ALJDEC - Licensing

2023A-00316-CHC-ROC · Registrar of Contractors · 2023-12-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gregory Bender ,

COMPLAINANT

v.

Burdette Cabinet Co Inc

License No. ROC 106325,

RESPONDENT

No. 2023A-00316-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 24, 2023, 9:00 A.M.; August 17, 2023, 9:00 A.M.; October 2, 2023, 12:00 P.M.; October 18, 2023, 8:00 A.M.; October 30, 2023, 8:00 A.M.; October 31, 2023, 8:00 A.M.; November 9, 2023, 8:00 A.M.; November 10, 2023, 8:00 A.M.

APPEARANCES: Complainants Gregory Bender and Angela Bender appeared on their own behalf; Everett S. Butler, Esq., appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

EXHIBITS ADMITTED INTO EVIDENCE: Complainants’ Exhibit Nos. 1-54, 57, 59-63, 65, 67, 71, 73, 74, and 76-82; Respondent’s Exhibit Nos. 1-26.

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Burdette Cabinet Co., Inc. (Respondent), is the holder of License Number 106325 issued by the Registrar of Contractors (Registrar).

2. On or about January 9, 2023, “Gregory or Angela Bender” (“Complainants”) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work by Respondent in connection with the fabrication, finishing, and installation of custom cabinets at a residence in Cave Creek, Arizona (“project”).

3. The Registrar performed a job site inspection of the project on March 9, 2023. The Investigator’s notes provided:

1: During this jobsite investigation both parties acknowledged that the complainant’s have lived in the home for approximately 1-1/2 years since the initial cabinet installation was completed and there has not been a final punch list of items addressed. The complainant’s acknowledged the move in date as being September 2021.

2: During this jobsite investigation both parties acknowledged that the reason for the delay was due to ongoing construction with multiple trades and the respondent wanted to wait for less activity in the home prior to completing the final touch ups and punch list of items.

3: During this jobsite investigation the complainant acknowledged that the cabinets have been cleaned and wiped down since taking possession of the home and that only water and a micro fiber cloth were used to clean the cabinets.

4: Prior to this jobsite investigation the respondent sent an email to the complainant dated January 20, 2023 acknowledging the complaint and items of concern. In the email the respondent stated, please provide me with a few dates during the week of 1/30 that agree with your schedule to ensure my team access to your home. Also, during this time please ensure all cabinetry is accessible and clear of personal items. It is advisable to remain off premises during this time as we will be using lacquers and other finish products that are harsh on the respiratory system.

5: After this jobsite investigation in reviewing the text screenshots provided by the complainant I am able to verify that numerous requests were made over the course of approximately the last 8 months by the complainant starting in June of 2022 in an attempt to get the respondent to address all the items listed in the complaint including

damage to the kitchen exhaust hood that was reported to the respondent when the exhaust hood was installed in March of 2021.

6: After this jobsite investigation the complainant provided a written transcript composed from an audio recording with a Mohawk paint representative during an onsite visit. The following is the written transcript. A full copy of the audio recording was also provided by the complainant via email and reviewed by this investigator and verified for authenticity.

Summary from on-site inspection with Mohawk paint representative.

1. Black paint on all cabinets shows evidence of

a. Lack of Adhesion

b. Thin application below recommended mils

c. Overspray

d. Bubbling

e. Mottling & Flatness

f. Lack of clear coat or proper sheen finish

2. Possible causes

a. Product problem at the manufacturer (chemical)

b. Installation problem with the installer

a. Chemical (over thinning, incorrect combinations of products improper technique etc...)

b. Environmental factors (heat/air etc...)

c. Preparation (sanding etc...)

c. Homeowner abuse was ruled out as a cause of the problems during the inspection.

3. Stain and primary bath paint assessed normal/adequate

4. Recommendation from on-site inspection

d. Replace or sand cabinetry and re-coat

Excerpts quoted from initial investigation in sequence from Mohawk paint (see recording for full content)

BLACK PAINT

My first impression is there's not a ton of finish on them. I'd like to see a couple of your other cabinets. Like to see something a different color.

So here's the general rule on bubbling. If you're getting lift on the finish, you can generally scratch it off real easy here or like this goes this is either dirt or an imperfection.

General rule is when spraying, you're trying to put what we call three to four wet mills down, and you're getting about a mill to a mill and a half when it dries. Okay. This (black cabinets) to me, does not look like it's been cleared. (clear coated) It looks like it's all color to me. Okay. Now, I could totally be wrong on that, but generally, if it was cleared, we would definitely have more finish build than we've got. and it's just a different look. You know, at times (some places) when I look at this, the finish looks

better. there's more build, like, on these okay. Some of it, it's kind of all right, but here it looks very flat. Do you see what the difference I'm talking about? I can tell you by the feel it don’t have a lot of finish on it. This is rough. Feel this. That's generally overspray because big panels are hard to when you stand back, And you can start to see (the flat mottled) because the sun's coming. Now, technically, it could berecoated. There are spots that are most of this is smooth, but that range hood is very

textured. You feel the difference right here? Just run your fingers across it, feel it's gritty. Some of the stuff that I would consider damage on these are not in spots where you’d normally see damage, which is interesting. I mean, the uppers hardly get used because of the height. I'll just talk to Philip and tell him what I see, and I'll tell them I can physically you know (scratch paint off), that first door I took, I could take where that edge was already. I could peel it off with my nail and not even press it.

PRIMARY BATH You know what, this automatically feels different.

The whole thing just this almost feels like it's cleared. Bathrooms take a beating no matter what you have. And if you feel this, it feels like there’s more finish on it, it just feels different. Like I said, some guys clear, some don't. This kind of feels like it's cleared. Okay. I'm just saying that the product failures I have seen were shop (installer) related. So some of these guys, when they’re having issues spraying, their answer is

solvents. Well, we have percentages. You're not supposed to exceed on solvents. And when you do that, if you exceed that, sometimes you kill the integrity of the product. Sometimes they'll put a ton of acetone in them to get them to flash off and dry fast so they can move faster. And that's sometimes kind of what you get. What it does is it actually makes the finish tube brittle.

BLACK PAINT

Okay, now what's interesting on this is this just seems to me that on the edges and stuff, there’s not a lot of finish on it. Again, I can't be 100% sure. But the biggest thing I see when I get failures that are cracking or peeling, generally they have just thinned the product way beyond what it should have been. And what you do is you kill the solids of integrity that makes it durable. Well, there's so many things that can cause failure.

If it is just a matter of it's not enough finish, then they could be not completely stripped, but you could sand them very heavily in edges and then basically reseal them, recode them with color, and make them the way they should be.

And there comes a point where on something like this, that it's almost faster to make new doors. I hate to say it, but when you look at a labor standpoint. They just buy new doors, and then you don’t have to worry that you don't have a lingering problem with something still being on there that was in a problem to begin with. This (side panel) looks more like it. I was standing there, and I caught the glare, and that looks like the most that's kind of what I would expect the whole kitchen to look like. If you feel that, you'll feel that, you feel a little different.

Like there's more (paint/clear) on them, but not like this one's Got some rough spots back here, but it's interesting. So that's kind of, to me, a sign of dry spray. And what happened is it's where there's not enough. That's generally a sign of dry spray, where when they put the product down, the entire panel is not wet enough. And it's kind of almost like it dries really fast and then you get texture or roughness. That's kind of what I'm feeling here. (hood) This definitely feels like overspray to me. The texture. That's

kind of what you get. what you get if you feel like it gets better when you go up.

RECOMENDATION

Angela: Okay, so if this was your kitchen, what would you do?

Be busy for a while.

Angela: But what does that mean?

I recoat it. And what was funny when Phil called me today, he goes, I might wreck your day. but he goes, can you go look at a kitchen?

Yeah, this seems to be more of an adhesion issue. That stuff generally will pop up in the first three to six months, sometimes not. But if it's grossly too much finish, it generally rear sits head in a couple of spots pretty quick. So you can see where there's so many variables. But your bathroom cabinet seems very normal to me. The seal, the amount of finish on it, it's drastic. It feels normal to the feel. I could not just take my nail and take it off the edge (compared to the black paint that scraped off with his nail). So I have to think something happened with this black.

7: After this jobsite investigation the respondent provided a copy of an email sent from Project Manager & Mohawk Technical CS RPM Wood Finishes Group stating the following. “We received and tested two pieces of finished wood from your kitchen cabinet installation and have determined that the finish materials are performing as expected with no abnormalities and are consistent with a pre-catalyzed lacquer finish.”

8: After this jobsite investigation both parties provided a copy of the approved shop plans. Both copies appear to be identical with the exception of the exhaust hood dimensional detail which is missing in the respondent’s copy.

Compliant Item 1: All cabinetry has unfinished nail holes, incomplete touch up, and no final install corrections have been made;

Investigator’s Observation: Verified. At this jobsite investigation in the kitchen I observed cabinetry installed with nails holes and incomplete touch up. See P (2), P (3), P (8), P (14), P (15), P (18), P (20), P (21) and P (24). The respondent acknowledged there are unfinished nail holes throughout, incomplete touch up and a final punch list of items has not been completed. The respondent is to correct the unfinished nail holes and incomplete touch up by appropriate means.

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

Compliant Item 2: Screws protrude through cabinet fronts, examples: Master Bedroom 2nd Right drawer, 3rd Right drawer;

Investigator’s Observation: Verified. At this jobsite investigation at the master bathroom vanity I observed screws protruding through the cabinet drawer fronts at 2 locations. See P (3). The respondent is to correct by appropriate means.

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

Compliant Item 3: Cabinetry is dented/damaged, examples: wood chunks are missing on interior trim on cabinet doors,

Investigator’s Observation: Verified. At this jobsite investigation at the kitchen and bathroom vanities with black painted surfaces I observed damage including bare wood. See P (2), P (6) thru P (8), P (10) thru P (16), P (18), P (23) and P (24) thru P (26). Referring to Investigator Note #6, the Mohawk paint representative compared the black painted surfaces with other cabinets of a different color that do not show the same

characteristics and ruled out wear and tear or homeowner abuse as these cabinets do not display any finish damage. See P (3) thru P (5). As a general rule and this investigator’s opinion that new cabinets should be expected to perform for at least 2 years. The respondent is to correct by appropriate means.

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

Compliant Item 4: hood dented during install;

Investigator’s Observation: At this jobsite investigation I observed a dent in the stove top exhaust hood which was reported to and acknowledged by the respondent on multiple occasions via text message between the 2 parties. The respondent is to correct the hood dented during installation by appropriate means.

Compliant Item 5: Cabinetry paint/finish including but not limited to: 1. Rubbing off

Investigator’s Observation: Verified. At this jobsite investigation the complainant showed me numerous areas at the black painted kitchen and bathroom cabinets where it appears the painted finish is rubbing off with numerous blemishes, nicks and dings on the finished surfaces of the cabinets. See P (2) and P (6) thru P (26). After this jobsite

investigation the complainant provided a short video demonstrating that by using a clean dry soft white cloth and wiping the edge of one of the kitchen cabinets 1 time the finish rubbed off. Referring to Investigator Note #6, the Mohawk paint representative compared the black painted surfaces with other cabinets of a different color that do not show the same characteristics and ruled out wear and tear or homeowner abuse as these cabinets do not display any finish damage. See P (3) thru P (6). During this jobsite investigation I did not attempt to remove the black finish with my finger nail as the ROC does conduct destructive investigations. As a general rule and this investigator’s opinion that new cabinets should be expected to perform for at least 2 years. The respondent is to correct by appropriate means.

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

Compliant Item 6: Cabinetry paint/finish including but not limited to: 2. Bubbling,

example: 2 fronts upper right stove, upper between Fridge and Freezer

Investigator’s Observation: Verified. At this jobsite investigation in the kitchen I observed 1 of the kitchen cabinet doors paint finish has bubbling on the surface. See P (9). During this jobsite investigation the complainant explained that the respondent took one of the kitchen cabinet doors with bubbling for a paint match and when the door was returned the bubbling had been corrected. I am able to verify there is bubbling present on 1 of the black cabinet doors painted finish surface. The respondent is to correct by appropriate means.

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

Compliant Item 7: Cabinetry paint/finish including but not limited to: 3. Scratched

Investigator’s Observation: Verified. At this jobsite investigation at the kitchen and bathroom vanities with a black painted finish I observed dings and scratches on the painted surfaces. See P (2), P (6) thru P (8), P (10) thru P (16), P (18), P (23) and P (24) thru P (26). Referring to Investigator Note #6, the Mohawk paint representative compared the black painted surfaces with other cabinets of a different color that do not

show the same characteristics and ruled out wear and tear or homeowner abuse as these cabinets do not display any finish surface damage. See P (3) Thru P (6). The Mohawk paint representative expressed concern for lack of adhesion, thin application below recommended mils and lack of clear coat or proper sheen finish. As a general rule and this investigator’s opinion that new cabinets should be expected to perform for at least 2 years. The respondent is to correct by appropriate means.

Compliant Item 8: Cabinetry paint/finish including but not limited to: 4. Raw wood, example: trim piece in kitchen pantry, east side of island above counter

Investigator’s Observation: Verified. At this jobsite investigation at the kitchen pantry east side of the island above the counter I observed raw wood exposed at a trim seam. See P (25). It appears the trim finish lifted and is missing exposing bare wood. I also observed what appears to be inadequate paint coverage where there is evidence of bare wood on the surface of the cabinets. See P (9) thru P (24). Referring to Investigator Note #6, the Mohawk paint representative compared the black painted surfaces with other cabinets of a different color that do not show the same characteristics and ruled out wear and tear or homeowner abuse as these cabinets do not display any finish damage. See P (3) thru P (6). The Mohawk paint representative expressed concern for lack of adhesion, thin application below recommended mils and lack of clear coat or proper sheen finish. As a general rule and this investigator’s opinion that new cabinets should be expected to perform for at least 2 years. The respondent is to correct by appropriate means.

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

accordance with professional industry standards.

Compliant Item 9: Cabinetry paint/finish including but not limited to: 5. Inadequate sanding on cabinet door detail that inhibits proper paint adhesion

Investigator’s Observation: Not Verified. At this jobsite investigation the complainant showed me numerous areas at the black painted kitchen and bathroom cabinets where it appears the painted finish is inadequate with numerous blemishes, nicks and dings on the finished surfaces of the cabinets. See P (6) thru P (26). Referring to Investigator Note #6, the Mohawk paint representative compared the black painted surfaces with other cabinets of a different color that do not show the same characteristics and ruled out wear and tear or homeowner abuse as these cabinets do not display any finish damage. See P (3) thru P (6). The representative expressed concern for lack of adhesion, thin application below recommended mils and lack of clear coat or proper sheen finish as well as possible causes being preparation “sanding etc”. I am unable to determine whether or not the cause of the improper paint adhesion and missing finish paint is the result of inadequate sanding on the cabinet door detail that would inhibit proper paint adhesion.

Governing Rule: No Action

Compliant Item 10: Cabinetry paint/finish including but not limited to: 6. Inadequate primer on black doors and cabinets

Investigator’s Observation: Not Verified. At this jobsite investigation the

complainant showed me numerous areas at the black painted kitchen and bathroom cabinets where it appears the painted finish is inadequate with numerous blemishes, nicks and dings on the finished surfaces of the cabinets. See P (6) thru P (26). I am able to verify there is exposed bare wood on the painted kitchen cabinet black finish including upper wall cabinets at a higher elevation that are not exposed to normal daily use. See P (20) and P (21). I am unable to verify whether or not the exposed bare wood is the result of inadequate primer.

Compliant Item 11: Cabinetry paint/finish including but not limited to: 7. Inadequate finish/sealer on black finish for consistent smoothness and finish under various lighting conditions.

Investigator’s Observation: Verified. At this jobsite investigation the complainant showed me numerous areas at the black painted kitchen and bathroom cabinets where it appears the finish sealer is inadequate with numerous blemishes, nicks and dings on the finished surfaces of the cabinets. See P (6) thru P (26). After this jobsite investigation the complainant provided a short video demonstrating that by using a clean dry soft white rag and wiping the edge of one of the kitchen cabinets 1 time the finish was removed. Referring to Investigator Note #6, the Mohawk paint representative compared the black painted surfaces with other cabinets of a different color that do not show the same characteristics and ruled out wear and tear or homeowner abuse as these cabinets do not display any finish damage. See P (3) thru P (6). The representative expressed concern for lack of adhesion, thin application below recommended mils and lack of clear coat or proper sheen finish. The respondent is to correct by appropriate means.

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

Compliant Item 12: Black paint finish has a "spray paint or mottled" appearance;

Investigator’s Observation: Verified. At this jobsite investigation the complainant showed me numerous areas at the black painted kitchen and bathroom cabinets where it appears the black painted finish is inadequate with numerous blemishes, nicks and dings including mottling on the finished surfaces of the cabinets. See P (6) thru P (26). Referring to Investigator Note #6, the Mohawk paint representative compared the black painted surfaces with other cabinets of a different color that do not show the same characteristics and ruled out wear and tear or homeowner abuse as these cabinets do not display any finish damage. See P (3) thru P (6). The representative further describes the flat mottling appearance is generally due to overspray and or inadequate paint coverage and some cabinets have more coverage than others showing more of a flat finish. The respondent is to correct by appropriate means.

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

Compliant Item 13: Stained cabinetry finish has not been touched up or corrected, example: second bedroom vanity door;

Investigator’s Observation: Verified. At this jobsite investigation both parties agree there has not been a final punch list of items addressed. The respondent is to correct the stained cabinetry finish that has not been touched up or corrected by appropriate means.

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

Compliant Item 14: Drawers and doors have not been adjusted for smooth open/close, example: master bedroom bottom right drawer, master bedroom bottom left drawer, doors under kitchen sink, second bedroom bottom right drawer;

Investigator’s Observation: Verified. At this jobsite investigation the respondent acknowledged that there has not been a final punch list performed, touch up and adjustments completed to the drawers and doors. The respondent is to complete the cabinet installation per contract.

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

Compliant Item 15: Toe-kick valance: 1. Does not have equal width on each end and/or equal widths on the end to others in the same room, example: master bathroom, kitchen

Investigator’s Observation: Verified. At this jobsite investigation at the master bathroom vanity I observed toe kick valance is not uniform. See P (4). After this jobsite investigation the complainant provided a copy of a text between the 2 parties discussing the replacement of the toe kick valance. The respondent agreed via text message to make the corrections to the toe kick valances that do not have equal width at each end.

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

Compliant Item 16: Toe-kick valance: 2. Have been cut in multiple pieces instead of 1 solid piece, example: master bathroom, kitchen

Investigator’s Observation: Verified. At this jobsite investigation I observed and am able to verify the toe kick valance has been installed with multiple pieces at the master bathroom and kitchen. The respondent is to correct by appropriate means.

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

Compliant Item 17: Toe-kick valance: 3. Were cut at a 45 degree angle instead of a 90 degree angle (flat front), example: kitchen

Investigator’s Observation: Verified. At this jobsite investigation I observed toe kick valances in the kitchen with 45 degree cuts at the appliances. See P (18). During this jobsite investigation the respondent stated the valances will be replaced. After this jobsite investigation in reviewing the approved shop plans provided by both parties I am able to verify the valance toe option selected is option #5 showing a square cut. The 3D rendering also shows square cuts. The respondent is to correct the toe kick valances with a 45 degree angle by appropriate means.

Compliant Item 18: Toe-kick valance: 4. Toe kick valance is shorter than the plans and does not have an opening height of 3.5" between the floor and the bottom of the frame, example: kitchen, casita;

Investigator’s Observation: Verified. At this jobsite investigation I observed toe kick valances installed at the kitchen with an approximate measurement of 2-3/4”. Both parties agree the Casita toe kick valances are identical to the kitchen. Industry standard for toe kick valance height is 3-1/2”. During this jobsite investigation the respondent agreed to correct the height of the toe kick valances in the kitchen and casita. See P (15), P (17) and P (26).

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

Compliant Item 19: Cracked door fronts, example: master bathroom front top, 3rd drawer, 1st drawer;

Investigator’s Observation: Verified. At this jobsite investigation I observed and am able to verify there are 2 drawer fronts with cracks. See P (5). The respondent is to correct by appropriate means.

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

Compliant Item 20: Cloudy glass that cannot be cleared through cleaning;

Investigator’s Observation: Not Verified. At this jobsite investigation I am unable to verify whether or not the cloudy glass cannot be cleared through cleaning.

Governing Rule: No Action

Compliant Item 21: Sink apron installed crooked, removed by countertop installer;

Investigator’s Observation: Not Verified. At this jobsite investigation at the kitchen sink I observed a cabinet component missing. See P (17) and P (26). The complainant acknowledged that another contractor removed the sink apron to install the sink and now the apron does not fit. I am unable to verify whether or not the sink apron was installed crooked by the respondent as the sink apron has been removed by another contractor.

Governing Rule: No Action ARS §32-1155 (D) (2) (Modification)

Compliant Item 22: Hood over stove is not installed per plan in height or depth. (This causes injury to users of the stove). Hood height to be 36" from counter/stove top and 22" deep from wall)

Investigator’s Observation: Verified. At this jobsite investigation I observed an exhaust hood installed over the kitchen stove. The measurement taken from the top of the stove to the bottom of the exhaust hood is 31-1/2” and the depth from the front of the hood to the back wall is 25-3/4”. In reviewing the initialed and approved shop plans provided by the complainant I am able to verify the height of the hood should be 34” and the depth should be 22”. I am able to verify the exhaust hood over the stove is not installed to the height and depth per the initialed and approved plans. The respondent is to correct by appropriate means.

Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108,

4. Thereafter, the Registrar issued a Written Directive, dated April 10, 2023 (“Directive”), requiring Respondent to remedy the following violations by May 2, 2023, by appropriate means.

Compliant Item 1: All cabinetry has unfinished nail holes, incomplete touch up, and no final install corrections have been made;

Investigator’s Observation: Verified. The respondent is to correct the unfinished nail holes and incomplete touch up by appropriate means.

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

Compliant Item 2: Screws protrude through cabinet fronts, examples: Master Bedroom 2nd Right drawer, 3rd Right drawer;

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

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

Compliant Item 3: Cabinetry is dented/damaged, examples: wood chunks are missing on interior trim on cabinet doors,

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

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

Compliant Item 4: hood dented during install;

Investigator’s Observation: At this jobsite investigation I observed a dent in the stove top exhaust hood which was reported to and acknowledged by the respondent on multiple occasions via text message between the 2 parties. The respondent is to correct the hood dented during installation by appropriate means.

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

Compliant Item 5: Cabinetry paint/finish including but not limited to: 1. Rubbing off

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

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

Compliant Item 6: Cabinetry paint/finish including but not limited to: 2. Bubbling,

example: 2 fronts upper right stove, upper between Fridge and Freezer

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

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

Compliant Item 7: Cabinetry paint/finish including but not limited to: 3. Scratched

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

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

Compliant Item 8: Cabinetry paint/finish including but not limited to: 4. Raw wood, example: trim piece in kitchen pantry, east side of island above counter

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

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

Compliant Item 11: Cabinetry paint/finish including but not limited to: 7. Inadequate finish/sealer on black finish for consistent smoothness and finish under various lighting conditions.

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

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

Compliant Item 12: Black paint finish has a "spray paint or mottled" appearance;

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

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

Compliant Item 13: Stained cabinetry finish has not been touched up or corrected, example: second bedroom vanity door;

Investigator’s Observation: Verified. The respondent is to correct the stained cabinetry finish that has not been touched up or corrected by appropriate means.

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

Compliant Item 14: Drawers and doors have not been adjusted for smooth

open/close, example: master bedroom bottom right drawer, master bedroom bottom left drawer, doors under kitchen sink, second bedroom bottom right drawer;

Investigator’s Observation: Verified. The respondent is to complete the cabinet installation per contract.

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

Compliant Item 15: Toe-kick valance: 1. Does not have equal width on each end

and/or equal widths on the end to others in the same room, example: master bathroom, kitchen

Investigator’s Observation: Verified. The respondent agreed via text message to make the corrections to the toe kick valances that do not have equal width at each end.

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

Compliant Item 16: Toe-kick valance: 2. Have been cut in multiple pieces instead of 1 solid piece, example: master bathroom, kitchen

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

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

Compliant Item 17: Toe-kick valance: 3. Were cut at a 45 degree angle instead of a 90 degree angle (flat front), example: kitchen

Investigator’s Observation: Verified. The respondent is to correct the toe kick valances with a 45 degree angle by appropriate means.

Governing Rule: ARS §32-1154 (A) (2) (A) Departure from or disregard of plans or specifications, ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 18: Toe-kick valance: 4. Toe kick valance is shorter than the plans and does not have an opening height of 3.5" between the floor and the bottom of the frame, example: kitchen, casita;

Investigator’s Observation: Verified. The respondent agreed to correct the height of the toe kick valances in the kitchen and casita.

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

Compliant Item 19: Cracked door fronts, example: master bathroom front top, 3rd drawer, 1st drawer;

Investigator’s Observation: Verified. The respondent is to correct by appropriate means.

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

Compliant Item 22: Hood over stove is not installed per plan in height or depth. (This causes injury to users of the stove). Hood height to be 36 inches from counter/stove top and 22 inches deep from wall)

Investigator’s Observation: Verified. I am able to verify the exhaust hood over the stove is not installed to the height and depth per the initialed and approved plans. The respondent is to correct by appropriate means.

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

5. The Registrar performed a Compliance Inspection on May, 16, 2023, and made the following compliance findings:

Compliant Item 1: All cabinetry has unfinished nail holes, incomplete touch up, and no final install corrections have been made; Investigator Observation: The respondent did not fill all the nail holes and is not in compliance with the directive.

Compliant Item 2: Screws protrude through cabinet fronts, examples: Master Bedroom 2nd Right drawer, 3rd Right drawer; Investigator Observation: The respondent is in compliance with the directive.

Compliant Item 3: Cabinetry is dented/damaged, examples: wood chunks are missing on interior trim on cabinet doors, Investigator Observation: The respondent is not in compliance with the directive.

Compliant Item 4: hood dented during install; Investigator Observation: The respondent is not in compliance with the directive.

Compliant Item 5: Cabinetry paint/finish including but not limited to: 1. Rubbing off Investigator Observation: The respondent is not in compliance with the directive.

Compliant Item 6: Cabinetry paint/finish including but not limited to: 2. Bubbling, example: 2 fronts upper right stove, upper between Fridge and Freezer Investigator Observation: The respondent corrected the cabinet doors with bubbling and is in compliance with the directive.

Compliant Item 7: Cabinetry paint/finish including but not limited to: 3. Scratched Investigator Observation: The respondent is not in compliance with the directive.

Compliant Item 8: Cabinetry paint/finish including but not limited to: 4. Raw wood, example: trim piece in kitchen pantry, east side of island above counter Investigator Observation: The respondent is not in compliance with the directive.

Compliant Item 11: Cabinetry paint/finish including but not limited to: 7. Inadequate finish/sealer on black finish for consistent smoothness and finish under various lighting conditions. Investigator Observation: The respondent is not in compliance with the directive.

Compliant Item 12: Black paint finish has a "spray paint or mottled" appearance; Investigator Observation: The respondent is not in compliance with the directive.

Compliant Item 13: Stained cabinetry finish has not been touched up or corrected, example: second bedroom vanity door; Investigator Observation: The respondent is not in compliance with the directive.

Compliant Item 14: Drawers and doors have not been adjusted for smooth open/close, example: master bedroom bottom right drawer, master bedroom bottom left drawer, doors under kitchen sink, second bedroom bottom right drawer; Investigator Observation: The right side middle drawer observed at the second bedroom vanity does not close consistently. The respondent is not in compliance with the directive.

Compliant Item 15: Toe-kick valance: 1. Does not have equal width on each end and/or equal widths on the end to others in the same room, example: master bathroom, kitchen Investigator Observation: The respondent is not in compliance with the directive.

Compliant Item 16: Toe-kick valance: 2. Have been cut in multiple pieces instead of 1 solid piece, example: master bathroom, kitchen

Investigator Observation: The respondent is in compliance with the directive.

Compliant Item 17: Toe-kick valance: 3. Were cut at a 45 degree angle instead of a 90 degree angle (flat front), example: kitchen Investigator Observation: The respondent is in compliance with the directive.

Compliant Item 18: Toe-kick valance: 4. Toe kick valance is shorter than the plans and does not have an opening height of 3.5" between the floor and the bottom of the frame, example: kitchen, casita; Investigator Observation: The respondent made an attempt to comply with the directive with the exception of the Casita vanity. The respondent is not in compliance with the directive.

Compliant Item 19: Cracked door fronts, example: master bathroom front top, 3rd drawer, 1st drawer; Investigator Observation: The respondent is in compliance with the directive.

Compliant Item 22: Hood over stove is not installed per plan in height or depth. (This causes injury to users of the stove). Hood height to be 36" from counter/stove top and 22" deep from wall) Investigator Observation: The respondent adjusted the height of the hood from the top of the stove to 32-3/8”. Per the approved shop plans the hood height is to be 34”. The depth of the hood remains at 25-3/4”. Per the approved shop plans the depth is to be 22”. The respondent is not in compliance with the directive.

6. The Registrar then issued a Citation to Respondent, dated May 19, 2023, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a) for failure to perform work in a professional and workmanlike manner);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing for July 24, 2023, at 9:00 A.M. The hearing was commenced on July 24, 2023, and resumed on August 17, 2023, at 9:00 A.M., October 2, 2023, at 12:00 P.M., October 18, 2023, at 8:00 A.M., October 30, 2023, at 8:00 A.M., October 31, 2023, at 8:00 A.M., November 9, 2023, at 8:00 A.M., and November 10, 2023, at 8:00 A.M. The Tribunal permitted the parties an opportunity to submit supplemental briefing until November 29, 2023, which they both submitted, at which time the case was closed.

8. At the hearings, Complainant Angela Bender testified on her own behalf and presented the testimony of Maggie Chacon, Jocelyn Weddle, Donna Sherfield, and Jim Sexton; Respondent presented the testimony of Justin Murdock, Eric Avilla, and Dylan Thomas. David Fagerburg, the Registrar Investigator (“Investigator”), testified on behalf of the Registrar. The Tribunal received and admitted Complainants’ Exhibit Nos. 1-54, 57, 59-63, 65, 67, 71, 73, 74, and 76-82 and Respondent’s Exhibit Nos. 1-26.

9. At the outset of the first hearing session, Respondent moved to exclude Gregory and Angela Bender as witnesses because they had not been disclosed as witnesses in Complainants’ Disclosure Statement. Respondent also moved to exclude Angela Bender from presenting Complainants’ case because only Gregory Bender was listed as a Complainant in the case caption. The Tribunal denied the motions holding that Respondent could have reasonably anticipated that the Benders would be testifying and the general substance of their testimony. Further, the Tribunal also considered the listing of “Gregory or Angela Bender” in the Complaint to be sufficient for both to be considered as Complainants and therefore ruled Angela Bender would be permitted to present Complainants’ case.

10. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. He noted that Complaint Item Nos. 2, 6, 16, 17, and 19 were corrected by Respondent but that the remaining Complaint items on the Directive were not.

He further testified that he rubbed his fingernail without applying pressure on a finished black cabinet door that had been stored by Complainants and that the paint flaked off. He said that he did not recall any film or substance on the cabinets or glass, and that he never saw paint overspray on the cabinets.

He testified that he observed that the cabinets in the bathrooms installed by Respondent did not have the same problems as the black kitchen cabinets, but that Respondent agreed at the inspection to do touch up of the bathroom vanities. He stated he was not sure whether Respondent had agreed to repair the hood dent.

In terms of confirming whether the kitchen hood cabinet was installed per specifications, he testified that he measured the height from the top of the grate, not the burner, to the bottom of the exhaust hood (31 1/2”), and the depth from front of the hood to the back wall (25 3/4"). He stated that he received an initialed missing page of the hood diagram from Complainants on March 21, 2023, for the first time showing a depth of 22”, but also stated he was shown an initialed page of the hood diagram at the job site inspection.

Lastly, he explained that the Registrar has a two-year jurisdiction with regard to workmanship issues.

11. Complainant Angela Bender testified, as herein relevant to the Citation, as to a chronology of project. She further testified on each Directive item as follows:

Complaint Item 1: She testified that in addition to nail holes, this item covered all final installation items including the apron, shelving, and unfinished doors, including in the bathrooms.

Complaint Item 3: She described splintering, lifting, and chipping on the kitchen cabinets. (Respondent’s Exhibit No. 25, pgs. 68, 70; Complainants’ Exhibit No. 40).

Complaint Item 4: She testified that the hood had no dent before installation and was told by the workers it would be repaired during final installation. (Complainants’ Exhibit No. 16, 51; Respondent’s Exhibit No. 14).

Complaint Item 5: She stated that she never used chemicals to clean the kitchen cabinets, but that the paint would still just rub off. (Respondent’s Exhibit No. 25, pgs. 72-76, 81-82; Complainants’ Exhibit No. 15). She stated that issues on cabinet doors were present on doors that had been in storage and on doors high above sink level. She compared the bathroom cabinets installed by Respondent stating the paint does not come off from the gray and stain finishes in the bathrooms.

Complaint Item 7: She testified Justin Murdock used a paper towel on the doors to show durability and it scratched the surface. (Respondent’s Exhibit No. 25, pgs. 38-39). She stated one scratched door was repainted, but two others remain scratched.

Complaint Item 8: She stated only the bubbling was addressed by Respondent, but the raw wood still showing was not. (Respondent’s Exhibit No. 25, pgs. 68, 74, 76, 80-81).

Complaint Item 11-12: She stated that the wiping down of the cabinets created a mottling and flat appearance. (Respondent’s Exhibit Nos. 14, 25, pg. 79).

Complaint Item 13: She stated Respondent did not touch up in the guest bathroom. (Respondent’s Exhibit No. 25, pg. 85).

Complaint Item 14: She admitted that Respondent adjusted almost all the drawers and doors, but said Respondent declined to adjust some, including those under the sink.

Complaint Item 15, 18: She testified that Respondent took care of the toe kicks in kitchen but not in the master bathroom and casita (Complainants’ Exhibit No. 22; (Respondent’s Exhibit No. 25, pg. 20).

Complaint Item 22: She contended that she communicated to Respondent from the outset that she wanted the rangehood cabinet to be as high and as far back as possible due to height of her husband and son. She explained that many individuals had been injured due to the proximity of the hood.

She stated she received drawings from Respondent’s designer, Deandra Robinson, showing the bottom of the hood to be 36” from the cooktop, (Complainants’ Exhibit Nos. 4-6), and a depth to be 22”. (Complainants’ Exhibit 1). She stated the final shop drawings prepared by Respondent show 34” high, which she acknowledged she approved by initialing. (Complainants’ Exhibit 2). She stated she received a copy of a drawing with 22” depth from Ms. Robinson that Ms. Robinson stated was final. (Complainants’ Exhibit 3). She said Ms. Robinson sent her a “signed off” shop copy on November 30, 2020, with a hood dimension of 22” depth on a hood drawing (Complainants’ Exhibit 79, pg. 60), even though it still showed a 24” depth on the more detailed kitchen drawing. (Complainants’ Exhibit 79, pg. 61). She stated the countertops, which affected the height of the cooktop, was intended to be 1 1/2” high but that she signed off on 1 1/8”. She stated the hood was adjusted by Respondent to 32 3/8” height but the depth was still 25 3/4”.

She said no painting occurred in the residence except painting done by Jim Sexton, and that Jim Sexton was careful to cover the cabinets. (Complainants’ Exhibit 62, pg. 4). She said also that most of the cabinet issues were found for the first time in September 2021.

She contended that despite Respondent’s claim, air conditioning was present during the summer months of 2020 at the residence during installation and she presented her APS bills to show significant electricity use during the summer months. (Complainants’ Exhibit No. 82)

12. Maggie Chacon testified on behalf of the Complainants, as herein relevant to the Citation, that she has had a cleaning service, Maggie’s Cleaning Service, for 25 years and has experience with post-construction cleanup. She stated she has been cleaning for Complainants for over 20 years and started cleaning at the subject residence in February 2022. She further testified she was told to clean the cabinets with a cloth and water only. She stated she observed that the paint on the black cabinets would fade while she was cleaning and that the paint was peeling on the corners. She stated she brought it to the attention of Complainants because she did not want to be blamed for it.

13. Jocelyn Weddle testified on behalf of the Complainants, as herein relevant to the Citation, that she has been cleaning houses since 2014. She stated she was hired by Complainants twice to clean the cabinets on September 5, 2021 and again on December 5, 2021. She explained that Complainants directed her to clean them only with a slightly damp soft microfiber cloth. When cleaning the cabinets with such, she said she advised Complainants that the cloth kept getting caught on splinters that were coming off so she had to be careful to apply lighter pressure. She said she could see wood underneath paint when dusting.

14. Donna Sherfield testified on behalf of the Complainants, as herein relevant to the Citation, that she has her own cabinet finishing company, A Little Touch Up, and has been in cabinet finishing for 32 years. She stated she visited the subject residence in mid-July 2023 to inspect the cabinets and she observed that paint would come off the kitchen cabinets when she simply rubbed them with a rag. She said she also observed chattered marks, which she described as unevenness or splinters which she believed were not sanded or filled in the first place. She stated her opinion was that the nature of problem was that not enough material or coats were applied on the cabinet doors, probably lacking primer and clear coat. She further testified certain areas need retouching, and that multiple doors needed to be recoated because there was not enough finish. She stated she compared the black kitchen cabinets with the bathroom cabinets and observed that the gray paint and the stain finish in bathrooms had a much heavier finish. She concluded that she believed this was not a typical wear problem because of the location of the splinters (high above counter) and that she did not find any polish residue on the surfaces.

She admitted that clear coat would not protect against impact damage. She further admitted she made a proposal to Complainants to be hired to remedy the issues.

15. Jim Sexton testified on behalf of the Complainants, as herein relevant to the Citation, that he is a painting contractor and has owned the Artisan Group company for 10 years. He stated he painted a majority of interior of the subject residence starting in August 2021 and returning in March 2022. He stated when masking the cabinets, he brought to Complainants attention cabinet edges that were sharp and splintering with paint flaking off, issues with bubbling paint on cabinet doors, and cloudy finishes because in his view the application seemed to be light. He stated that when painting, he covered the cabinets completely with 3-mil plastic.

He admitted he made a proposal to Complainants to redo the cabinets. He further said he believed the residence was air conditioned in August 2021, otherwise he would not have been there.

16. Justin Murdock testified on behalf of Respondent, as herein relevant to the Citation, that he is the Chief Operating Officer of Respondent and has been for 5 years. He described the manufacturing facility and the design, engineering, and production process for the cabinets. He described the quality control of the hand sanding and stated the parts were already pre-sanded by the supplier. He explained the cabinets were constructed at Respondent’s facility with the finishes applied in a paint booth at the facility. He described the quality control for the finishing and that end panels, trim, and doors all go through the same process at the same time. He described scuffing between coats, then application of sealer, and then application of lacquer. He stated he has used Mohawk materials for 10 years and used this particular batch on other projects without any problems. He stated it was not possible for primer to be omitted because color would not stick. He also described the care taken for the delivery of the cabinets.

He stated he did not disagree there is a problem with the kitchen cabinets. He stated he believed it was due to Complainants’ failure to protect the cabinetry which resulted in an attempt to correct paint overspray and drywall dust on the cabinets. He said undoubtedly chemicals were used on cabinets, and bases this on the fogging. He also stated he saw hazing on cabinet door glass but could not determine the cause without chemical analysis. He stated that if this was a product or application error, he would have expected problems with all the cabinets, not just some of them.

He stated the specifications in the shop drawings shows the hood to be 34” from the stove top burner, not 36”, and depth of 24” from the front of the hood to the wall, not 22”. He stated the depth of the hood is referenced by the 125 designation that shows dimensions of 60 1⁄4 width, 56 1/8 height, and 24 depth, (Respondent’s Exhibit 1, pgs. 9, 11) for a Wolf Range Hood WPW602418 of 60” width, 24” depth, and 18” height. (Respondent’s Exhibit 1, pg. 9). He stated this would not have fit in that hood cabinet cover, and then Complainants changed the hood.

He further testified that Respondent raised the hood top to almost 34”. (Respondent’s Exhibit 10, pg. 11). He stated Complainants changed the thickness of their countertops from 1 1/8” to 1 1/2” after the cabinet installation, which raised the level of the cooktop 3/8” which accounted for the discrepancy of height of the hood being slightly less than 34” from the cooktop level. Also, with regard to the height, he stated it should be measured from the burner, which is flush with the countertops, and not the grate which is 1 1/8” above the burner.

He stated the photographs taken of the hood cabinet show no dent soon after the installation. (Respondent’s Exhibits 5, 13). He further stated he saw no problems with the cabinets in July 2021 photographs. (Respondent’s Exhibit 14).

He further stated there was virtually no communications between the parties between September 2021 and a text in August 2022 (Respondent’s Exhibit 6), except for Respondent’s invoicing on June 14, 2022. (Respondent’s Exhibit 7). He stated Complainants never complained about dimensions of hood cabinet until after July 2022.

17. Erica Avila testified on behalf of Respondent, as herein relevant to the Citation, that he has been a cabinet installer since 2000 and worked as a supervisor on the project. He stated he saw other trades including tiling and painting. He stated the damage to the black cabinets shown to him in the photos was not there when left the project. He further stated he did not damage the cabinets, including the hood cover when he installed it, and that he would not have installed it had it been damaged. He stated the cabinets were always exposed and uncovered, even when a painter was there, and that he never told the Complainants to not protect the cabinets from other trades. He stated the residence was not air-conditioned during the cabinet installation and that there was no power in the house.

18. Dylan Thomas testified on behalf of Respondent, as herein relevant to the Citation, that he is part owner of Finisher’s Warehouse, a specialty wood coating retailer for cabinets and furniture, and has worked in wood coatings for 20 years. He stated Respondent is his customer and has supplied it with all of its wood coatings since 2017, and he has sold Mohawk products since he opened and before that for over 10 years.

He stated he was asked by Respondent in May 2023 to evaluate the cabinet finish at the subject residence although he admitted he had not received permission from Complainants to be in the residence. He stated he observed a “clear case of homeowner’s neglect, abuse and damage, some of which looks intentional, as we have no idea how a homeowner could harm cabinets in such a way through normal everyday use and handling.” (Respondent’s Exhibit No. 8). He further stated he found clear evidence of chemical residue although he admitted he could not get a sample to evaluate in his shop. He stated only a mild glass cleaner should be used on the surface to clean the cabinets. He testified the cabinet condition was not normal wear and tear and that the chips he saw were caused by external impact and that clear coat was not intended to protect against minor impacts.

19. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on March 3, 1995. The site also reflects one Open case, no Disciplined case, and no Resolved/Settled cases.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:

3. Violation of any rule adopted by the registrar.

...

22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....

5. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”

6. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that with regard to some of the Directive items, Respondent failed to perform work in a professional and workmanlike manner in violation of Arizona Administrative Code Rule 4-9-108(a).

Complaint Item No. 1: Complainants have met their burden of proof in establishing that Respondent failed to perform work in a professional and workmanlike manner in violation of Arizona Administrative Code Rule 4-9-108(a) with regard to this Directive item. Respondent conceded it may have missed filling in some of the holes. The Tribunal was persuaded that final touch up in the nature of punch list was never completed by Respondent.

Complaint Item No. 4: Complainants have failed to meet their burden of proof and have not established that Respondent failed to perform work in a professional and workmanlike manner in violation of Arizona Administrative Code Rule 4-9-108(a) with regard to this Directive item. Photographs taken after installation of the hood do not depict the subject damage, although the Tribunal does acknowledge that those photographs were taken at a distance and were not taken for the purpose of memorializing any damage, or lack thereof. The Tribunal was not persuaded from the hood installation video that it was damaged as it was installed. (Complainants’ Exhibit No. 72). Further, the Tribunal found Eric Avilla’s testimony to be credible that if he had damaged the hood during installation, he would not have completed the installation and would have returned it for repair. Lastly, the evidence was not clear that Justin Murdock agreed to repair the hood damage, and the Investigator could not recall whether there was such an agreement.

Complaint Item Nos. 3, 5, 7, 8, 11-14: Complainants have met their burden of proof in establishing that Respondent failed to perform work in a professional and workmanlike manner in violation of Arizona Administrative Code Rule 4-9-108(a) with regard to these Directive items.

Preliminarily, Respondent argued that all Directive items with regard to the cabinets should be dismissed because Complainants had failed to give proper notice of the deficiencies. Respondent cited to the Workmanship Standards for Licensed Contractors (June 2009) (“Workmanship Standards”) which states under the “General Statements,” section that “Contractor’s responsibility on all manufactured surfaces is valid only if the damaged surface is indicated to the contractor or contractor’s representative within 10 days after move-in.” The evidence was disputed as to whether Complainants had in fact given verbal notice during that time period, but there was no evidence presented that Complainants had given written notice of any damage to the cabinet surfaces, as opposed to issues with the toe kicks.

The intent of this standard is not self-evident and raises questions concerning its applicability. A determination by the Tribunal in this regard hinges on what constitutes a “manufactured surface.” The term is not defined in the standards and neither party presented anything in the nature of legislative or agency history to provide any guidance. Indeed, the Investigator was not questioned regarding this standard and it was not raised during the hearing until Respondent’s closing argument.

Respondent contended that the cabinets were a manufactured surface because they were manufactured in Respondent’s manufacturing facility and that anything made in a manufacturing facility is a manufactured item. Justin Murdock testified that the cabinet components came to Respondent pre-sanded and these components were cut, assembled, and finished by Respondent at its manufacturing facility. However, even if a cabinet is considered to be a manufactured item, it does not necessarily follow that the surface of such an item is also manufactured. The Tribunal does not believe that where a material is fabricated is determinative of whether the surface of that material is manufactured or non-manufactured.

The Tribunal presumed throughout the hearing that the cabinets were made of wood. Although the Tribunal did not hear any direct testimony that the cabinets were made of wood, there were references made during the hearing to wood damage, sanding, and saw dust in connection with the cabinets. There was no evidence presented that the cabinet surfaces were made out of anything other than wood. Further, there was no evidence that this wood material was somehow created in Respondent’s facility. Consequently, the Tribunal considers wood to be more in the nature of a raw material, not a manufactured material. Further, the Tribunal does not believe that cutting, assembling, sanding, and painting transforms a wooden surface into a manufactured surface.

The parties’ testimony in this regard may be a factor, but it is not dispositive. Justin Murdock testified that the cabinets were manufactured surfaces and Angela Bender agreed under cross-examination that the cabinets were manufactured surfaces (despite the question posed not including a definition of manufacturing surface). Nevertheless, the Tribunal is not bound by this testimony and finds that the cabinet surfaces were not manufactured surfaces as contemplated in the Workmanship Standards.

Having found that the notice provision of the Workmanship Standards is not applicable here, the Tribunal turns to the substantive workmanship standard and whether Respondent’s work was performed in a professional and workmanlike manner. The Tribunal concludes that it was not with respect to these Directive items, and finds that Complainants have demonstrated by a preponderance of the evidence that the cabinet surfaces were defective.

There was no dispute that paint apparently is still coming off the cabinets and the surfaces continue to splinter almost two years after installation. The Investigator testified he could scrape the paint off with his fingernail, and Dylan Thomas agreed this should not typically happen. The defects on the cabinet surfaces are readily apparent. The Tribunal found video evidence of such to be compelling. (Complainants’ Exhibit Nos. 15, 40). Some thinness of the paint coat on an uninstalled trim piece was observed by a Mohawk representative, the manufacturer of the paint. (Complainants’ Exhibit No. 18). The Investigator testified clear coat was missing in areas. Whether the issues were product failure or application error is unknown as Complainants nor the Investigator could establish the exact cause of the defects. However, in either case, Respondent is responsible for the defects that reflect a failure to perform work in a professional and workmanlike manner.

Complainants have negated any inference that they were the cause of the problems with the cabinets. The testimony of Angela Bender, Jocelyn Weddle, and Maggie Chacon was credible that they did not use chemicals in cleaning the cabinets. Further, the allegation of the lack of air conditioning causing harm to the cabinets was debunked by Complainants’ evidence of their APS usage during the summer months. (Complainants’ Exhibit No. 82). Also, the allegation of paint overspray on the cabinets was not supported by the evidence.

Further, the issues with the cabinets were not caused by ordinary wear and tear. The defects arose soon after installation was completed in the summer of 2021. Jim Sexton testified he saw and reported the problems to Complainants in August 2021 when he was covering the cabinets to paint, and Jocelyn Weddle testified she saw and reported the issues to Complainants in September 2021 when she was cleaning the cabinets. Indeed, Dylan Thomas testified the problems with the cabinets were not due to ordinary wear and tear.

Justin Murdock did not dispute that there was a problem with the cabinets. However, he testified that the cause of the problem was undoubtedly chemical use on the cabinets, even though he stated he could not determine more without chemical analysis. Also, Dylan Thomas testified that he found clear evidence of chemical residue, but could not get a sample to evaluate in his shop. Based on their testimony, it appears chemical use on the cabinet could have been confirmed by chemical analysis. However, there was no evidence presented that Respondent requested a sample to perform such a chemical analysis. Perhaps Complainants might not have provided such a sample for testing after they filed their Complaint, even though there was some evidence that Complainants gave Respondent some kitchen cabinet fronts in February 2023. However, nothing was presented to suggest they would have rejected a request for a sample for testing in 2022 before the Complaint was filed; indeed, the evidence reflected that Complainants welcomed any inspections by Respondent before this matter reached the Registrar stage. It is acknowledged that Respondent does not have the burden of proof with regard to the cause of the surface problems; however, if Respondent’s opinion is to be given any weight by this Tribunal, that chemicals were “undoubtedly” the cause, an unsubstantiated claim is insufficient, particularly when it apparently could have been substantiated.

Lastly, Respondent argued that that the Citation should be dismissed – or should not have been issued in the first place – because there may have been some damage to the cabinets caused by other trades. Respondent cited to A.R.S. 32-1155(D)(2) which states in part that the Registrar may not issue a citation for failure to perform work in a professional and workmanlike manner if contractor's work has been subject to neglect, modification or abnormal use. By implication, because a Citation was in fact issued, the Investigator apparently found no neglect, modification, or abnormal use. Angela Bender testified there may have been some unspecified damage caused by other trades, but also testified that the Directive items listed do not contain any such damage and instead only contained Respondent’s craftsmanship issues. The Tribunal agrees. Other than the Directive item with regard to the hood dent, all of the other cabinet surface Directive items relate to paint and finishing, not, for example, impact damage caused by a trade carelessly swinging their tool belt around. Further, the location of some of the defects, high above the countertops and on the interior recessed panel of the door face, is inconsistent with damage caused by impact.

Complaint Item Nos. 15, 18: Complainants have met their burden of proof in establishing that Respondent failed to perform work in a professional and workmanlike manner in violation of Arizona Administrative Code Rule 4-9-108(a) with regard to these Directive items. The Tribunal is persuaded that Respondent agreed to repair these items whether they were caused by Respondent or not. Respondent argued that these were unenforceable promises, gratuitous promises that lacked consideration. This may very well be true in a contractual setting, but this promise was instead made to the Registrar during the course of an investigation of Respondent. There was no authority presented for the proposition that representations made by a contractor to the Registrar cannot be relied upon by the Registrar, or that failure of a contractor to fulfill a promise to the Registrar cannot be considered in a disciplinary proceeding against the contractor.

Complaint Item No. 22: Complainants have failed to meet their burden of proof and have not established that Respondent failed to perform work in a professional and workmanlike manner in violation of Arizona Administrative Code Rule 4-9-108(a) with regard to this Directive item.

As a threshold matter, it is noted that with respect to this Directive item, Respondent was not cited for a violation of A.R.S. 32-1154(a)(2) (material departure from or disregard of plans or specifications) but rather was cited for a violation of A.R.S. 32-1154(a)(3) (violation of the Registrar rule to perform all work in a professional and workmanlike manner). Even though the Investigator testified as to a deviation from plans and specifications, he did not explain the reason for not citing a violation of A.R.S. 32-1154(a)(2), nor was he asked by the parties at the hearing to address this discrepancy.

Complainants argued that the Citation discrepancy is of no consequence. They contended that a departure from plans or specifications also constituted a failure to perform work in a professional and workmanlike manner. Conversely, Respondent contended that the Legislature considered such a departure to be distinct from poor workmanship. While there appears to be no Arizona law directly on point regarding this issue, the Tribunal agrees with Respondent that A.R.S. 32-1154(a)(2) and A.R.S. 32-1154(a)(3) are two distinct statutes intended to prohibit two different types of conduct. Were a specifications departure to also constitute a violation of A.R.S. 32-1154(a)(3), it would render A.R.S. 32-1154(a)(2) superfluous, which this Tribunal is not inclined to do.

Having decided that a specifications departure in itself does not automatically constitute a violation of A.R.S. 32-1154(a)(3), the question remains whether the range hood cabinet installation, irrespective of the precise specifications, constituted a failure to perform work in a professional and workmanlike manner. Complainants argued that the depth and height of the hood created a hazard and Angela Bender testified that several individuals were injured as a result. However, the Tribunal does not find such unsubstantiated testimony to be sufficient to meet Complainants’ burden of proof in this regard. No witnesses testified that they were injured due to the proximity of the hood; indeed, Gregory Bender was present during every hearing session and could have testified to such if in fact he was one of those individuals. He did not, and the photograph of him standing in front of the hood, without more context, had very little probative value. (Complainants’ Exhibit No. 79, pg. 102).

In that Respondent was not cited for a violation of A.R.S. 32-1154(a)(2), the Tribunal need not make a finding regarding an alleged departure from specifications with regard to the hood cabinet. However, because the parties presented a great deal of testimony and argument regarding the hood cabinet and the various specification drawings of the hood cabinet, the Tribunal will nevertheless briefly comment on some of the evidence relating to this issue.

First, it was not entirely clear to the Tribunal whether Respondent met the specifications for the hood cabinet. The parties not only disagreed with each other on what the specifications were, they also disagreed on how measurements were to be taken, namely, where the starting and end points of the measurement were to be.

The Tribunal was persuaded that Angela Bender initially desired a hood cabinet height that was 36” above the stove top and a depth of 22” from the wall and that she signed the hood drawing page reflecting this depth when she said she signed it. However, Ms. Bender also signed a drawing depicting a 34” height and 24” depth.

It does appear that Respondent met the 34” specification (with no material deviation), depending on the manner of measuring. It does not appear that Respondent met the 24” specification, and certainly not the 22” specification. Respondent seemed to attribute this deviation to Ms. Bender changing the hood liner to be inserted in the hood cabinet. However, the evidence suggested that Deandra Robinson was aware in November 2020 (prior to the cabinets being built) that Ms. Bender had changed her hood insert selection that was now to be 18” deep. (Complainants’ Exhibit 59, pgs. 10, 30). Unfortunately, without the testimony of Ms. Robinson, what happened after that in terms of the hood specifications in the final shop drawings is unclear. However, as stated above, the Tribunal need not resolve these issues or open questions.

7. A.R.S. § 32-1154(A)(22). Complainants have met their burden of proof in establishing that Respondent failed to perform corrective action without a valid justification in violation of A.R.S. § 32-1154(A)(22). While Respondent did perform some corrective work, there was no dispute that Respondent did not complete all of the corrective work in the Directive. Respondent argued that it did not complete all the corrective work because it contended it was not responsible for some of the Directive items. Having found that Respondent was in fact responsible for some of the Directive items it chose not to correct, the Tribunal does not consider such an argument to constitute a valid justification for failing to do so.

8. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3) (with regard to Complaint Item Nos. 1, 3, 5, 7, 8, 11-15, and 18) and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, Burdette Cabinet Co., Inc.’s, LLC’s, License Number 106325 is suspended for two (2) days.

IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order.

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 the 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, December 19, 2023.

/s/ Roger A. Geddes

Administrative Law Judge

Transmitted electronically to:

Tom Cole

Director - Registrar of Contractors

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Burdette Cabinet Co., Inc.

[email redacted]

Gregory Bender

[email redacted]

By: OAH Staff