ALJDEC decisions subject to certification as final

2020A-05458-CHC-ROC · Registrar of Contractors · 2021-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Amy Fackrell,

COMPLAINANT,

Blue Horizons Woodworking & Design LLC,

License No. ROC 324808,

RESPONDENT.

No. 2020A-05458-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 7, 2021

APPEARANCES: Karen A. Palecek, Esq. appeared on behalf of Complainant Amy Fackrell. David R. Appleton, Esq. appeared on behalf of Respondent Blue Horizons Woodworking & Design, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent Blue Horizons Woodworking & Design, LLC (Blue Horizons or Respondent) holds license number 324808 issued by the Registrar of Contractors (Registrar).

2. Jason Holzhousen is the qualifying party for Blue Horizons.

3. Complainant Amy Fackrell and Friedman Shields entered into a contract wherein Freidman Shields would remodel Ms. Fackrell’s home (the project).

4. Friedman Shields hired Blue Horizons as a subcontractor for the project.

5. Blue Horizons worked on the project from January 1, 2020 to June 1, 2020.

6. On or about November 19, 2020, the Registrar received a complaint from

Ms. Fackrell alleging incomplete and poor work on the part of Blue Horizons.

Ms. Fackrell also alleged that Blue Horizons abandoned the project. See the Registrar’s Administrative Record, pg. 308.

7. On December 29, 2020, Investigator Steve Klein conducted a job-site inspection.

8. On December 30, 2020, the Registrar issued a Directive against Blue Horizons’s license. The December 30, 2020 Directive provided, in relevant part, as follows:

Dear Respondent:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate

corrective action. 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 January, 20 2021

DIRECTIVE REQUIREMENTS

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

Complaint #1 Front Door — Glass panels not properly Sealed.

Inspector’s Observation: Verified leaks at glass.

Complaint #2 Front Door — Missing weather Stripping

Inspector’s Observation: Verified front door weather stripping is incomplete.

Complaint #4 Front door — Door missing latching Mechanism

Inspector’s Observation: Respondent states not in scope of work. No written record provided at time of inspection by either party.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #8 Hall Closet — Hanging rod not properly supported.

Inspector’s Observation: Verified rod is bending from weight, Respondent states the job is incomplete.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #17 Guest Bedroom — Mismatched finish on closet hanging rods

Inspector’s Observation: Verified the rod finishes are inconsistent with each other.

Complaint #18 Guest Bedroom — Shelving does not match submittals

Inspector’s Observation: Complainant states cabinet material and design wasn’t approved upon, prior to installation. No written record provided at time of inspection.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #21 Guest Bathroom — Unaccepted material / finish on interior of drawers.

Inspector’s Observation: Complainant states cabinet material wasn’t approved upon, prior to installation. No written record provided at time of inspection.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #23 Pantry — Shelving does not match submittal

Inspector’s Observation: Complainant states cabinet material and design wasn’t approved by her, prior to installation. No written record provided at time of inspection.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #28 Laundry Room — Poor design of drying rack drawers

Inspector’s Observation: Complainant states cabinet material and design wasn’t approved by her, prior to installation. No written record provided at time of inspection.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #33 Laundry Room — Missing hanger rod over sink.

Inspector’s Observation: Verified rod missing.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #38 Kitchen — Cabinet hardware missing throughout

Inspector’s Observation: Verified handles missing, Respondent states the job is incomplete.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #39 Kitchen — Unaccepted material / finish on interior of drawers.

Inspector’s Observation: Complainant states cabinet material and design wasn’t approved by her, prior to installation. No written record provided at time of inspection.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #40 Kitchen — Unapproved design for pull out shelf

Inspector’s Observation: Complainant states cabinet material and design wasn’t approved by her, prior to installation. No written record provided at time of inspection.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #41 Kitchen— Excessive gap at upper cabinet corner.

Inspector’s Observation: Respondent states job is incomplete, drawer and door adjustments are still needed.

Complaint #43 Kitchen — Upper cabinet hardware does not function

Inspector’s Observation: Respondent states job is incomplete, drawer and door adjustments are still needed.

Complaint #44 Kitchen — Upper cabinet hardware does not function

Inspector’s Observation: Respondent states job is incomplete, drawer and door adjustments are still needed.

Complaint #45 Kitchen — Uneven gap at left side upper cabinet

Inspector’s Observation: Respondent states job is incomplete, drawer and door

adjustments are still needed.

Complaint #46 Kitchen— Uneven bottom corner of upper cabinet

Inspector’s Observation: Respondent states job is incomplete, drawer and door adjustments are still needed.

Complaint #48 Kitchen — Cabinets are not level and Aligned

Inspector’s Observation: Respondent states job is incomplete, drawer and door adjustments are still needed.

Complaint #49 Kitchen — Drawer inserts not provided per agreement

Inspector’s Observation: No written record provided at time of inspection.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #50 Kitchen — Excessive patching of wood used in drawer assemblies. ...

Inspector’s Observation: Patching may be a manufactures issue. Complainant states cabinet material and design wasn’t approved by her, prior to installation. No written record provided at time of inspection.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #51 Kitchen — Rough unfinished edge at drawer insert

Inspector’s Observation: Verified rough edge at rear of utensil insert.

Complaint #52 Kitchen — Missing hardware at island

Inspector’s Observation: Verified missing hardware.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #53 Kitchen — Trash can inserts not properly attached.

Inspector’s Observation: Verified insert is not secured.

Complaint #56 Kitchen — Dishwasher unsecure and tips forward when open

Inspector’s Observation: Respondent agreed to correct.

Complaint #63 Hall Closet — Incomplete installation of closet shelving / poor design

Inspector’s Observation: Complainant states cabinet design wasn’t approved by her, prior to installation. No written record provided at time of inspection.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #79 Master Bath — Excessive patching of wood used in drawer assemblies

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #80 Master Bath — Hair dryer drawer insert not functional

Inspector’s Observation: Verified insert is not functioning as intended.

Complaint #81 Master Bath — Mismatched wood grain on drawer front

Inspector’s Observation: Respondent agreed to correct

Complaint #82 Master Bath — Missing hardware On drawer

Inspector’s Observation: Verified missing hardware.

Complaint #83 Master Bath — Linen cabinet door hits vanity counter

Inspector’s Observation: Respondent is willing to correct.

Complaint #89 Master Toilet — Cabinet door hits wall.

Inspector’s Observation: Respondent willing to correct.

Complaint #91 Master Toilet — Missing shelf in cabinet.

Inspector’s Observation: Verified missing shelf.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #92 Master Closet — Shelving not installed.

Inspector’s Observation: Verified missing shelf.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #94 Master Closet — Unaccepted material / finish on interior of drawers.

Inspector’s Observation: Complainant states cabinet material and design wasn’t approved by her, prior to installation. No written record provided at time of inspection.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #96 Master Closet — Installed shelving not per submittal

Inspector’s Observation: Complainant states cabinet material and design wasn’t approved by her, prior to installation. No written record provided at time of inspection.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #97 Master Closet — Shelving is incomplete.

Inspector’s Observation: Verified shelving is incomplete.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #98 Master Closet — Shims still in place and visible

Inspector’s Observation: Verified exposed shims.

Complaint #108 Aiden Closet — Closet shelving does not match submittal.

Inspector’s Observation: Complainant states cabinet material and design wasn’t approved by her, prior to installation. No written record provided at time of inspection.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #113 Aiden Bathroom — Drawers are not level and Aligned.

Inspector’s Observation: Respondent states job is incomplete, drawer and door adjustments are still needed.

Complaint #114 Aiden Bathroom — Unaccepted material / finish on interior of drawers.

Inspector’s Observation: Complainant states cabinet material and design wasn’t approved by her, prior to installation. No written record provided at time of inspection.

• Respondent shall complete project per original contract agreement, plans, specifications and/or properly executed change orders.

Complaint #115 Aiden Bathroom — Cabinet hardware does not properly function.

Inspector’s Observation: Respondent states job is incomplete, drawer and door adjustments are still needed.

9. Blue Horizons did not correct the Directive items by January 20, 2021.

10. On or about January 26, 2021, the Registrar issued a Citation against the license of Blue Horizons. Through the Citation, the Registrar alleged that Blue Horizons may have violated Ariz. Rev. Stat. section 32-1154(A)(3) (specifically, Ariz. Admin. Code section R4-9-108(a); Ariz. Rev. Stat. section 32-1154(A)(22).

11. 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 Blue Horizons.

12. Blue Horizons filed a timely answer to the Citation.

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

14. On or about March 5, 2021, the Registrar issued a Notice of Hearing setting the matter for hearing on April 7, 2021. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

15. On April 7, 2021, a hearing was conducted.

16. At hearing, Ms. Fackrell testified on behalf of herself and presented the testimony of Jeff Keenan. Investigator Klein testified regarding his investigation of the complaint and the issuance of the Directive. Blue Horizons presented the testimony of Mr. Holzhausen and Ms. Shields.

17. The evidence presented at hearing shows that on June 2, 2020, Complainant requested that Ms. Shields notify Mr. Holzhausen to stop work until she provided Friedman Shields with a memorandum and instructions, and until plans, drawings, measurements, and materials were approved. See Respondent’s Exhibit 1. Ms. Shields subsequently informed Mr. Holzhausen to stop work at Ms. Fackrell’s home. There was no evidence presented at hearing that Blue Horizons was notified by Friedman Shields to return to the project before the complaint was filed.

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).

3. The weight of the evidence presented at hearing shows that Complainant requested that Friedman Shields stop Blue Horizons from performing additional work until Complainant provided memorandum and instructions to Friedman Shields, and until plans, drawings, measurements, and materials were approved. There was no evidence presented at hearing that Blue Horizons was notified by Friedman Shields to return to work. The record is insufficient to establish that Blue Horizons failed to perform work in a professional and workmanlike manner because Blue Horizons halted construction at the direction of Complainant. Upon consideration of the evidence presented at hearing, this Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Blue Horizons failed to perform work in a professional and workmanlike manner in violation of A.A.C. R4-9-108(a), and thereby of A.R.S. § 32-1154(A)(3) and Ariz. Rev. Stat. section 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.

Done this day, April 27, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors