ALJDEC - Licensing
2024A-00891-CHC-ROC · Registrar of Contractors · 2024-10-24
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Alexandra Kemp
COMPLAINANT,
v.
Phoenix Cabinets II LLC
License No. ROC 340940
RESPONDENT.
No. 2024A-00891-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 4, 2024
APPEARANCES: Complainant Alexandra Kemp appeared on behalf of herself (Complainant). Josephina Perez appeared on behalf of Respondent Phoenix Cabinets II LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Complainant and Respondent entered into a construction contract, wherein Respondent would install cabinets in Complainant’s home for the amount of $18,526.
2. Josephina Perez is Respondent’s owner.
3. Complainant paid Respondent $18,526, pursuant to the contract.
4. On or about March 2, 2023, Respondent started work.
5. On or about May 9, 2023, Respondent stopped work.
6. The Arizona Registrar of Contractors (Registrar) received a complaint from Complainant alleging poor workmanship on the part of Respondent. The complaint included the allegation, “Seam marks on pantry around fridge were spray painted and sanded and doesn’t match the rest of kitchen.”
7. The Registrar assigned one of its investigators, Patricia Schuette (Investigator Schuette), to investigate the complaint.
8. On February 26, 2024, Investigator Schuette conducted an initial job-site inspection.
9. On March 18, 2024, the Registrar issued a Directive requiring that Respondent correct a total of 10 complaint items, by appropriate means, no later than 5:00 p.m. on April 5, 2024. One of the 10 items was Compliance Item 2. The Directive provided, in relevant part, as follows:
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Compliance Item: 2- Seam marks on pantry around fridge were spray painted and sanded and doesn’t match the rest of kitchen. Investigator’s Observation: Verified. The upper cabinet lower left corner does not appear to be flush with the trim above the fridge. There is also a piece of filler in the upper bank cabinets that is not flush and unsightly. Respondent to correct within appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.
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10. Respondent made several requests to extend the deadline for compliance under the Directive. The last extension was June 11, 2024.
11. Investigator Schuette completed two compliance job-site inspections during the investigation of the complaint. At the final job-site inspection on July 11, 2024, Investigator Schuette found that Respondent corrected all of the items listed in the Directive, except Compliance Item #2. Investigator Schuette’s July 11, 2024 compliance job-site inspection notes provided, in relevant part, as follows:
.............................................
Compliance Item: 2- Seam marks on pantry around fridge were spray painted and sanded and doesn’t match the rest of kitchen.
Investigator’s Observation: Verified. The upper cabinet lower left corner does not appear to be flush with the trim above the fridge. There is also a piece of filler in the upper bank cabinets that is not flush and unsightly. Respondent to correct within appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-108, Poor work not performed in accordance with professional industry standards.
Compliance Findings: The filler/face frame was replaced however, the color is off and there is something on the surface of one of the pieces that is likely a caulking. There is also lippage between the two upper cabinets that is unsightly. Lastly, there are additional screw holes in the face frame and in the box where it is secured to the side of the adjacent cabinets that is not filled and has rough edges.
12. On July 23, 2024, the Registrar issued a Citation against Respondent’s license alleging that Respondent violated Ariz. Rev. Stat. §§ 32-1154(A)(3) and (22); Ariz. Admin. Code § R4-9-108(A).
13. Ms. Perez filed a timely answer to the Citation on behalf of Respondent.
14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
15. At hearing, Complainant testified on behalf of herself. Ms. Perez testified on behalf of Respondent. Investigator Schuette testified consistently with her written compliance findings.
16. Complainant explained that Respondent performed poor work in connection with the cabinet installation project. Ms. Perez stated that it was difficult to install a smooth face frame because the wall behind the refrigerator had a pre-existing bow. However, Respondent did not obtain a written waiver signed by Complainant that the frame would not be smooth due to the condition of the wall.
17. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on October 24, 2024. Such prior License record reflects that Respondent’s License No. ROC 340940 was issued on September 27, 2022, and is currently active. Such prior License record shows that there no other open complaints against Respondent’s license. Respondent’s lack of disciplinary history is considered a mitigating factor in the imposition of discipline and penalties.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section
41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 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).
3. The Administrative Law Judge may consider Registrar’s administrative
record. See Ariz. Admin. Code § R4-9-118.
4. The preponderance of the evidence shows that Respondent’s work in
connection with Compliance Item #2 failed to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely A.A.C. R4-9-108(A). If Respondent could not install a smooth face frame due to the condition of Complainant’s wall, it should not have undertaken the job without a written waiver signed by Complainant. Respondent did not obtain such a warranty disclaimer in this case.
5. The preponderance of the evidence shows that Respondent failed to correct Compliance Item #2 in the Registrar’s Directive, without valid justification, which is a violation of Ariz. Rev. Stat. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Phoenix Cabinets II LLC’s License No. ROC 340940 for one day. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 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, October 24, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Registrar of Contractors
Alexandra Kemp
[email redacted]
By: OAH Staff
Phoenix Cabinets II LLC
[email redacted]