ALJDEC decisions subject to certification as final

2022A-04190-CHC-ROC · Registrar of Contractors · 2022-12-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Chad Snyder,

COMPLAINANT

AZ Pro Resource LLC

License No. ROC 333098,

RESPONDENT

No. 2022A-04190-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 22, 2022

APPEARANCES: Complainant Chad Snyder appeared via Google Meet. John Cabezas appeared via Google Meet on behalf of Respondent AZ Pro Resource LLC. Registrar of Contractors Investigator Mark Nipp appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

AZ Pro Resource LLC (Respondent) is the holder of License No. 333098 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 11, 2021, Chad Snyder (Complainant) agreed to have Respondent order manufactured cabinets and install the same in his kitchen remodel. The total cost was to be $15,770.25.

On or about May 23, 2022, the Registrar received a Complaint containing eight 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 June 20, 2022.

Investigator Nipp then issued a written directive on or about June 22, 2022, 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 July 11, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

1. Compliance Item: Cabinet doors are misaligned and there are gaps between some of the doors/cabinets

Investigator’s Observation: Verified

The complainant explained that all of the cabinet doors were misaligned. I inspected the doors and measured the tops and found that the horizontal plane of most of the doors exceeded 1/8” difference. Tops of cabinet doors must be in the same horizontal plane, within 1/8". The gap issue is duplicated in compliance item

#3.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 7-23

Governing Rule: A.R.S. § 32-1154(A) (3), 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.

2. Compliance Item: Cabinet doors have gaps between them and do not close flush. So you can see inside the cabinets.

Investigator’s Observation: Verified

The complainant pointed out seven door sets that had large enough gaps to see into the cabinets.

I saw there were inconsistent gaps between the doors. The difference in the gaps was as much as 1⁄4”. I was not able to determine if this was an adjustment issue or if the doors were not sized correctly. A contractor shall perform all work in a professional and workmanlike manner.

I also noted that there were two doors that did not close completely at a corner, indicating warpage. I measured each door and determined that the warp for each door exceeded 1/8”. A warp of 1/8" in 30" is considered acceptable.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 7-36

Governing Rule: A.R.S. § 32-1154(A) (3), 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.

3. Compliance Item: Inside of cabinets have multiple holes/marks from being hung incorrectly and/or moved

Investigator’s Observation: Verified

The complainant showed me three cabinets where there were multiple patches in the back and sides of the cabinet.

I saw the patches were adhered to the back of the cabinet and I was not able to remove them. There was an exposed screw head in one cabinet along with a total of 14 patches. The second cabinet had a total of 13 patches. The third cabinet had a total of 6 patches. All three cabinets had multiple visible screw heads. A contractor shall perform all work in a professional and workmanlike manner.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 37-39

Governing Rule: A.R.S. § 32-1154(A) (3), 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.

4. Compliance Item: Inside shelving has marks/scratches

Investigator’s Observation: Verified

The complainant explained that the edge banding on the inside shelving was very rough and appeared scratched.

I saw that the edge banding on the shelves was jagged on the edges giving the appearance of scratches and dings. A contractor shall perform all work in a professional and workmanlike manner.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 40-44

Governing Rule: A.R.S. § 32-1154(A) (3), 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.

5. Compliance Item: Bottom cabinets have different sized gaps on each side of the stove

Investigator’s Observation: Verified

I saw the spaces on each side of the oven were different. I saw that on the lower left side of the oven, the cabinet had a kick plate that extended beyond the cabinet and prevented the oven from being centered. A contractor shall perform all work in a professional and workmanlike manner.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 45-46

Governing Rule: A.R.S. § 32-1154(A) (3), 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.

6. Compliance Item: Some of the handles on the drawers are not straight

Investigator’s Observation: Verified

I saw two draw pulls that were off by as much as 1⁄4” making them not level or square on the drawer face. A contractor shall perform all work in a professional and workmanlike manner.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 47-52

Governing Rule:

7. Compliance Item: overall, the installers did not pay attention to detail and left corrections needed

Investigator’s Observation: Verified

The complainant explained that there were several small detail items that were not done. The complainant pointed out a void in the trim under the upper cabinets on the far right of the kitchen.

I saw a void where the trim had been cut too short. Voids or open knots should not be on outside of cabinet unless special effect is requested.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 53

Governing Rule: A.R.S. § 32-1154(A) (3), 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 July 19, 2022, Investigator Nipp conducted a Compliance Jobsite Inspection. Investigator Nipp noted the following:

Compliance Jobsite General Notes:

I received a VM from the respondent on 07/19/2022 and returned his call. The respondent stated he only sold the cabinets and did not do the work. In an email from the respondent dated 07/19/2022, the respondent again stated that he did not install the cabinets and only acted as an agent for OG Cabinets (an unlicensed entity).

On May 27, 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); A.R.S. § 32-1154(A)(9)(a); A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

On or about July 27, 2022, Respondent e-mailed an Answer to the Registrar, stating that he was merely the selling agent for OG Cabinets and did not manufacture or install the cabinets.

On or about August 12, 2022, a Notice of Hearing was issued setting a hearing on September 27, 2022 at the Office of Administrative Hearings, an independent state agency.

After a couple of continuances, the hearing was held on November 22, 2022.

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

Investigator Nipp testified that two warning letters were issued to Respondent. One was for contracting outside of the dollar amount of his license, as the contract was in excess of $5,000.00. The second warning letter was for aiding and abetting an unlicensed contractor.

In addition, Investigator Nipp testified that the workmanship defects were due to the installation of the cabinets, and he believed that Respondent would still be responsible as he referred to the installers as “my subcontractors”.

Chad Snyder testified on his own behalf. He testified that he had planned and drew the layout for the kitchen cabinets and discussed the game with his general contractor, Adrian as well as Isaias, the owner of OG Cabinets.

Mr. Snyder testified that there were many mistakes in the type and location of the cabinetry, as well as many delays.

Mr. Snyder also testified at multiple times, Mr. Cabezas came to his residence and would oversee the installation.

John Cabezas testified on behalf of Respondent. He testified that he was contacted by Isaias and Adrian to help facilitate the cabinets. Mr. Cabezas testified further that he was the salesman for Isaias’ company, OG Cabinets, and that he would only take a small fee for facilitating the sale, (about $1,200.00).

Mr. Cabezas testified that he believed that the errors and delays were caused by Adrian, and that is who Mr. Snyder should file a complaint.

In addition, Mr. Cabezas testified several times that he did not manufacture or install the cabinets and only came to the jobsite to try to ensure that OG Cabinets complied with the build.

Administrative notice is taken of Respondent’s prior License record on December 6, 2022. Such prior License record reflects that Respondent’s License No. 333098 was first issued on April 21, 2021, 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, and Mr. Cabezas admitted that he contracted with OG Cabinets to manufacture and install the kitchen cabinets. Per the testimony of Investigator Nipp and as well as the reference in his Compliance Jobsite Inspection notes, OG Cabinets was an unlicensed entity. Therefore, Complainant established that Respondent was in violation of A.R.S. § 32-1154(A)(9)(a) and (d).

Further, based upon the evidence presented, as well as the invoice for AZ Pro Resource, Respondent was in violation of A.R.S. § 32-1154(A)(16), for contracting beyond the scope of its license because it charged more than $5,000.00.

The preponderance of the evidence established, that the workmanship of the cabinets and the installation of the same as described by Investigator Nipp was not per Registrar standards as evidenced by cabinet doors being misaligned, and they had gaps so you could see inside the cabinets. There were also multiple holes and marks on the inside of the cabinets, and some of the pull handles on the drawers were not straight, and finally some small detail items were not completed. Therefore, Respondent was 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. 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. 333098 for a period of fifteen 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.

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.

-54864001

001

-137160-45720000Done this day, December 6, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Chad Snyder

[email redacted]

AZ Pro Resource, LLC

[email redacted]

By Miranda Alvarez

Legal Secretary

-54864001

001

-137160-45720000