ALJDEC decisions subject to certification as final

2021A-02372-CHC-ROC · Registrar of Contractors · 2021-11-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bryan Staub,

COMPLAINANT

Arizona Interiors and Millwork Inc

License No. ROC 147413,

RESPONDENT

No. 2021A-02372-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 27, 2021

APPEARANCES: Complainant Bryan Staub appeared on his own behalf. Jay Pendergast appeared on behalf of Respondent Arizona Interiors and Millwork Inc. Jack Grimm, Registrar of Contractors Investigator, appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Arizona Interiors and Millwork Inc (Respondent) is the holder of License No. 147413 issued by the Arizona Registrar of Contractors (Registrar).

On or about February 16, 2021, Bryan Staub (Complainant) entered into a contract for $29,000.00 with Respondent for the installation of a new kitchen, master and guest bathrooms and laundry room in his home.

On or about May 26, 2021, the Registrar received a Complaint containing six items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Jack Grimm. The jobsite inspection was performed on June 21, 2021.

Investigator Grimm then issued a Written Directive on or about June 24, 2021, to Respondent that provided as follows:

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 July 26, 2021.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item #1: Not performing as promised.

Investigators Observation: Addressing items listed in complaint Item #2 in this observation as well as that compliant item expresses concerns of delays. This is one of the major concerns expressed by the homeowners is that the project is not moving forward in a positive manner. Work is not getting completed and the contractors has not been on site very many hours in the last several weeks and has not worked at all since the jobsite inspection notice was sent to parties on 6-4-21. This project is not premade box cabinet components with the doors installed prior to the installation of the cabinet boxes. The backs sides and fronts are all installed on site with the doors and drawers installed after that work is completed. Parties state the doors and drawers are to be full overlay design. No doors or drawers are installed at the time of the inspection. I only saw one drawer track installed. No doors, drawers, hardware, false fronts, end cabinet skins, trim or end overlays are on site and my understanding is they may not have been made or ordered at this point as none of these components have been delivered to the home. Homeowners state there have been numerous delays and excuses for incomplete work and they have had to work around the incomplete cabinets just to keep the remodel project moving forward. The cabinets are incomplete in the kitchen, laundry room, powder bathroom, hall bathroom and master bathroom. Contract was signed on 2-16-21. Contract is poor with little details as to the components of this project. The submitted complaint did include a detailed list with dates and concerns provided by the complainant as to his contacts with Jay the cabinet installer. As of today it is 6-23-21 it has been 18 weeks since the contract was signed. Contract does not state estimated completion date. Homeowner states it was to be approximately 5 weeks from start. This project appears to have stopped moving forward towards completion.

*Complete work per contract and any other agreements between parties.

Governing Rule: 32-1154(A)(3) Poor or incomplete work

Complaint Item #4: Poor quality paint finishes. (Additional verbiage received from the complainant in email dated 6-4-21). Poor quality finish on cabinet fronts.

Investigators Observation: I was shown and observed overlay strips that is installed on the lower cabinet frames front leading edge that appears to be adhered to this edge and painted blue, the color that is to be the lower cabinet doors and drawers. Strip is poorly painted and paint has bleed onto the cabinet surface as the line and finish at this point at almost all the locations is poorly done. Thin installed strip also has what appears to be a raw edge. When viewing the front is blue, the edge is a natural color and the cabinet box is white. This application is poorly done and paint does not resemble what would be expected for a cabinet finish as it appears to be painted by hand with a brush. The location will be behind a door or drawer but would be visible when cabinet doors and drawers are open during use. Upper cabinets are white with a white overlay at front edge. I was not directed to view this condition on the upper cabinets. None of the other painted components for this project are on site or installed. One location of an end cabinet facing the dining room was painted the blue color. The homeowners had concerns about the sheen and finish. It appeared to match the sample that was on site regarding the correct color and finish.

*Correct locations of blue overlay strip at lower cabinets in all rooms that have blue lower cabinets for fit, finish and long term reliability.

Governing Rule: 32-1154(A)(3) Poor work.

(All errors contained in the original)

On July 29, 2021, 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).

On or about August 12, 2021, Respondent sent an Answer to the Registrar, detailing some of the challenges he faced during the project such as having to relocate his shop as well as delays with his suppliers and obtaining workers to help on the project.

On or about August 26, 2021, a Notice of Hearing was issued setting a hearing on October 7, 2021 at the Office of Administrative Hearings, an independent state agency. After a short continuance, a hearing was held on October 27, 2021.

At hearing, Investigator Grimm testified as to the Registrar’s involvement and the above timeline.

Investigator Grimm reviewed the photographs taken during the jobsite inspect which displayed the paint issues as well as the missing door and drawers as well as their components for installation.

Investigator Grimm testified that while the Directive deadline was probably not enough time for Respondent to complete the project, there was no positive movement on the project during that time.

Investigator Grimm testified that there was no evidence at the jobsite that the missing drawers and other parts were present or that other items had been worked on during the corrective work period.

Also, Investigator Grimm testified that he would have allowed extra days to complete the project if he saw movement forward on the project.

Finally, Investigator Grimm testified that aside from the painting issues, the quality of the cabinetry present was good, but the complaint was more based upon the incomplete work performed.

Complainant testified on his own behalf as well as offering the testimony of his wife, Berry Staub. Complainant also offered two exhibits into evidence.

Complainant testified that the original agreement was to have the project completed by the beginning of May.

Also, Complainant testified that Mr. Pendergast requested money upfront to place him first and to commence ordering the cabinets.

Complainant testified that he was understanding when Mr. Pendergast needed to move locations and granted some extension on the timeline, but the delays were too much.

In addition, Complainant testified that it was not until the beginning of May, when the project commenced, but Mr. Pendergast still requested additional monies prior to work starting.

Complainant also testified that he and Mr. Pendergast met around May 4, 2021 to make final drawings and Mr. Pendergast agreed that the job would take two more weeks to complete.

Complainant testified that the job did not take two more weeks to complete and that nothing has been done in his house since June 21, 2021. Complainant testified however that he was confused as to why Mr. Pendergast told him during the corrective work period that “now he had the money” to order the doors, when he believed that they were ordered well before that given the money already provided.

Finally, Complainant testified that once the doors were ordered, he did not want to accept the same as it would have been another three and half to four weeks after the Directive expired before they would arrive.

Berry Staub testified they were very accommodating given Mr. Pendergast’s challenges with moving his shop, but were frustrated by all of the delays and lack of a detailed timeline to complete the project.

Mrs. Staub testified that on May 26, 2021, Mr. Pendergast informed them that the manufacturer lost the order for the doors, and offered to make the doors himself. Mrs. Staub testified however, that was not completed.

Mr. Pendergast testified on behalf of Respondent. He testified that the initial delay was caused by the fact that he had to move his shop and that set him back about 5 weeks.

In addition, Mr. Pendergast testified that he tried the best he could, but it was very difficult to find labor which even delayed him in installing the easy items while other items were on order.

Mr. Pendergast testified that he had the money for the doors at the end of May 2021, but the order was lost and did not re-order the drawers until the middle of the Directive timeline.

Also, Mr. Pendergast testified that although he offered to make the doors himself, he did not believe that his quality was as good as what he could order so he did not follow through with that offer.

Finally, Mr. Pendergast admitted he used the deposit money for rent and other expenses and did not complete any of the work required by the Directive.

Administrative notice is taken of Respondent’s prior License record on November 8, 2021. Such prior License record reflects that Respondent’s License No. 147413 was first issued on July 26, 1999, and reflects that there was one open complaint, namely the present complaint, and three prior complaints which resulted in license suspension. Also, the license is currently suspended as of August 2, 2021 for non-renewal.

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 Vazzano 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 preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Mr. Pendergast admitted that he did not complete the project. Further, from the jobsite pictures, it was clear that the painting was poor. 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(A).

The evidence also established Respondent failed to fully complete the corrective work following the Directive being issued. Mr. Pendergast admitted that no work was completed after the Directive was issued. Further, it was also unclear why the doors were not ordered sooner once it was discovered that the initial order in May was lost. The Tribunal sympathizes with Mr. Pendergast regarding his inability to find workers at this time, however, to accomplish no corrective work during the Directive period is unacceptable. 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. 147413 for a period of five 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)(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 30 days from the date of that certification.

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Done this day, November 8, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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