ALJDEC decisions subject to certification as final

2022A-06832-CHC-ROC · Registrar of Contractors · 2023-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Tyson Kinkaid Borum,

COMPLAINANT

Pristine Interiors LLC

License No. ROC 321017,

RESPONDENT

No. 2022A-06832-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 18, 2023

APPEARANCES: Complainant Tyson Kinkaid Borum appeared via Google Meet on his own behalf. Michael Hancock appeared via Google Meet on behalf of Pristine Interiors LLC. Registrar of Contractors Investigator Albert Bernal appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Pristine Interiors LLC (Respondent) is the holder of License No. 321017 issued by the Arizona Registrar of Contractors (Registrar).

In approximately June 2021, Tyson Kinkaid Borum (Complainant) agreed to have Respondent provide cabinets for his kitchen and master bathroom. The total price per the contract was to be approximately over $160,000.00, and Complainant had paid $129,858.10.

On or about August 12, 2022, the Registrar received a Complaint containing twenty items against Respondent from Complainant alleging abandonment and poor work with respect to project.

The Registrar assigned the complaint to Investigator Albert Bernal. The jobsite inspection was performed on September 7, 2022.

Investigator Bernal then issued a written directive on September 26, 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 October 19, 2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Cabinets - Kitchen, Master bath - work not provided and/or not per material quoted.

Investigator’s Observation: I noted that various cabinets throughout the kitchen, bathrooms and master bedroom closet were provided. However, I was shown the vanity in the master bathroom. The counter top was removed, but the vanity remained installed. It appears the parties have reached a new agreement regarding the installation and delivery of the cabinets. The Respondent should complete these items as per contract/written agreement.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 2 - Mudroom made incorrectly.

Investigator’s Observation: I observed the lower bin had a lip towards the outside edge. Bin bottom surface should be flat. Contractor acknowledge the issue and agreed to correct it. Also I noted the wood panel used to build the drawers were not the same thinness to be consistent with the rest of the cabinets shown to me. Drawers were not dovetail style to match and / or be consistent with the rest of the drawers shown to me. Contractor acknowledge the issue and agreed to correct it. It appears the parties have reached a new agreement regarding the installation and delivery of the cabinets and other components. The Respondent should complete these items as per contract/written agreement.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 7 - Multiple Cabinets in the kitchen are two different colors

Investigator’s Observation: I observed that several cabinets in the kitchen area were two different colors. Contractor acknowledge the issue and agreed to correct it. It appears the parties have reached a new agreement regarding the installation and delivery of the cabinets. The Respondent should complete these items as per contract/written agreement.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 8 - Poor workmanship throughout-gap between end fridge cabinet and kitchen wall

Investigator’s Observation: I noted that there was a gap readily visible between the kitchen wall and the end fridge cabinet. Contractor acknowledge the issue and agreed to correct it. It appears the parties have reached a new agreement regarding the installation and delivery of the cabinets. The Respondent should complete these items as per contract/written agreement.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 9 - Poor workmanship throughout. Tile missing in various the kitchen walls

Investigator’s Observation: I noted that several pieces of tile were missing on various kitchen wall areas. It appeared this happened during the removal of the privies installed cabinets. Tiles shall be reinstalled. Contractor acknowledge the issue and agreed to correct it. Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 10 - Door trim not installed in bathroom’s doors.

Investigator’s Observation: I noted that the door trim was missing in the auxiliary bathrooms. Door trim shall be reinstalled. Contractor acknowledge the issue and agreed to correct it. Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 11 - multiple areas on kitchen walls were damage when removing cabinets and counter tops.

Investigator’s Observation: I observed several wall areas in the kitchen where the drywall was damaged due to the cabinets and counter tops removal. Contractor acknowledge the issue and agreed to correct it. It appears the parties have reached a new agreement regarding the installation and delivery of the cabinets. The Respondent should complete these items as per contract/written agreement.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 12 - gaps between counter top and wall. (kitchen cabinet)

Investigator’s Observation: I noted several gaps in between the counter top and the wall tile in various areas throughout the kitchen. Contractor acknowledge the issue and agreed to correct it. It appears the parties have reached a new agreement regarding the installation and delivery of the cabinets. The Respondent should complete these items as per contract/written agreement.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 13 - Kitchen island cabinets missing pullout drawer, hardware and shelves.

Investigator’s Observation: I was shown multiple cabinets in the kitchen island area that were missing the pullout drawers. Contractor acknowledge the issue and agreed to correct it. It appears the parties have reached a new agreement regarding the installation and delivery of the cabinets. The Respondent should complete these items as per contract/written agreement.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 15 - Corner cabinet and cabinets next to it can't be installed.

Investigator’s Observation: I noted that several cabinets in the kitchen area were not secured and/or installed. New cabinets should be the same size as the ones that were removed. Cabinet dimensions should be verified to reassure layout and/ or installation accuracy. It appears the parties have reached a new agreement regarding the installation and delivery of the cabinets. The Respondent should complete these items as per contract/written agreement.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 16 - staples / Nails showing on cabinet's frame.

Investigator’s Observation: I was shown several staples /finished nails that were readily visible throughout the kitchen cabinets. These appeared to be part of the fabrication and not part of the installation. Contractor acknowledge the issue and agreed to correct it. It appears the parties have reached a new agreement regarding the installation and delivery of the cabinets. The Respondent should complete these items as per contract/written agreement.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 17 - Hole on the side panels of the Range Hood

Investigator’s Observation: I noted there was a hole on the right side of the range hood. Contractor acknowledge the issue and agreed to correct it. Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 18 - Shelves hardware, and doors missing in various cabinets.

Investigator’s Observation: I noted that several cabinets throughout the kitchen were missing doors, shelves and pullout drawers. Contractor acknowledge the issue and agreed to correct it. It appears the parties have reached a new agreement regarding the installation and delivery of the cabinets. The Respondent should complete these items as per contract/written agreement.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 19 - gap between cabinet and tongue and groove wall siding (powder bath)

Investigator’s Observation: I noted there was a 1” gap between the tongue and grove wall siding and the powder bath vanity. Contractor acknowledge the issue and agreed to correct it. Respondent shall correct by the appropriate means.

Compliance Item: 20 - Dividers were not installed inside drawers of master bedroom.

Investigator’s Observation: I noted drawers in the master bedroom closet were missing the jewelry dividers. Contractor acknowledge the issue and agreed to correct it. It appears the parties have reached a new agreement regarding the installation and delivery of the cabinets. The Respondent should complete these items as per contract/written agreement.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

(All errors contained in the original).

On October 24, 2022, Investigator Bernal conducted a Compliance Jobsite Inspection. During the inspection he observed the following:

Compliance Jobsite General Notes:

Financial agreements had been made between the two parties regarding cabinet installations, paint, tile, and drywall repairs.

Compliance Findings:

Compliance Item: 1 - Cabinets - Kitchen, Master bath - work not provided and/or not per material quoted.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Incomplete: Cabinets have not been provided and/ or installed in all rooms listed in this complaint item.

Compliance Item: 2 - Mudroom made incorrectly.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Incomplete: No corrections were made to this complaint item.

Compliance Item: 7 - Multiple Cabinets in the kitchen are two different colors

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Incomplete: No corrections were made to this complaint item

Compliance Item: 8 - Poor workmanship throughout-gap between end fridge cabinet and kitchen wall

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Incomplete: No corrections were mad to this complaint item.

Compliance Item: 9 - Poor workmanship throughout. Tile missing in various the kitchen walls

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Incomplete: No corrections were made to this complaint item.

Compliance Item: 10 - Door trim not installed in bathroom’s doors.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Complete.

Compliance Item: 11 - multiple areas on kitchen walls were damage when removing cabinets and counter tops.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Incomplete: No corrections were made to this complaint item.

Compliance Item: 12 - gaps between counter top and wall. (Kitchen cabinet)

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Incomplete: No corrections were made to this complaint item.

Compliance Item: 13 - Kitchen island cabinets missing pullout drawer, hardware and shelves.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standard.

Incomplete: No corrections were made to this complaint item

Compliance Item: 15 - Corner cabinet and cabinets next to it can't be installed.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Incomplete: Corner cabinet was installed in place, however the rest of the cabinets next to it were not permanently installed in place.

Compliance Item: 16 - staples / Nails showing on cabinet's frame.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Incomplete: No corrections were made to this complaint item.

Compliance Item: 17 - Hole on the side panels of the Range Hood Investigator’s Observation: I noted there was a hole on the right side of the range hood. Contractor acknowledge the issue and agreed to correct it. Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Incomplete: No corrections were made to this item.

Compliance Item: 18 - Shelves hardware, and doors missing in various cabinets.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Incomplete: No corrections were made to this complaint item.

Compliance Item: 19 - gap between cabinet and tongue and groove wall siding (powder bath)

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Complete.

Compliance Item: 20 - Dividers were not installed inside drawers of master bedroom.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Incomplete: No corrections were made to this complaint item.

(All errors contained in the original).

On November 17, 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 December 1, 2022, Respondent timely filed an Answer to the Registrar.

On or about December 8, 2022, a Notice of Hearing was issued setting a hearing on January 18, 2023 at the Office of Administrative Hearings, an independent state agency.

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

Investigator Bernal testified that the parties agreed that Respondent was going to manufacture the missing and damaged cabinets, doors and drawers and drop the same to Complainant, but not perform installation. Further, the parties agreed to a financial settlement for the other items.

In addition, Investigator Bernal testified that on October 8, 2022, Mr. Hancock informed him that he would be unable to deliver the materials because of the labor shortage, and supply chain issues.

Complainant testified on his own behalf and submitted 1 exhibit into evidence.

Complainant testified that the project commenced in August 2021, and in October or November 2021 there was some installation but a lot was left incomplete. In December 2021, the parties walked through everything and in April 2022, there was a plan to have the cabinets finished and countertops installed in June 2022. Complainant testified that when he came home from vacation at the end of June, there were no countertops, sinks, or cabinets installed. Complainant testified at that point he terminated the contract, but Responded ended up supplying a portion on the new cabinets which a different contractor installed. Further, Complainant testified that Mr. Hancock performed some of the corrective work in the master bathroom in December 2022.

Mr. Hancock testified on behalf of Respondent, and did not dispute the facts of the case.

Mr. Hancock apologized that he had not been able to complete the project as he suffered delays to a labor shortage, supply chain issues, and that his landlord was making the company move out of their office space. Because of all of this, Mr. Hancock testified that he has chosen to close his business.

Administrative notice is taken of Respondent’s prior License record on February 2, 2023. Such prior License record reflected that Respondent’s License No. 321017 was first issued on August 10, 2018, and reflected 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).

In addition, the preponderance of the evidence established, and Mr. Hancock agreed, 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 preponderance of the evidence 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). Although he could not physically perform some of the work, there was no evidence presented that all of the materials were present at Complainant’s home ready to be installed.

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. 321017 for a period of twenty (20) 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, February 2, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Pristine Interiors LLC

2613 W Birchwood Cir Ste 7 & 8

Mesa, AZ 85202

[email redacted]

Tyson Kinkaid Borum

2563 North Pioneer Rd

Mesa, AZ 85203

[email redacted]

By: OAH Staff

-54864001

001

-137160-45720000