ALJDEC - Licensing

2024A-00297-CHC-ROC · Registrar of Contractors · 2024-09-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Debra Mary Schaefer,

COMPLAINANT,

v.

Phillips Woodworking, LTD.

License No. ROC 330247,

RESPONDENT.

No. 2024A-00297-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: Convened and concluded on August 27, 2024. Record held open until August 30, 2024.

APPEARANCES:

For Complainant: Debra Mary Schaefer.

For Respondent: David Phillips.

For the Registrar of Contractors: John Smith.

ADMINISTRATIVE LAW JUDGE: Samuel Fox

EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Hearing Packet submitted by the Registrar of Contractors. Complainant’s Exhibit 1. Registrar’s Exhibits 1 and 2.

_____________________________________________________________________

FINDINGS OF FACT

Phillips Woodworking, LTD. (Respondent) was the holder of License No. 330247 issued by the Arizona Registrar of Contractors (Registrar) on August 23, 2020.

On or about May 10, 2023, Debra Mary Schaefer (Complainant) entered into a contract with Respondent, operating under the name “N Hance of NE Tucson,” for, among other things, a basic kitchen renewal, and adding linen and bathroom cabinetry.

On or about January 8, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming Respondent did not finish the job, left holes in cabinet, damaged wood, and other issues.

On January 22, 2024, the Registrar issued two Warning Letters to Respondent, informing Respondent (1) that its contracts did not contain the required elements and (2) that it must operate under the name that was listed on its license.

The Registrar assigned the complaint to Investigator John Smith, who issued a Jobsite Inspection Notice on February 15, 2024, scheduling the inspection for February 28, 2024.

Investigator Smith conducted the jobsite inspection on February 28, 2024, and Respondent chose not to attend the inspection. Following the inspection, Investigator Smith issued a Written Directive From the Registrar to Respondent on February 29, 2024, that provided as follows:

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

Complaint Item 1: “Did not finish job – still a trim missing - Plus”

Investigator’s Observations: Verified.

There is a piece of scribe molding removed/missing from the right side of the sink cabinet in the bar area.

Contrary to the respondent’s response, there is no indication this piece of trim was removed during the countertop installation.

There is new stain/finish to the edge of the face frame indicating this piece of scribe molding was removed during the refinishing process. . . .

Complaint Item 2: “Master bathroom handles askew on linen closet”

Investigator’s Observations: Verified.

Linen cabinet door handles are not installed at matching locations.

One handle is approximately 3/8 inch higher than the handle of the adjacent door. . . .

Complaint Item 3: “Damage wood installed on linen closet”

Investigator’s Observations: Verified.

There are distinct “splatter” stains on the side of the linen cabinet.

Based on the “splatter” pattern, these stains were present prior to installation. . . .

Complaint Item 4a: “Kitchen, Laundry rm, bar cabinets: - David suggested the larger drawer pulls is what is popular now and said he would put a dowel in the screw hole, sand it, then stain it, and we wouldn’t see it – but we do!!”

Investigator’s Observations: Verified.

The respondent’s work included refinishing the cabinets. Repair of any pre-existing holes, or incorrectly drilled holes, is considered to be part of surface preparation.

Cabinet doors and drawers in kitchen, laundry room, and bar area, have unfilled and/or poorly filled holes.

All holes are approximately 3/16 to 1/4 inch diameter.

Some holes are filled with dowels with poorly matched stain/finish.

Some holes are filled with just poorly matched putty.

Some holes are just unfilled. . . .

Complaint Item 6: “See nails on kitchen island wood install”

Investigator’s Observations: Verified.

There are several unfilled nail holes. . . .

Complaint Item 7: “Guest bathroom vanity panel above door and door are not lined up – off – askew.”

Investigator’s Observations: Verified.

The guest bathroom vanity has a total of five panels; one door, three drawers, and one drawer front directly below the vanity top.

The faces of those five panels are not flush / not in the same plane.

The hinge side of the door protrudes 5/16 inch past the face of the upper drawer front.

Drawers at the left are flush with the face of the upper drawer front.

At least one contributing factor is the lack of bumpers on the door and drawers. . . .

ADDITIONAL VIOLATIONS

In addition to the allegations in the complaint, the following violations were verified:

Elements of a Contract

Investigator’s Observations: The respondent’s contract is missing the following information:

• The correct name of the contractor

o The respondent’s documents are in the name of “N Hance of NE Tucson”.

o The respondent’s registered business name is “Phillips Woodworking, LTD”.

• The date the parties entered into the contract

o Estimates are dated; however, without signatures, it cannot be known what date the parties entered into the contract.

• An estimated date of completion

• A payment schedule

• Information about the customer’s right to file a complaint with the registrar

• Contact information for the registrar

• A signature of the property owner

• A signature of the contractor. . . .

REQUIRED CORRECTIVE ACTION: The respondent is to submit a copy of a current contract form that complies with A.R.S. § 32-1158

Wrong name

Investigator’s Observations:

The respondent’s documents are in the name of “N Hance of NE Tucson”.

The respondent’s registered business name is “Phillips Woodworking, LTD”.

Governing Rule: A.R.S. § 32-1154(A)(14): Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth on the license.

REQUIRED CORRECTIVE ACTION: The respondent is to submit documented compliance.

The Written Directive required Respondent to notify Investigator Smith of Respondent’s compliance with the directive prior to 5:00 p.m. on March 28, 2024.

On April 1, 2024, Investigator Smith issued a Compliance Inspection Notice, setting the inspection for April 11, 2024. During the inspection, Investigator Smith found that Compliance Items 4a and 7 were not completed to workmanship standards, although some work had been performed on them. Respondent chose not to attend.

On April 16, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), specifically R4-9-108(A); A.R.S. § 32-1154(A)(12), specifically A.R.S. § 32-1158; A.R.S. § 32-1154(A)(14); and A.R.S. § 32-1154(A)(22).

Respondent submitted an Answer to the Citation on April 30, 2024. Respondent’s Answer stated its disagreement that there were any workmanship issues. Respondent blamed the project coordinator for the issues prior to her quitting, then blamed the project coordinator’s quitting for issues after she quit. Respondent also explained that it completed a punch list.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On May 24, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing at July 5, 2024.

On or about May 28, 2024, Complainant requested that the hearing be continued due to unavailability.

On or about May 30, 2024, the parties were notified the hearing was continued to August 27, 2024. The order granting the continuance from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on August 27, 2024.

Investigator Smith testified to his findings. He also testified that the name used on Respondent’s contract was not registered with the Registrar and Respondent had not yet provided an updated contract.

Complainant and Respondent testified that they had a difficult working relationship, especially when they worked together directly, and that communication about the project did not go well. Complainant and Respondent did not see eye-to-eye about what the issues were.

Respondent testified that he thought the cabinets would be painted. If they had been painted, then the cabinets subject to Compliance Item 4a would look great. Complainant testified that the plan was always to stain the cabinets.

The contract provides the following description:

Basic kitchen renewal: work includes cleaning the outside of all doors, side panels of the cabinet boxes, face frames, brushing color and sanding damaged areas, adding a coat of color to all surfaces followed by a coat of clear High-build. We can also buff the cabinets if desired to reduce sheen level.

The Parties did not provide evidence from the project manager about her discussions with Complainant or Respondent.

Administrative notice was taken of Respondent’s prior License record on September 17, 2024. According to that record, Respondent’s License No. 330247 was active. There was one open complaint and one resolved complaint. The DBA “N Hance of NE Tucson” was not yet registered with the Registrar.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. Respondent bears the burden of proof to establish an affirmative defense by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

When a contract is ambiguous, the ambiguity is interpreted against the drafter. The contract provides for “color,” which could be paint or stain.

The preponderance of the evidence established that Respondent failed to perform all work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), specifically regarding Compliance Items 4a and 7.

The preponderance of the evidence failed to establish that the parties had actually agreed to paint the cabinets, not stain them.

The preponderance of the evidence established that Respondent failed to comply with this chapter in violation of A.R.S. § 32-1154(A)(12), namely the contract requirements in A.R.S. § 32-1158.

The preponderance of the evidence established that Respondent operated under a name other than the name on the contractor’s license in violation of A.R.S. § 32-1154(A)(14).

The evidence established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22), specifically regarding Compliance Items 4a and 7.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend for one day Respondent’s License No. 330247.

It is further recommended that within thirty days of the effective date of the Order Respondent shall provide an amended contract to the Registrar which establishes compliance with the requirements in A.R.S. § 32-1158. If Respondent fails to comply, Respondent’s license shall be suspended until it provides a compliant contract.

It is further recommended that within thirty days of the effective date of the Order Respondent shall register the name “N Hance of NE Tucson” with the Registrar or inform the Registrar it has ceased using the name “N Hance of NE Tucson.” If Respondent fails to comply, Respondent’s license shall be suspended until it provides such confirmation that it is compliant with A.R.S. § 32-1154(A)(14).

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, September 19, 2024.

/s/ Samuel Fox

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Debra Mary Schaefer

[email redacted]

Phillips Woodworking, LTD.

[email redacted]

John Smith

[email redacted]

By: OAH Staff