ALJDEC decisions subject to certification as final

2021A-02505-ROC · Registrar of Contractors · 2022-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

David Fowler

DBA: David’s Kitchen Design LLC,

License No. ,

RESPONDENT

No. 2021A-02505-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 3, 2022

APPEARANCES: Assistant Attorney General Sarah Asta represented Complainant Arizona Registrar of Contractors. Investigator Christopher Fultz appeared as a witness. Respondent David Fowler, doing business as David’s Kitchen Design, LLC, failed to appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Arizona Registrar of Contractors (“Registrar”).

FINDINGS OF FACT

Background and Procedure

On or about June 3, 2021, the Registrar received an Unlicensed Complaint from Phyllis Zanichkowsky (“Homeowner”) regarding poor work performed by David Fowler, doing business as David’s Kitchen Design, LLC (“Respondent”). The Unlicensed Complaint alleged that Respondent contracted to provide licensed installers to perform the installation of kitchen cabinets, however, Respondent performed the installation. The contract price was $13,326.00 and Homeowner paid Respondent $11,707.23.

On or about August 27, 2021, the Registrar issued to Respondent a Cease & Desist Order and a civil citation for violating A.R.S. § 32-1151, with a civil penalty in the amount of $1,500.00 for the violation. Respondent requested a “formal settlement conference.”

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on January 3, 2022. The Registrar presented the testimony of Investigator Christopher Fultz and submitted twelve exhibits. Respondent failed to appear, and consequently, did not present any controverting evidence on his behalf.

Hearing Evidence

Investigator Christopher Fultz’s testimony

Investigator Fultz testified that he was assigned to investigate this Unlicensed Complaint by the Registrar.

Investigator Fultz authored an Investigative Report that documented the following in pertinent part:

On 02/19/2021, David Fowler of David’s Kitchen Design entered into a contract with Phyllis Zanichkowsky to build and install her kitchen cabinets in her home located at 7538 E. Desert Vista Rd., Scottsdale, AZ 85255. David is an unlicensed to install cabinets.

. . . .

On 06/03/2021 I was assigned this case to review. Upon reviewing the case, Phyllis Zanichkowsky hired David Fowler of David’s Kitchen Design to build her kitchen cabinets. She was told that David would have the cabinets installed by a licensed contractor. This did not happen and David attempted to install the cabinets himself. David is not licensed to install cabinets. The installation was very poorly done and there are numerous issues in the Kitchen.

. . . .

On 07/19/2021 at about 1100 hours, I conducted a jobsite inspection at the home of Phyllis and confirmed the conditions she described in her complaint. I also provided her a photo lineup and she positively identified David.

Investigator Fultz testified regarding the findings from the jobsite inspection, and specifically referenced photograph numbers 4, 16, 23, 25, and 31. Investigator Fultz further testified that Respondent’s contract with Homeowner indicates that the cabinet installation would be performed by a licensed contractor as it states: “Installation of Cabinets by licensed/bonded/installer” for a price of $1,440.00. Respondent is not a licensed contractor in the State of Arizona.

Investigator Fultz testified that he issued the Cease & Desist Order to Respondent for contracting without a license, and that a $1,500.00 civil penalty was assessed as authorized by statute, based upon the fact that it was Respondent’s first offense, yet the installation was “grossly negligent.” Investigator Fultz explained that Respondent “seemed genuinely concerned and remorseful” and consequently, he assessed a lower civil penalty “so [Respondent] could get licensed.”

Respondent did not appear for hearing, and therefore, did not present any controverting evidence. However, in the August 30, 2021 request for a “formal settlement conference,” Respondent admitted to not being licensed and to performing the cabinet installation, and therefore, admitted to contracting without a license. The August 30, 2021 request for a “formal settlement conference” states in pertinent part:

Also see on the contract stated that the installation is not included. I had quoted her a price of $1,440.00 by a licensed installer, later when they were delivered my installer was sick and could not install them. I could not get anyone else feeling bad for here and trying to get the job done, I took on the install. As I began the install, she added on wine racks, a pony wall and a number of other things of which I was glad to do and was going to charge her 2,000 for the total install. I am aware this is over the handyman limit of 1,000.00 but again I could [not] find someone to do the install.

. . . .

I would like to pursue my contractor's license.

. . . .

I realize that getting my contractors license is important to the next step in my success.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Registrar bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Arizona contracting law prohibits a person from acting as a contractor without a license. The Registrar can order a person who performs contracting without a license and who is not exempt from licensure to cease and desist such activity and may impose a civil penalty of between $200.00 and $2,500.00 for each violation, but not more than $2,500.00 per day.

A.R.S. § 32-1151 provides as follows:

It is unlawful for any person, firm, partnership, corporation, association or other organization, or a combination of any of them, to engage in the business of, submit a bid or respond to a request for qualification or a request for proposals for construction services as, act or offer to act in the capacity of or purport to have the capacity of a contractor without having a contractor's license in good standing in the name of the person, firm, partnership, corporation, association or other organization as provided in this chapter, unless the person, firm, partnership, corporation, association or other organization is exempt as provided in this chapter. Evidence of securing a permit from a governmental agency or the employment of a person on a construction project shall be accepted in any court as prima facie evidence of existence of a contract.

A.R.S. § 32-1166.01(A)(4) authorizes the Registrar to assess “a civil penalty of at least $200 for each violation but not more than $2,500 for multiple violations committed on the same day.” With respect to the appropriate amount of civil penalties for violations of A.R.S. § 32-1151, pursuant to A.R.S. § 32-1166.01(G), the Registrar “may adopt rules relating to the civil penalty that give due consideration to the gravity of the violation and any history of previous violations.” Pursuant to this directive, the Registrar adopted A.A.C. R4-9-131.

The credible, substantial, probative, and uncontroverted evidence established that Respondent violated A.R.S. § 32-1151. As to the aggravating factors identified in A.A.C. R4-9-131, the egregiously poor cabinet installation performed by Respondent is considered an aggravating factor in establishing the appropriate penalty. Thus, the assessed civil penalty of $1,500.00 is found to be warranted.

RECOMMENDED ORDER

Based on the foregoing,

it is recommended that the Registrar affirm the finding that Respondent David Fowler, doing business as David’s Kitchen Design, LLC, violated A.R.S. § 32-1151.

IT IS FURTHER RECOMMENDED that the Registrar affirm its decision to assess against Respondent David Fowler, doing business as David’s Kitchen Design, LLC, a civil penalty in the amount of $1,500.00 for contracting without a license.

it is FURTHER recommended that the $1,500.00 civil penalty be paid by Respondent David Fowler, doing business as David’s Kitchen Design, LLC, in certified funds to the Registrar on or before the effective date of the Final Order in this matter.

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 (40) days after the date of that certification.

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-137160-45720000Done this day, January 11, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000