ALJDEC decisions subject to certification as final
2022A-00200-CHC-ROC · Registrar of Contractors · 2022-08-31
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Sheyanna Sinner
COMPLAINANT,
v.
Cabinet & Stone, LLC
License No. ROC 295797,
RESPONDENT.
No. 2022A-00200-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 11, 2022
APPEARANCES: Complainant Sheyanna Sinner appeared on behalf of herself. Chase Sinner appeared on behalf of himself. Anthony M. Thomas appeared on behalf of Respondent Cabinet & Stone, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent Cabinet & Stone, LLC (Cabinet & Stone) holds license number 295797 issued by the Arizona Registrar of Contractors (ROC).
2. On or about December 14, 2020, Cabinet & Stone agreed to remodel the home of Chase and Sheyanna Sinner, located at 9027 N. 82nd Street, Scottsdale, AZ 85258.
3. On or about March 22, 2201, Cabinet & Stone started work.
4. On or about May 19, 2021, Cabinet & Stone stopped work.
5. On or about July 7, 2022, Ms. Sinner filed a complaint with the ROC alleging poor workmanship and abandonment on the part of Cabinet & Stone.
6. On March 2, 2022 and April 5, 2022, ROC Investigator Jason Simpson conducted job-site inspections.
7. On May 25, 2022, the ROC issued a Directive to Cabinet & Stone.
The May 25, 2022 Directive provided, in relevant in part, 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 May 16, 2022.
Complaint Item 2: “butler’s pantry cabinet base that is too short for the cabinets and has been confirmed by the manufa: butlers – should have 6” filler scribed to floor on pantry per contract; butlers – should have 6” filler scribed to floor on back wall cabinets per contract;”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent.
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 8: “butler’s pantry - ice maker door panel that is on the contract and ordered and paid that was never installed.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent
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 13: “master bathroom trim installed incorrectly and cabinet piece fell off; ”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent.
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 16: “Laundry - Cabinet to the right above sink – shim needs fixed/trim piece needs to be fixed; Laundry - Order and replace the cabinet door at right above sink (item 47 from design/contract); Laundry - Adjust or replace trash can panel; rubbing at sides and top; Laundry - Adjust or replace desk drawer; rubbing at top and causing cabinet damage; Laundry - Nail hole touch ups under sink; Laundry - Correct shim showing at the bottom of desk drawer; Laundry - Correct scratches and dents all around.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent.
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 17: “Butlers - Order and install ice maker cabinet panel; Paid and never recieved ; Butlers - Tall pantry w/ drawers to have 6" filler as flush toe kick, scribed to floor and flush with doors. Order and install flush toe kick Flush toe kick on large pantry (item 41-1 on design/contract); Butlers - Left pantry door is sticking out at top compared to trim; Butlers - Correct scratches and dents on trim and/or replaced; Butlers back wall – 44, 45, 46 notes 1 to have 6" filler as flush toe kick, scribed to floor and flush with doors. Order and install 6” flush toe kick on back butlers wall”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should adjust, repair or replace operating parts as required in the first year. That are out of warp tolerance of 1/8 in 30 inches is considered acceptable. Toe kick replaced, repairs or corrected if out of tolerance.
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 18: “Master Bedroom - Bottom right drawers uneven and spaced odd - do not close correctly - warped;
Master bedroom - cabinet longer on one side compared to the other Master - Order and replace toe kick; cut and installed uneven Master - Modify right cabinet trim; currently installed lower than cabinet Master - Re-install trim piece at right of vanity; glued only and fell off.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should adjust, repair or replace operating parts as required in the first year. Warp tolerance of 1/8 in 30 inches is considered acceptable.
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 19: “Kitchen - Adjust all cabinets; in particular doors at front of island - forgot front of island at install - some cabinets look warped; Kitchen - Replace 3 warped cabinet doors at front of island – warped.”
Investigator’s Observation: This allegation is verified as the responsibility of the respondent. Respondent should adjust, repair or replace operating parts as required in the first year. That are out of warp tolerance of 1/8 in 30 inches is considered acceptable.
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 23: “kitchen - Install scribe to fill light gaps at island Kitchen - Adjust kitchen trash can; wobbles when opened Kitchen - Adjust drawers to right of trash can. ” Investigator’s Observation: This allegation is verified as the responsibility of the respondent.
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.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint Item 1: “Walked off job, poor workmanship, incorrect install per contract, 30 day notice to cure sent on September 16, 2021.”
Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.
Governing Rule: N/A
Complaint Item 3: “kitchen sink - spec provided but cabinets did not fit correctly. Installers cut cabinets to get sink installed and promised to build a cabinet frame around sink but to date refusing to do work as promised.”
Investigator’s Observation: This allegation is NOT verified. Relating to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.
Governing Rule: N/A Complaint Item 4: “Extend cabinet base by water bottle filler and install toe kick.”
Investigator’s Observation: This allegation is NOT verified. Relating to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.
Governing Rule: N/A
Complaint Item 5: “Conceal kitchen sink cutout at trash can (unapproved field modification)”
Investigator’s Observation: This allegation is NOT verified. Relating to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.
Governing Rule: N/A
Complaint Item 6: “coffee maker that does not fit flush at the top or bottom (cabinetry ordered too small) ”
Investigator’s Observation: This allegation is NOT verified. Conditions described are present, however; they cannot be verified as the responsibility of this respondent.
Governing Rule: N/A
Complaint Item 7: “Refrigerator/Freezer wall - Cabinetry installed will not allow for refrigerator to open correctly. Cabinet & Stone sent new drawings of wall and we confirmed design but now refusing. Temporary fix so we could open refrigerator and now we are left with a big mess.” Investigator’s Observation: This allegation is NOT verified. Relating to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108. Has been installed per plan/specification.
Governing Rule: N/A
Complaint Item 9: “laundry - dog doors that were not ordered and installed per the agreement and are now falling apart Laundry - Order and replace dog crate doors as agreed via in person and confirmed order via email; Laundry - Order and install magnets on top and bottom of dog crate doors as agreed; Laundry - Install 1 1/2” scribe for landing of dog doors, attached to existing panel as agreed”
Investigator’s Observation: This allegation is NOT verified. Relating to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.
Governing Rule: N/A
Complaint Item 10: “butlers double trashcan – only installed a single but no credit given for the double that was paid in full.” Investigator’s Observation: This allegation is NOT verified. Although this complaint item alleges a financial dispute with the respondent, it alleges nothing indicating grounds for discipline under A.R.S. § 32-1154(A).
Governing Rule: N/A
Complaint Item 11: “kitchen island trim cut too short and showing wood.”
Investigator’s Observation: This allegation is NOT verified. Relating to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.
Governing Rule: N/A
Complaint Item 12: “dog crates - shims showing.” Investigator’s Observation: This allegation is NOT verified. Conditions described are present, however; they cannot be verified as the responsibility of this respondent.
Governing Rule: N/A
Complaint Item 14: “Oven wall warranty panel - needs to be replaced.”
Investigator’s Observation: This allegation is NOT verified. Relating to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.
Governing Rule: N/A
Complaint Item 15: “Cabinet&Stone is causing hold up of appraisal and final permit with city due to incomplete work.” Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.
Governing Rule: N/A
Complaint Item 20: “kitchen - Build box around sink inside of trash can cabinet – cabinet size was ordered wrong per the sink specs provided; Kitchen - Order and install full-length panel at left of oven as agreed Kitchen - Order materials and modify coffee maker base to be lower as agreed Kitchen - Refrigerator wall measurement error – Option 2 provided in July (only option allowing opening of fridge) Kitchen Replace and install 24” refrigerator column panel.”
Investigator’s Observation: This allegation is NOT verified. Relating to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.
Governing Rule: N/A
Complaint Item 21: “kitchen - Page 19 of Contract – Hood was agreed and signed off per contract, but hood not designed, ordered or installed. “Hood to be constructed with panels and blower/insert to be provided and installed. Hood is still on backorder and will arrive February 2022.” Kitchen - Order materials and install hood design as agreed and signed per agreement Cabinet & Stone is aware. Hood panels have to be installed prior to install of hood insert. Holding up appraisal and final permit with city due to incomplete work Investigator’s Observation: This allegation is NOT verified. Cannot verify this as responsibility of the Respondent. Governing Rule: N/A
Complaint Item 22: “kitchen - Build box around sink inside of trash can cabinet – cabinet size was ordered wrong per the sink specs provided.”
Investigator’s Observation: This allegation is NOT verified. Relating to this complaint item: There is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.
Governing Rule: N/A
Complaint Item 24: “kitchen - Replace damaged drawer front under oven is damaged - notified at original walk through of damage and agreed to replace.”
Investigator’s Observation: This allegation is NOT verified. Conditions described are present, however; they cannot be verified as the responsibility of this respondent.
Governing Rule: N/A
Complaint Item 25: “Butlers - Trim out and secure beverage fridge - Does not fit correctly per cabinet design - specs provided; butlers - First drawer does not close all the way - warped?
Investigator’s Observation: This allegation is NOT verified. Conditions described are present, however; they cannot be verified as the responsibility of this respondent.
Governing Rule: N/A
Complaint Item 26: “Butlers - Correct cabinet base and toe kick for small Butlers wall design (item 46 in design/contract); Butlers - Upper cabinets need to be adjusted and/or replacements ordered under warranty; Butlers - Sink base cabinet needs to be adjusted and/or replacements ordered under warranty; Butlers - Pantry door is warped or needs to be adjusted and/or replaced under warranty.”
Investigator’s Observation: This allegation is NOT verified as the responsibility of the Respondent. This may be the responsibility of the product manufacturer. Note: The Registrar makes no determination regarding the product manufacturer's responsibility or liability.
Governing Rule: N/A
Complaint Item 27: “kitchen - Replace damaged drawer front under oven is damaged - notified at original walk through of damage and agreed to replace.”
Investigator’s Observation: This allegation is NOT verified. Conditions described are present, however; they cannot be verified as the responsibility of this respondent.
Governing Rule: N/A
Complaint Item 28: “kitchen - Replace damaged drawer front under oven is damaged - notified at original walk through of damage and agreed to replace.” Investigator’s Observation: This allegation is NOT verified. Conditions described are present, however; they cannot be verified as the responsibility of this respondent.
Governing Rule: N/A
Complaint Item 29: “kitchen - Replace damaged drawer front under oven is damaged - notified at original walk through of damage and agreed to replace.”
Investigator’s Observation: This allegation is NOT verified. Conditions described are present, however; they cannot be verified as the responsibility of this respondent.
Governing Rule: N/A
8. Cabinet & Stone failed to complete the Directive items by May 16, 2022.
9. On May 25, 2022, the ROC issued a Citation against the license of Cabinet & Stone for alleged violations of Ariz. Rev. Stat. sections 32-1154(A)(3) and (22); Arizona Administrative Code (A.A.C.) R4-9-108(a).
10. Cabinet & Stone filed a timely answer to the Citation.
11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
12. On June 10, 2022, the ROC issued a Notice of Hearing setting the above-captioned matter for hearing at 8:30 a.m. on July 19, 2022, at the Office of Administrative Hearings in Phoenix, Arizona.
13. A hearing was conducted on August 11, 2022. At hearing, Chase Skinner testified on behalf of himself. Investigator Simpson testified regarding his investigation of the complaint and the issuance of the Directive. Cabinet & Stone presented the testimony of its member, Anthony M. Thomas, and Nico Thomas.
14. Investigator Simpson requested that complaint Item #23 be removed from the Directive. Investigator Simpson explained that he received evidence that there was a different contractor from Cabinet & Stone that was responsible for the counter top. Investigator Simpson also explained that after the Directive was issued, he had discussions with Cabinet & Stone regarding complaint item 23.
15. I find Investigator Simpson’s testimony to be credible.
16. Mr. Sinner asserted that Cabinet & Stone performed poor work and failed to complete the contract. Mr. Sinner disagreed with Investigator Simpson that Complaint Item #23 should not have been included in the Directive. However, Mr. Sinner did not provide evidence to establish that Cabinet & Stone was the contractor that was responsible for the countertop.
17. Mr. Sinner contended that complaint Item 21 should have been substantiated by Investigator Simpson. Mr. Sinner contended that the hood was included in his contract with Cabinet & Stone. Mr. Sinner contended that he should have been allowed to present evidence to show why the items that Investigator Simpson found to be unsubstantiated should have been substantiated as poor work. However, those items did not serve as the basis of the Registrar’s Citation and Respondent was not notified that he was required to correct the unsubstantiated items.
18. Nico Thomas explained that Cabinet & Stone did not comply with the Directive because Cabinet & Stone was waiting to hear back from the ROC regarding whether Cabinet & Stone would be required to repair complaint item #23. Nico Thomas stated that Cabinet & Stone did know that it could have repaired the other items on the Directive. Cabinet & Stone had expressed to the ROC that a different contractor was responsible for the countertop.
19. Administrative notice is taken of Respondent’s prior License record on August 31, 2022. Such prior License record reflects that Respondent’s license number 295797 was first issued on December 16, 2014, and is active. Such prior License record also reflects that there were no other open complaints against Respondent’s license. Such prior License record reflects that one complaint was closed against Cabinet & Stone that was resolved or settled by Cabinet & Stone. The lack of disciplinary history is considered a mitigating factor in the imposition of discipline.
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 Registrar’s administrative
record. See A.A.C. § R4-9-118.
4. Construction is not a perfect art and, generally, contractors must be afforded an opportunity to correct their workmanship before their licenses may be suspended or revoked.
5. Mr. Sinner contended at hearing that he should have been allowed to present evidence to show why the items that Investigator Simpson unsubstantiated should have been substantiated as poor work and included in the Registrar’s Directive. The Administrative Law Judge concludes that the tribunal does not have jurisdiction to hear the unsubstantiated claims that did not serve as the basis of the Citation. Furthermore, Respondent was not notified that he would be required to correct such items and that a failure to do so would result in discipline of its license.
6. The preponderance of the evidence shows that Respondent’s work failed
to meet minimum workmanship standards regarding complaint items 2, 8, 13, 16, 17-19, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).
7. The preponderance of the evidence does not show that Respondent’s work failed to meet minimum workmanship standards regarding complaint item 23.
8. The preponderance of the evidence shows that Respondent failed to correct complaint items 2, 8, 13, 16, 17-19, without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
9. The Administrative Law Judge concludes that Respondent had valid justification for failing to complete complaint item 23 based on the credible testimony of Investigator Simpson that Respondent was not the contractor responsible for the countertop and that complaint item 23 should not have been included in the Directive.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend license number 295797 held by Cabinet & Stone for one day.
It is further recommended that the Registrar require Respondent to pay the sum of $250.00 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, August 31, 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
By Miranda Alvarez
Legal Secretary