ALJDEC decisions subject to certification as final

2021A-06008-CHC-ROC · Registrar of Contractors · 2022-05-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Amanda Marie Wilfert,

COMPLAINANT

Coy Shane Knuth

DBA: We Top It,

License No. ROC 137268,

RESPONDENT

No. 2021A-06008-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 31, 2022 and May 4, 2022.

APPEARANCES: Complainant Amanda Marie Wilfert appeared via Google Meet. Respondent Coy Shane Knuth appeared via Google Meet on March 31, 2022, but failed to appear at the May 4, 2022 hearing. Registrar of Contractors Investigator Mark Nipp appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Coy Shane Knuth (Respondent) is the holder of License No. 137268 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 24, 2021 Amanda Marie Wilfert (Complainant) agreed to have Respondent install cabinets and countertops. Complainant paid $20,140.00.

On or about November 18, 2021, the Registrar received a Complaint containing four items against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Mark Nipp. The jobsite inspection was performed on December 9, 2021.

Investigator Nipp then issued a written directive on or about December 10, 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 January 7, 2021.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item # 1: “Kitchen countertop not square with range and along whole range wall”

Investigator’s Observation: Verified – Countertop at Range Not Square

The complainant pointed out several areas she was concerned with the countertops along the entire wall (oven side). The primary complaint is that the countertop is not square at the opening for the range. I first measured the range itself (diagonally from corner to corner) to determine if it was square. The range measured precisely 54 1/16” corner to corner indicating it was square. The range opening measurement was the same front and back. I measured each end of the rear trim piece behind the range (2 13/16” and 2 3/8”) and noted there was a 7/16” difference in the depth of the trim piece. I noted that the range was flush with the trim piece which is not square. The respondent should square the opening to a professional and workmanlike manner.

The second issue was the countertop overhang which had an inconsistent measurement from the cabinet face frame to the edge of the countertop. I took eight measurements along the countertop and noted there was a 1⁄4” difference along multiple points. This may be the result of a projection of lack of squareness from the wall or cabinets There was Insufficient Evidence to determine if this is the responsibility of the respondent.

The respondent should square the opening to a professional and workmanlike manner.

Reference Picture(s) 2-19

Governing Rule: 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.

(All errors contained in the original)

On January 19, 2022, Investigator Nipp performed a Compliance Jobsite Inspection. Investigator Nipp noted the following:

Compliance Jobsite General Notes:

The complainant was present at the CJSI; however, the respondent did not attend.

Compliance Findings:

Compliance Item # 1: “Kitchen countertop not square with range and along whole range wall”

. . .

At the CJSI, I inspected the countertop and measured it for square. The measurements were unchanged from the JSI and the countertop was still not square. I noted that the countertops looked the same and no apparent corrections had been made. The complainant told me that she had not heard from the respondent and that no effort had been made to correct the complaint item in the Written Directive.

Reference Picture(s) 2-3

Governing Rule: 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)(22): Failure to take appropriate corrective action to comply with this chapter or with the rules adopted pursuant to this chapter...

(All errors contained in the original).

On January 25, 2022, 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 February 7, 2022, Respondent e-mailed an Answer to the Registrar.

On or about February 25, 2022, a Notice of Hearing was issued setting a hearing on March 31, 2022, at the Office of Administrative Hearings, an independent state agency.

During the parties opening statements at the hearing, Complainant explained that the countertops were installed the day prior but there were some backsplash tiles which were broken during the repairs. Respondent offered to reimburse Complainant for the damage, and the matter was continued to May 4, 2022, so Investigator Nipp could perform another compliance inspection and to ensure Respondent paid the reimbursement amount.

At the hearing on May 4, 2022, Respondent failed to appear and the hearing commenced after a fifteen minute grace period.

Investigator Nipp testified as to the Registrar’s involvement and the above timeline.

Investigator Nipp testified that he performed a Compliance Jobsite Inspection on April 28, 2022, and found that while the countertop was now completed, the backsplash tiles were damaged according to Complainant. Investigator Nipp testified further that based upon the repairs to be made, it would have been impossible to not damage the backsplash.

Investigator Nipp testified further that Complainant informed him that she had another company correct the backsplash, so he could not verify the damage on his own.

Complainant testified that while the countertops were completely repaired, she had not received reimbursement from Respondent for the damage to the backsplash as promised at the March 31, 2022 hearing.

Complainant testified that she paid a total of $482.87, which included materials and labor, for the backsplash repair.

Administrative notice is taken of Respondent’s prior License record on May 17, 2022. Such prior License record reflects that Respondent’s License No. 137268 was first issued on July 29, 1998, and reflects that there was one open complaint, namely the present complaint.

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. At the hearing on March 31, 2022, Respondent did not deny that there were issues with the cabinets, and said he repaired the same the day before. 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 Respondent failed to complete the corrective work following the Directive being issued. The Directive required compliance by January 7, 2022, and the evidence established that the countertops were not repaired until March 30, 2022. 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).

A.R.S. § 32-1156.01 provides that “[a]fter a hearing pursuant to this article, an administrative law judge may recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.” Given the fact at the March 31, 2022 hearing Respondent agreed to pay for the cost to repair the backsplash and failed to do so, the Administrative Law Judge concludes that Respondent shall reimburse the amount of $482.87 to Complainant. Per Complainant’s testimony this was the amount spent on the repair to the backsplash.

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. 137268 for a period of one day.

It is further recommended that the Registrar require Respondent to pay to Complainant the sum of $482.87 as restitution pursuant to A.R.S. § 32-1156.01.

It is further recommended that if Respondent fails to pay the entire amount of the restitution 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)(5), unless Respondent tenders payment of any outstanding restitution.

It is further recommended that the Registrar require Respondent to pay the sum of $150.00 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.

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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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-137160-45720000Done this day, May 17, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000By Miranda Alvarez

Legal Secretary