ALJDEC - Licensing

2022A-11478-CHC-ROC · Registrar of Contractors · 2023-07-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Karie Marie Fairchild,

COMPLAINANT

Service Tucson LLC

License No. ROC 332627,

RESPONDENT

No. 2022A-11478-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 5, 2023

APPEARANCES: Complainant Karie Marie Fairchild appeared on her own behalf. Rachel Brown, Owner, and Erik Brown, Qualifying Party, appeared on behalf of Respondent Service Tucson LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Service Tucson LLC (Respondent) is the holder of License No. 332627 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 3, 2022, Karie Marie Fairchild (Complainant) entered into a contract with Respondent for the installation of cabinets and countertops.

On or about December 14, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator John Smith. After a jobsite inspection on January 19, 2023, Investigator Smmith issued a written directive 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 February 6, 2023.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 2: “The cabinets are not hung properly and are uneven with gaps between them.”

Investigator’s Observations: Verified.

The cabinets are not properly attached or secured to the walls.

• Some wall cabinets have screws through the back panels with no screws through the manufacturer ledger boards. The manufacturer ledger boards are the intended/required supporting components of the cabinets.

• Some wall cabinets have screws in the tops, but none in the bottoms.

• Base cabinets are not attached/secured to the walls.

Cabinets are not correctly fastened together.

• At least one connection point of faceframes has no fasteners.

• Most faceframe connections have gaps, are uneven, and not flush.

The cabinets are not level.

• The cabinet to the left of the range opening: the countertop is directly on the cabinet at the back, and approximately 1/2 above the cabinet at the front. The respondent claims the complainant removed a shim. This uneven gap between the cabinet and the countertop (from 0 inches to 1/2 inch), with or without a shim, proves the cabinets and/or the countertops were installed out of level.

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 3: “The Granet countertops that he cut and installed are not installed properly and the counter top is not even at all.”

Investigator’s Observations: Verified.

The countertops are not level or flat.

• Flatness and levelness was checked with a four foot level along the wall. The countertop is high in the center, and slopes downhill in both directions at a slope of 1/4 inch per four feet.

Seams between slabs:

• The seams are excessively wide and not flush (Countertops and backsplashes).

Uneven gap between countertop and backsplash:

• The gap between the countertop and backsplash varies from 0 inches to 1/4 inch.

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.

Because Complainant was not available for one or two days during the directive period, Investigator Smith issued an amended directive with a new deadline of February 8, 2023.

On or about February 1, 2023, Respondent emailed Investigator Smith, “This is our notice of compliance with your written directive to 2022-11478.”

On or about February 14, 2023, Investigator Smith conducted a compliance jobsite inspection. During the compliance inspection, Investigator Smith noted, in pertinent part, as follows:

Compliance Inspection / Investigator’s Observations:

Corrective work has been performed; however, the current conditions do not meet workmanship standards.

The range opening is not square or level

• Countertop on right side of opening is 3/16 inch higher than countertop on left side of opening.

• Sheetrock to front of countertop on right side is 26-1/16 inches.

• Sheetrock to front of countertop on left side is 26-5/8 inch.

The granite is not properly supported.

• There are wood shims, cardboard spacers, and air voids between the sub-tops and the granite. Some air voids exceed 1/8 inch in height. This granite is 2cm granite, which requires full sub-tops to provide full and continuous support to the 2cm granite. Air voids between the sub-tops and the granite does not provide full and continuous support.

Seams do not meet workmanship standards

• Seams are not smooth.

• Seams are 1/8 inch wide, which exceeds the acceptable tolerance of 1/16 inch.

• One seam is a site-cut edge butted up to a factory radius edge.

• One seam has a gap/air void.

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).

Investigator Smith testified that he did not check whether the floor was level because Respondent did not install the floor. Investigator Smith indicated that Respondent was responsible to check the levelness of the floor prior to installing the cabinets on top of the flooring. Investigator Smith acknowledged that Complainant acknowledged installing some caulking at the seam, but denied that the caulking would change the size of the gap in the seam. Investigator Smith also noted that installing and removing the stove would be a normal and expected use of kitchen cabinets and countertops.

Complainant testified that Respondent’s work on the project was flawed. Complainant denied altering the work in any way, including removing shims.

Mr. Brown testified that he accepted the job as a favor to Complainant, but that Complainant had been “dishonest” with him from the beginning. Mr. Brown asserted that the floor was not level and he installed the cabinets using shims to ensure the cabinet installation was level. Mr. Brown alleged that Complainant removed the shims, which caused the cabinets to be uneven at the time of the jobsite inspection.

Administrative notice is taken of Respondent’s prior License record on July 3, 2023. Such prior License record reflects that Respondent’s License No. 332627 was first issued on March 16, 2021, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Respondent’s assertion that Complainant removed shims and/or caused issues by installing and removing the stove were not credible. 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 that Respondent did not 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. 332627 for a period of three 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)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 (40) days from the date of that certification.

Done this day, July 3, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

Karie Marie Fairchild

[email redacted]

John Smith

[email redacted]

Service Tucson LLC

[email redacted]

By: OAH Staff