaint against Robinson Trim, and that one complaint was closed against Robinson Trim that was resolved or settled by Robinson Trim or withdrawn by complainant after the issuance of a corrective work order or formal citation.

CONCLUSIONS OF LAW

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.

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).

The Administrative Law Judge may consider Registrar’s administrative

record. See Ariz. Admin. Code § R4-9-118.

The Registrar’s substantive policy statement 2017.01 sets out the following

pertinent information:

Denial of Access

Complainants are not prevented from refusing access because of their right to exclude others from their homes and it would not be appropriate to require contractors to trespass. [But it] is recognized that lack of access impinges on one party’s ability to defend itself and utilizing the benefits of the Registrar of Contractors is a privilege. Therefore, it is recommended that the Registrar dismiss complaints in which access is denied.”

***

The preponderance of the evidence shows that Mr. Whiting required that

Robinson Trim pay for new tile. The Registrar did not require in the Directive that Robinson Trim pay for new tile. Although Robinson Trim notified Mr. Whiting that it would correct the items listed in the Directive during the timeframe for compliance,

Mr. Whiting did allow Robinson Trim to make the repairs.

The preponderance of the evidence shows Mr. Whiting denied Robinson

Trim reasonable access to his home to correct the Directive items.

This Tribunal concludes that the preponderance of the evidence of record is

insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22).

RECOMMENDed order

In view of the foregoing, it is recommended that this matter be 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.