ALJDEC - Licensing - decision is HERE

2024A-00070-CHC-ROC · Registrar of Contractors · 2024-12-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Interior Motives Inc.,

COMPLAINANT,

DW Acquisition Inc.

dba Door Works,

License No. ROC 268466,

RESPONDENT.

No. 2024A-00070-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 4, 2024.

APPEARANCES: For Complainant, attorney Karl Pearson with Anita Lang. For Respondent, attorney Michael D. Curran with Owner Denis Fallon. Robert Di Alto, ROC Investigator.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing Packet (Packet); Complainant Exhibits 1 through 15. Respondent Exhibits 1 through 9.

_____________________________________________________________________

FINDINGS OF FACT

DW Acquisition Inc. dba Door Works is the holder of CR-60 Finish Carpentry Contractor License No. 268466 issued by the Arizona Registrar of Contractors (Registrar or ROC) on November 23, 2011.

Complainant Anita Lang is the owner of IMI Design, a luxury interior designer. With regard to a major remodeling project, Ms. Lang began communicating with Respondent in September of 2021 regarding a door and related hardware package for the remodel. Over time, the proposal for the needed doors and hardware would be modified; detailed drawings were produced at various times regarding the modifications. The total estimate/cost for the doors, hardware and labor at the remodel was $69,353.60.

The two solid wood doors at issue in the instant matter were planned for installation in the bar area within the main living room. These two doors, when opened, expose a cabinet and storage area for the bar including drawers and a refrigerator. The interior of the doors themselves contain shelves of various sizes which were designed for the purpose of storing liquor, wine, wine glasses and bar supplies.

The cost for the two doors at issue in the instant matter was $6,826.00. These two doors were produced in approximately June of 2023.

The evidence is somewhat unclear whether these doors were installed and then uninstalled for the purpose of construction or adjustment of the interior cabinets for the bar, or whether the doors were installed for the first time after the interior of the bar was complete. However, there is no dispute that the interior cabinetry and refrigerator placement required some adjustment to the plans and, subsequently, the doors were uninstalled to make some adjustments to the doors, hinges, and/or the jamb.

On or about January 3, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to these two bar doors. Complainant noted that the doors were sagging, did not close properly, possibly had been installed with incorrect hinges, and there was a crack in the jamb. The Complainant indicated that work on the project was last performed on October 1, 2023.

The Registrar’s Investigator Robert Di Alto scheduled a jobsite inspection, which he conducted on January 31, 2024. After the jobsite inspection, Investigator Di Alto issued a written directive (Directive) to Respondent regarding the requirement to take appropriate corrective action on several items. On March 19, 2024, the final Amended Directive provided the following statements:

After investigation, the Registrar has verified 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 April 7, 2024.

RESTRICTIONS

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

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Complaint Item: 1-Bar doors that are sagging,

Investigator’s Observation: Verified. I observed excessive sagging at both bar doors. The left and right doors bind on the flooring and have to be lifted up in order to close and open. Doors should be installed plumb and square in their frame, and should operate smoothly without binding on any door jamb, head jamb and should have proper flooring clearance. The Respondent shall correct by the appropriate means.

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

Complaint Item: 2-Have crack in jamb,

Investigator’s Observation: Verified. I observed a rather large vertical crack in the R/H door jamb that was approximately 6” to 8” in length and just above the top hinge. The Complainant provided email evidence that demonstrates that the Respondent was notified of this concern in July and August of 2023. The Respondent also emailed the Complainant on October 16, 2023 stating, “The crack at the jamb had been puttied

and filled and is no longer an issue.” The Respondent shall correct by the appropriate means.

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

Complaint Item: 3-Improperly installed possibly incorrect hinges,

Investigator’s Observation: Verified. I reviewed hinge manufacturer’s hinge

location recommendations and it appears that the hinges are not installed as per the recommended locations, or per the manufacturer’s recommended locations to increase the load capacity of the hinges. The Respondent shall correct by the appropriate means.

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

Complaint Item: 4-And do not close properly.

Investigator’s Observation: Verified. This complaint item is related to complaint item #1. I observed the operation of both doors and they do not appear to function as intended. They do not swing smoothly and freely, and require extensive effort to operate. The reveals around the door perimeter are not consistent. The Respondent shall correct by the appropriate means.

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

Investigator Di Alto scheduled a compliance jobsite inspection. At the May 24, 2024 compliance inspection, Investigator Di Alto found that Complaint Item 2, the crack in the door jamb, had been corrected and appeared to be repaired.

At the compliance jobsite inspection, Investigator Di Alto found that Complaint Items 1, 3 and 4 remained in need of correction. Regarding those remaining compliance items, Investigator Di Alto noted as follows:

Compliance Item: 1 - 1-Bar doors that are sagging,

Investigator’s Observation: Verified. I observed excessive sagging at both bar doors. The left door binds on the flooring and the right door binds on the flooring also, and had to be unloaded and lifted in order to be closed. Doors should be installed plumb and square in their frame, and should operate smoothly without binding on any door jamb, head jamb and should have proper flooring clearance. The Respondent shall correct by the appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Findings: Vertical reveals are uneven at the center of the doors when in the closed position, with the bottom being approximately 3/8” to 1⁄2” and approximately 1/8” at the top. Additionally the right door reveal is uneven, and is tight at the lower part of the door and larger at the top of the door.

NOT CORRECTED

Compliance Item: 3 - 3-Improperly installed possibly incorrect hinges,

Investigator’s Observation: Verified. I reviewed hinge manufacturer’s hinge location recommendations and it appears that the hinges are not installed as per the recommended locations, or per the manufacturer’s recommended locations to increase the load capacity of the

hinges. The Respondent shall correct by the appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Findings: I observed that an additional hinge was added at the upper area of each door. The addition of the hinge does not appear to address the door sagging issue.

NOT CORRECTED

Compliance Item: 4 - 4-And do not close properly.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Findings: At the time of this compliance inspection the doors do not close properly.

NOT CORRECTED

On May 23, 2024, the Registrar issued a Citation against Respondent, charging possible violations: Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(B); and Ariz. Rev. Stat. § 32-1154(A)(22).

On June 7, 2024, Respondent filed its Answer to the Citation. Respondent indicated that the weight of the items on the inside of the doors caused the doors to sag, which continued after Respondent had installed heavier (and additional) hinges to hold the weight of the doors securely against/on the jamb and after Respondent took other steps to accommodate the additional weight. Respondent noted that one piece of flagstone, at which the door would be impeded, was 5/16” higher than the pieces; Respondent’s suggestion to remove that stone piece was rejected by Complainant. Respondent’s offer to remove the door for adjusting the door (i.e., planning the bottom) was rejected by Complainant. Respondent’s offer to remove the doors and refund the money was rejected by Complainant.

The matter was not completely resolved by the parties prior to the administrative hearing.

At hearing, Investigator Di Alto testified with regard to his directive findings, referring to his compliance job site photographs. Investigator Di Alto specifically noted that the doors, when closed, are not flush, in that the doors are tight at the top but are 3/8” apart at the bottom. Investigator Di Alto noted that the door on the left had been okay but the door on the right had been dragging; the jamb on the right door was the jamb that had been repaired. Investigator Di Alto testified the door on the right can now be opened to the full 180 degrees. Investigator Di Alto further noted that one more hinges had been replaced, but he could see gaps behind the middle hinge. Investigator Di Alto opined that, in a custom door situation, he would not expect to see tightness at the top and the doors’ reveal issue appearing down the entire length of the door, and that the necessary corrective action is to make the doors consistent.

At hearing, Complainant argued that the design detail for the doors included the shelves and demonstrated that there would be items in the shelves. Complainant argued that the doors began to sag a few days after their installation and that the doors were catching on the floor. Complainant argued that, at first, it appeared to be a “hinge” issue and that the parties tried to have the door issues corrected with new and better hinges. Complainant argued that it now appears to be a jamb issue, which was not replaced, and the issue is not caused by the floor tile. Complainant argues that the jamb needs to be replaced; Complainant does not recall replacement of jamb being proposed as a possible solution.

Complainant’s position is that calculating the installation of the doors with the “weight” that might be placed thereon was not Complainant’s responsibility. Complainant argued that planing the bottom of the one door will not resolve the issue of the reveal/space and would interfere with the door hardware/handle.

Respondent noted that it had designed the original doors and the original jamb but argued that due to the space changes necessary in the cabinetry, the two doors no longer could sit flush with the wall but had to hang on hinges 11⁄2 inches further out, causing the jamb to be modified to a smaller width to allow for the dishwasher and icemaker to fully open. Respondent could not recall any discussion about the number or weight of items that would be on the shelves. Respondent did see an email with estimated calculations of the doors and some items; however, Respondent argued that it was not its responsibility to anticipate the usage of the doors. Respondent determined at some point that the initially planned hinges were not adequate and Respondent took the doors and hinges off and reinstalled the doors with heavier and more hinges (4 on each door). Respondent argued that, after that reinstallation, the doors were correctly functioning.

Overall, Respondent argued that it had gone to great lengths at its own expense to make corrections and Complainant had not agreed to several options to try to remediate the issue. Respondent argued that the Complainant cannot tell Respondent what or how/how not to make the repairs.

Overall, Complainant argued that the doors should not sag and that the doors were sagging prior to any items being added to the shelves. Complainant agreed that Respondent had tried to fix the issue but hadnot yet tried to address or replace the jamb.

Administrative notice is taken of Respondent’s license records on December 31, 2024. Respondent’s licensure records reflects that Respondent’s license is active and that the instant matter is the only open complaint against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119.

In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code R2-19-119(A) and Ariz. Admin. Code Section 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).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.

9. Following the issuance of the Directive mandating correction of three workmanship items, Investigator Di Alto found that the three workmanship issues still existed at the time of the compliance inspection. At hearing, Investigator Di Alto testified that those workmanship issues had been uncorrected at the time of the compliance inspection.

10. Therefore, the Administrative Law Judge concludes that the Investigator-determined workmanship issues existed and, thus, Respondent was in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code R4-9-108(a), for failure to perform all work in a professional and workmanlike manner.

11. The Administrative Law Judge further concludes the hearing record demonstrated that Respondent had failed to comply with the Directive by the Directive deadline. Therefore, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar impose discipline on Respondent’s ROC License 286466 as follows:

a two business-day suspension on the effective date of the Registrar’s Order in this matter; and,

require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 may 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 Ariz. Rev. Stat. § 32-1101(A)(7), 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, December 31, 2024.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole

Registrar of Contractors

Robert Di Alto

[email redacted]

Karl Pearson Esq.

Pearson Law PLC

[email redacted]

Michael D. Curran

MAYNARD CRONIN ERICKSON CURRAN & REITER, P.L.C.

[email redacted]

By OAH Staff