ALJDEC decisions subject to certification as final

2021A-02790-CHC-ROC · Registrar of Contractors · 2022-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jimmy Dee Livengood,

COMPLAINANT,

Kitchen AZ, LLC

License No. ROC 331715,

RESPONDENT.

No. 2021A-02790-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 18, 2022

APPEARANCES: Complainant Jimmy Dee Livengood appeared on behalf of himself. No one appeared on behalf of Respondent Kitchen AZ, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On September 20, 2021, the Arizona Registrar of Contractors (ROC) issued a Notice of Hearing setting the matter for hearing on October 25, 2021.

2. A hearing was held on January 18, 2022.

3. On or about January 30, 2021, Complainant Jimmy Dee Livengood and Respondent Kitchen AZ, LLC (Kitchen AZ) entered into a residential remodeling contract for the amount of $4,253. Mr. Livengood paid Kitchen AZ a total of $4,765 for the project. On or about January 30, 2021, Kitchen AZ started work. On or about April 15, 2021, Kitchen AZ stopped work.

4. On or about June 20, 2021, Mr. Livengood filed a complaint with the ROC alleging abandonment and poor work on the part of Kitchen AZ.

5. On or about August 6, 2021, ROC Investigator John Smith conducted a job-site inspection.

6. On or about August 6, 2021, Investigator Smith issued a Directive to Kitchen AZ. Through the Directive, the ROC directed Kitchen AZ to correct the following items by appropriate means no later than 5:00 p.m. on August 23, 2021:

Complaint Item 3: “Most of the soft close features on the doors and drawers do not function correctly.” Investigator’s Observations: Verified. Several cabinet doors did not fully close without adding additional pressure. One hinge of a cabinet door above the refrigerator was missing the soft close mechanism.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

Complaint Item 5: “One of the drawers does not have the soft close feature installed at all.” Investigator’s Observations: Verified. The contract states “Full extension Soft Close under Mount Drawer Glides” The pull out drawer / trash bin holder does not have soft close hardware.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner. Governing Rule: A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...

Warning Letters In additional to the allegations in the complaint, the following Warning Letters were issued:

Warning Letter: Elements of a Contract.

Investigator’s Observations: The respondent’s contract, as submitted by the complainant, is missing the following information:

• The date the parties entered into the contract

• An estimated date of completion

• The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

• The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

• Information about the customer’s right to file a complaint with the registrar

• Contact information for the registrar

• A signature of the property owner

• A signature of the contractor Investigator’s Observations: The respondent’s contract, as submitted by the respondent on 6/30/2021, is missing the following information:

• An estimated date of completion

The contract states “The estimated date of completion is 21 days from cabinet delivery...” The contract does not indicate when the cabinets may be delivered. Governing Rule: A.R.S. § 32-1154(A)(12), Namely A.R.S. § 32-1158(A) Minimum Elements of a Contract.

Any contract in an amount of more than one thousand dollars entered into between a contractor and the homeowner of a property to be improved shall contain in writing at least the following information:

1: The name of the contractor and the contractor's business address and license number.

2: The name and mailing address of the owner and the jobsite address or legal description.

3: The date the parties entered into the contract.

4: The estimated date of completion of all work to be performed under the contract.

5: A description of the work to be performed under the contract.

6: The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

7: The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

8: The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9a: That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A.

9b: The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A.

9c: The information in this paragraph must be prominently displayed in the contract in at least ten point bold type...

9d: ...and the contract shall be signed by the property owner and the contractor or the contractor's designated representative.

REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with the provisions of A.R.S. § 32-1158.

7. Kitchen AZ failed to correct the items listed in the Directive by August 23, 2021.

8. On or about August 26, 2021, the ROC issued a Citation against Kitchen

AZ’s license. Through the Citation, the Registrar alleged that Kitchen AZ may have violated Ariz. Rev. Stat. sections 32- 1154(A)(3), (specifically, Ariz. Admin. Code section R4-9-108(a); Ariz. Rev. Stat. section 32-1154(A)(12); Ariz. Rev. Stat. section 32-1158; Ariz. Rev. Stat. section 32-1154(A)(22).

8. The Citation shows that if the Administrative Law Judge finds that the

alleged charges are valid, the ROC may suspend or revoke Kitchen AZ’s license.

9. Kitchen AZ filed a timely answer to the Citation.

10. The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

11. A hearing was held on January 18, 2022.

12. At hearing, Investigator Smith testified regarding his investigation of the

Complaint, including the issuance of the Directive. Mr. Livengood testified on behalf of himself.

13. Mr. Livengood explained at hearing that Kitchen AZ performed poor work when it remodeled his home.

14. No one appeared on behalf of Kitchen AZ at the hearing on January 18, 2021. No one filed a request to appear telephonically on behalf of Main. Although the hearing did not start until approximately 1:15 p.m., no one appeared on behalf of Kitchen AZ through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Kitchen AZ did not present any evidence to defend its license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

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, 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)

3. The Administrative Law Judge may consider the ROC’s administrative

record. See A.A.C. § R4-9-118.

4. The preponderance of the evidence shows that Respondent’s work failed

to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).

5. The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(12), namely Ariz. Rev. Stat. section 32-1158(A).

6. The preponderance of the evidence shows that Respondent failed to correct the Directive items without valid justification, which is a violation of Ariz. Rev. Stat. section 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 Kitchen AZ, LLC License No. ROC 331715 for three days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, February 7, 2022.

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.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000