ALJDEC decisions subject to certification as final

2021A-04645-CHC-ROC · Registrar of Contractors · 2022-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dan McKinley,

COMPLAINANT

Russell Arnold Kelch

DBA: A K Builders,

License No. ROC 116941,

RESPONDENT

No. 2021A-04645-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 2, 2022

APPEARANCES: Complainant Dan McKinley appeared on his own behalf with his wife, Gina McKinley. Russell Kelch appeared on behalf of Respondent Russell Arnold Kelch, doing business as A K Builders. Carolyn Hutchison appeared as a witness for Respondent. Mitchell Kelch was present. Arizona Registrar of Contractors Investigator Steve Philpott appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Russell Arnold Kelch, doing business as A K Builders (“Respondent”), is the holder of License No. 116941 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about April 17, 2021, Dan McKinley (“Complainant”) and his wife, Gina McKinley, contracted with Respondent for a kitchen remodel. The contract price was $42,875.00. Complainant paid Respondent $42,375.00. Respondent also performed bathroom cabinet installation.

On or about September 18, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work and abandonment with respect to the project.

The Registrar assigned the Complaint to Investigator Steve Philpott. After an October 6, 2021 jobsite inspection, Investigator Philpott issued a Written Directive dated October 27, 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 November 18, 2021.

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

Compliance Item: - 2. [Cabinet Installation]

The cabinets are not level or mounted flush to the wall. One of the cabinets is not mounted in the correct location. Several of the doors are chipped.

Investigator’s Observation: This complaint item is verified. The upper

cabinets on the right of the sink were demonstrated to be out of level and out of Plumb by approximately 1⁄4”. Two chips were observed in the doors. The left upper cabinet do not have an even reveal with the window compared to the right upper cabinet, as indicated on the cabinet plans. Respondent shall correct by appropriate means.

Compliance Item: - 3. [Cabinet Installation]

The crown moulding is damaged and has improper cuts. Even though the pieces were pre-painted, the poor installation was covered up with filler and repainted with paint that does not match.

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means.

Compliance Item: - 5. [Cabinet Installation]

The master bath vanity cabinets were not installed according to the drawings. The filler boards should have been installed on the outside of the cabinets, not between them. This resulted in the countertop slab being cut incorrectly, and the mirrors not fitting.

Investigator’s Observation: This complaint item is verified. The drawing show the fillers to be installed on the outside edges. Respondent installed the fillers between the cabinets. Respondent shall correct by appropriate means.

Compliance Item: - 6. [Cabinet Installation]

All cabinets in the bathrooms have large holes for the plumbing with no finish cover pieces. The cabinet in the guest bath does not have access to the sewer cleanout.

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means.

Compliance Item: - 8. [Job Abandoned]

Russell was last onsite August 14th, when the kitchen sink panel was cut. He has not responded to repeated texts or emails regarding addressing the damages or completing the job. He is now instructing his trades to contact us directly for payments he should be making.to them.

Investigator’s Observation: This complaint item is verified. The project

remains unfinished. Respondent shall complete project per original contract

agreement, properly executed change orders, local building codes, and

manufactures installation instructions.

Compliance Item: - 11. [Job Abandoned]

The Pantry door was never installed, and the shelving is left unfinished.

Investigator’s Observation: This complaint item is verified. Respondent shall correct by appropriate means.

Compliance Item: - 18. [Damage to the site]

The drywall ceiling in the kitchen was not finished properly making it appear as if we have several leak repairs. This will be an issue if the home is ever sold.

Investigator’s Observation: This complaint item is verified. The finished

texture has not been completed in a professional manner. Respondent shall

correct by appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: - 1. [Cabinet Installation]

The cabinets were not installed properly. The bid from Custom Kitchen Concepts included professional installation costing $2,500. This bid was incorporated into the cost of the job from AK Builders to us. Russell (AK Builders owner) decided to install the cabinets himself leading to the following problems.

Investigator’s Observation: This complaint item is provided as a

general statement. See the other complaint items for specific allegations.

Compliance Item: - 4. [Cabinet Installation]

The cabinet piece that goes around the Farmhouse Sink was not cut using the template or removing the sink. This resulted in an unprofessional cut leaving a 1/2" gap around parts of the sink. The sink was also damaged during the cutting leaving black marks down both sides. We were able to clean up most of the damage with several hours of scrubbing with pumice stones.

Investigator’s Observation: This complaint item is unverified, as evidence presented does not support a violation of ARS 32-1154(a). The sink was originally “set” by the Respondent or Respondents Plumber. The Complainants counter top contractor raised and repositioned the sink leaving a gap. For that reason, the Registrar is prohibited from issuing a citation for the Respondent’s alleged poor workmanship or the alleged departure from applicable building codes. See A.R.S. § 32-1155(D)(2). No action required by the Respondent

Compliance Item: - 7. [Cabinet Installation]

The new island in the kitchen is not secured to the floor. This is creating a

dangerous situation of possibly tipping over and falling on someone. Our granddaughter could easily grab the countertop and pull it over on her. Securing it now will probably need to involve further damage to the cabinets.

Investigator’s Observation: No deficiency demonstrated or observed at time of inspection. This complaint item is unverified, as evidence presented

does not support a violation of ARS 32-1154(a). No action required by the Respondent

Compliance Item: - 9. [Job Abandoned]

The knobs for all the cabinets were not installed. In order to use, we had to bring in a handyman to install the knobs at a cost of $250

Investigator’s Observation: Corrected by others prior to jobsite inspection

Compliance Item: - 10. [Job Abandoned]

Both bathroom walls were left unfinished after demolition and installation of the cabinets. We finished and painted the walls ourselves so we could install the mirrors.

Investigator’s Observation: Corrected by others prior to jobsite inspection

Compliance Item: - 12. [Job Abandoned]

The RO system, faucet, and garbage disposal were not installed. We had to bring Russell's plumber back to complete these items. The work was completed, however the plumber required us to pay him directly, even though the work should have been included in AK Builders bid. This cost to us was $462.66.

Investigator’s Observation: Corrected by others prior to jobsite inspection

Compliance Item: - 13. [Job Abandoned]

Debris from the site was never removed. This included a pile of dirt/cement

(over 6,000 lbs), several old appliances, plumbing pieces and misc debris. We had to have the debris removed ourselves at a cost of $1,240.

Investigator’s Observation: Corrected by others prior to jobsite inspection

Compliance Item: - 14. [Job Abandoned]

The tile backsplash in the kitchen was never completed. All outlets are left

protruding from the wall with exposed wiring.

Investigator’s Observation: This complaint item is unverified, as evidence

presented does not support a violation of ARS 32-1154(a). No action required by the Respondent

Compliance Item: - 15. [Job Abandoned]

Baseboards and steps/risers were supposed to be part of the job. These were left undone and we had to have someone else install them at a cost of $1,379.

Investigator’s Observation: Corrected by others prior to jobsite inspection

Compliance Item: - 16. [Job Abandoned]

Gutters were not installed. We brought in a handyman to install the gutters at a cost of $230. This included other misc unfinished work such as caulking around the patio door, installing kickboards and adding a trim piece in the bathroom to cover a damaged cabinet.

Investigator’s Observation: Corrected by others prior to jobsite inspection

Compliance Item: - 17. [Damage to the site]

When the patio door was moved, the seal was broken. We had to have the glass replaced at a cost of $615.81

Investigator’s Observation: Corrected by others prior to jobsite inspection.

Compliance Item: - 19. [Damage to the site]

The window ledge in the family room has the drywall crushed, apparently from moving the furniture around. This has not been repaired.

Investigator’s Observation: This complaint item is unverified, as evidence presented does not support a violation of ARS 32-1154(a). Other contractors, hired by the Complainant have been on the site and I was not

present to witness who damaged the window sill. No action required by the

Respondent

All errors in original.

Also on October 27, 2021, Investigator Philpott issued a Warning Letter to Respondent because it appeared that Respondent was not in compliance with Registrar requirements for minimum elements of a contract.

After the expiration of the deadline specified in the Written Directive, Investigator Philpott ascertained that Respondent had not complied with the Written Directive. Thereafter, Investigator Philpott forwarded the Complaint to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

Investigator Philpott testified consistently with the findings contained in his jobsite inspection notes and the Written Directive. Investigator Philpott testified in detail about the seven items of Complaint that Respondent was ordered to remedy pursuant to the Written Directive. Investigator Philpott referenced photographs taken at the jobsite inspection, specifically, photograph numbers 2, 3, 5, 7, 8, 9, 11, 23-25, and 28 to demonstrate the deficiencies in the work performed by Respondent. Investigator Philpott further testified that he issued the Warning Letter to Respondent based upon his observation that Respondent failed to include in its contract document, the advisement to a property owner of the right to file a written complaint with the Registrar.

Regarding Complainant’s item of Complaint concerning the kitchen island not being secured to the floor, Investigator Philpott testified that he could not verify that item of Complaint at the jobsite inspection, and therefore, Complainant could file another complaint if Complainant has new evidence.

Complainant testified that he agreed with all of Investigator Philpott’s findings with the exception of the finding regarding the kitchen island. Complainant testified regarding the photographs Complainant submitted into evidence that depict the deficiencies with the crown molding, specifically, the unsightly filler, mismatched paint, splits, the cabinet installation, specifically the placement and alignment of the cabinets, and the gouges in the cabinets, as well as the unsecured kitchen island. Complainant submitted video of the lifting of the kitchen island, and the lack of its having been secured. Complainant explained that at the time of the jobsite inspection, the kitchen island had been filled with kitchen contents, and therefore, was too heavy to demonstrate to Investigator Philpott that it was not properly secured. Complainant is concerned with the island tipping over, causing a safety issue.

Russell Kelch testified regarding work that Respondent performed that was not included in the parties’ contract that was required by the city in order to include the outside porch as part of the kitchen. Mr. Kelch testified that the parties decided not to move a window in order to save on costs, but that Respondent did not charge Complainant additional monies for the additional work. Mr. Kelch testified that he did not charge Complainant to “scrape the floors” and that it was not Respondent’s “fault” that the sink was installed too high. Mr. Kelch testified that the kitchen island was glued and nailed down and that he does not know if the “island went through abuse.” Mr. Kelch asserted that he does not remember any “chips” in the cabinets and that the counter top installer could have caused the chips. Mr. Kelch testified that the cabinet doors could be adjusted. Mr. Kelch explained that the bathroom cabinets were not included in the contract because they were not within Complainant’s budget. Mr. Kelch asserted that Respondent did not abandon the project and that he was “planning on coming back,” “but never made it back.”

Carolyn Hutchison, Respondent’s subcontractor, testified that she has not observed the job, however has seen photographs. Ms. Hutchison testified that she “does not see that it was done differently than any other installation.” Regarding the $2,500.00 delineated in the parties’ contract for installation of the cabinets, Ms. Hutchison testified that the “decision was made for [Respondent] to install” and that the monies allocated for installation were paid to Respondent.

Administrative notice is taken of Respondent’s prior License record on February 10, 2022. Such prior License record reflects that Respondent’s License No. 116941 was first issued on September 3, 1996, and is active. Such prior License record also reflects that there is only the instant open complaint, zero disciplined complaints, and zero resolved/settled complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. Complainant bears the burden of proof to establish Respondent’s statutory violations 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.”

The evidence of record established that Respondent contracted and was paid $42,375.00 for Complainant’s project and did not complete the work. Accordingly, Complainant established that Respondent abandoned the contract in violation of A.R.S. § 32-1154(A)(1).

The credible, probative, and substantial evidence of record established that Respondent’s work was not in conformity with the Registrar’s standards. 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 established that Respondent’s contract documents do not include the required advisement to a property owner of the right to file a written complaint with the Registrar. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not complete the corrective work following the Written Directive being issued, and that valid justification for such failure did not exist. 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. 116941 for a period of three (3) 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.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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 forty (40) days from the date of that certification.

Done this day, February 14, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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