ALJDEC decisions subject to certification as final

2022A-00561-CHC-ROC · Registrar of Contractors · 2022-08-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Patrick M. Wilberding

COMPLAINANT,

v.

Lauer's Innovative Construction & Design, LLC

License No. ROC 325182,

RESPONDENT.

No. 2022A-00561-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 19, 2022

APPEARANCES: Patrick Wilberding appeared on behalf of himself. Cami Rae Wilberding appeared on behalf of herself. Matthew Lauer appeared on behalf of Respondent Lauer’s Innovative Construction & Design, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Complainant Patrick M. Wilberding and Respondent Lauer's Innovative Construction & Design, LLC (LICD), entered into a residential remodeling contract wherein LICD would remodel the kitchen in Mr. Wilberding’s home located at 3882 Bluegrass Ct., Lake Havasu City, 86406 (the home).

2. Mr. Wilberding and his wife Cami Rae Wilberding own the home.

3. On April 16, 2021, LICD started work.

4. LICD installed cabinets in the home that were supplied by Cabinet Sellerz.

5. On October 14, 2021, LICD stopped work.

6. On or about January 19, 2022, the Arizona Registrar of Contractors (ROC) received a complaint from Mr. Wilberding alleging poor workmanship on the part of LICD.

7. On February 7, 2022, ROC Investigator Cliff Corlett conducted a job-site inspection.

8. On February 25, 2022, the ROC issued a Directive to LICD. The February 25, 2022 Directive provided, in relevant part, as follows:

Dear Respondent: 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 or before March 31, 2022. NOTE: (The Complainant stated at the onsite meeting that the contractor had agreed to replace the cabinet doors but there would be a yet to be determined lead-time for delivery. Should door delivery take longer than the allotted compliance time the parties would need to reach an agreement and inform the ROC).

RESTRICTIONS

You may not perform or hire other contractors to perform work that is outside the scope of your license.

If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the longer than the allotted compliance time the parties would need to reach an agreement and inform the ROC).

.......................

DIRECTIVE REQUIREMENTS You are directed to remedy the following violations by the appropriate means: Compliance Item: 1 - The cabinets that were installed have many issues. The colors do not match from cabinet to cabinet. Investigator’s Observation: The Workmanship Standards for Licensed Contractors (WSLC) states: CABINETS AND VANITIES It should be noted that it is not unusual for the color of installed cabinets to be slightly different from the samples shown at the time of selection. Color can differ with wood grain variations and stain lots. Excessive variation is not acceptable. Cabinet frames vary in wood grain(s) and the stain color on cabinet frames appears acceptable. Excessive color variation was noted on cabinet end panels. Unacceptable. Cabinet doors have cracked panels and shrinkage exposing unstained wood. Unacceptable. End panels have numerous chips and exposed staples. Unacceptable. RESPONDENT SHOULD PROPERLY CORRECT THE MISMATCHED END PANELS AND CORRECT THE CHIPPED END PANELS AND REPLACE ALL CRACKED AND SHRINKING CABINET DOORS MATCHING THE EXISTING CABINETS AS CLOSELY AS POSSIBLE. Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - The doors are splitting on all the cabinet fronts and there are 30 doors. Investigator’s Observation: The Workmanship Standards for Licensed Contractors (WSLC) states: CABINETS AND VANITIES It should be noted that it is not unusual for the color of installed cabinets to be slightly different from the samples shown at the time of selection. Color can differ with wood grain variations and stain lots. Excessive variation is not acceptable. Cabinet frames vary in wood grain(s) and the stain color on cabinet frames appears acceptable. Excessive color variation was noted on cabinet end panels. Unacceptable. Cabinet doors have cracked panels and shrinkage exposing unstained wood. Unacceptable. End panels have numerous chips and exposed staples. Unacceptable. RESPONDENT SHOULD PROPERLY CORRECT THE MISMATCHED END PANELS AND CORRECT THE CHIPPED END PANELS AND REPLACE ALL CRACKED AND SHRINKING CABINET DOORS MATCHING THE EXISTING CABINETS AS CLOSELY AS POSSIBLE. Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - The island bases are two different colors. We upgraded our budget for them and are very disappointed. Investigator’s Observation: The Workmanship Standards for Licensed Contractors (WSLC) states: CABINETS AND VANITIES

It should be noted that it is not unusual for the color of installed cabinets to be slightly different from the samples shown at the time of selection. Color can differ with wood grain variations and stain lots. Excessive variation is not acceptable. Cabinet frames vary in wood grain(s) and the stain color on cabinet frames appears acceptable. Excessive color variation was noted on cabinet end panels. Unacceptable. Cabinet doors have cracked panels and shrinkage exposing unstained wood. Unacceptable. End panels have numerous chips and exposed staples. Unacceptable. RESPONDENT SHOULD PROPERLY CORRECT THE MISMATCHED END PANELS AND CORRECT THE CHIPPED END PANELS AND REPLACE ALL CRACKED AND SHRINKING CABINET DOORS MATCHING THE EXISTING CABINETS AS CLOSELY AS POSSIBLE. Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

9. LICD planned to correct the Directive items by installing cabinets provided by Cabinet Sellerz.

10. On April 5, 2022, Mr. Lauer and Mr. Wilberding signed a document wherein Mr. Lauer agreed to take all of the cabinet doors to Cabinet Sellerz for a new product. See the Registrar’s Administrative Record, pg. 77. Mr. Lauer agreed to pay for all doors and skin panels that Cabinet Sellerz did not deem to be damaged. Mr. Lauer promised to drive to Las Vegas, Nevada, to deliver the doors, and obtain new doors.

Mr. Lauer promised to install the new doors the day after retrieving them from Las Vegas. See id.

11. On April 18, 2022, Investigator Corlett sent an e-mail to Complainant inquiring about the status of the complaint.

12. On April 28 2022, Investigator Corlett received an e-mail from

Mr. Wilberding that Cabinet Sellerz wanted him to sign a document agreeing to pay $500 to ship the cabinet doors. Mr. Wilberding also complained that Cabinet Sellerz was requiring that he agree in writing that the cabinet purchase would be the “final replacement.” Cabinet Sellerz sent the same documents to Mr. Lauer for his signature. Mr. and Mrs. Wilberding did not sign the documents that were sent to them by Cabinet Sellerz. See the Registrar’s Administrative Record, pg. 68.

13. Mr. and Mrs. Wilberding did not allow LICD to install cabinets that were provided by Cabinet Sellerz in their kitchen.

14. LICD did not comply with the Directive.

15. On May 6, 2022, the ROC issued a Citation to LICD alleging that LICD may have violated Arizona Revised Statutes (A.R.S.) §§ 32-1154(A)(3) and (22); A.A.C. R4-9-108(a).

16. LICD filed a timely answer to the Citation.

17. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

18. A hearing was held on July 19, 2022.

19. At hearing, Investigator Corlett testified regarding his investigation of the complaint and the issuance of the Directive. Mrs. Wilberding testified on behalf of herself.

20. Mrs. Wilberding explained that she would not allow LICD to install cabinets supplied by Cabinet Sellerz in her home. Mrs. Wilberding explained that LICD installed cabinets from Cabinet Sellerz on two different occasions. Ms. Wilderberg stated that the colors of the cabinets did not match. Many of the doors began to split as soon as they were hung. Ms. Wilderberg explained that Mr. Wilderberg received forms through the DocuSign program from Cabinet Sellerz. The forms required that Mr. Wilberding agree that the third set of cabinets would be the “final replacement.” Mrs. Wilberding stated that the agreement sent by Cabinet Sellerz through DocuSign provided that the repair would take from 70-90 days.

21. Mr. Wilberding decided not to sign the documents.

22. Mr. and Mrs. Wilberding asked Mr. Lauer a few times if he could use someone locally or if he could pay Mr. and Mrs. Wilberding to hire someone else to repair the deficient work.

23. Mrs. Wilberding asserted that the issue is not whether LICD can correct the work but Mr. and Mrs. Wilberding do not want to have the cabinets supplied by Cabinet Sellerz.

24. Mr. Lauer explained that he believed that the previously installed cabinets were a defective batch. Mr. Lauer believed that he completed due diligence to resolve the matter. Mr. Lauer drove to the supplier in Las Vegas who represented that it would send the defective cabinets to the manufacturer and have them replaced and shipped back. Mr. Lauer told Cabinet Sellerz that he would cover the cost. Mr. Lauer asserted that LICD was not given the opportunity to correct the problem.

CONCLUSIONS OF LAW

This matter lies within the ROC’s jurisdiction. See A.R.S. § 32-1101 et seq.

The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

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).

4. The Administrative Law Judge may consider the ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

5. Generally, homeowners are required to allow contractors access to attempt to complete and correct their work before the Registrar will suspend or revoke the contractor’s license. However, a homeowner’s failure to provide reasonable access for a contractor to comply with a directive issued by the Registrar is an affirmative defense that the contractor bears the burden to establish.

6. However, the evidence presented at hearing shows that Mr. and Mrs. Wilberding’s refusal to allow LICD to install cabinets supplied by Cabinet Sellerz for a third time in their home to be reasonable. LICD believed that the previous cabinets were defective. Mrs. Wilberding provided credible testimony that she asked LICD if it would use a different supplier or pay her and her husband to hire someone else to complete the work.

7. The Administrative Law Judge concludes that LICD has failed to meet its burden to establish that it was denied access to the home of Mr. and Mrs. Wilberding.

8. The preponderance of the evidence shows that LICD failed to perform

work in compliance with professional industry standards in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(b).

9. The preponderance of the evidence shows that Respondent failed to

correct the items listed in the ROC’s Directive without valid justification, which is a 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 ROC License: No. 325182 held by Lauer's Innovative Construction & Design, LLC, 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 A.R.S. § 32-1154(E).

It is further recommended that 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.

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 days from the date of that certification.

Done this day, August 8, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary