ALJDEC

99F-2610-ROC · Registrar of Contractors · 1999-09-15

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to notice, a formal hearing was held in this case on September 15, 1999, in Phoenix, Arizona, before Neal H. Jordan, Administrative Law Judge of the Office of Administrative Hearings. APPEARANCES For Complainant: David D. Nielsen, President For Respondent: Bruce Triolo, Qualifying Party

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: Complainant was the general contractor on the construction of a new home for Richard E. Covert (“Covert”). Complainant and Covert selected Respondent as the subcontractor for the fabrication and installation of custom cabinets for the entire home. Since the date the cabinets were installed, Complainant and Covert have complained that certain deficiencies are evident in the cabinets and, although Respondent has made efforts at repairs, the deficiencies are ever present. The weight and sufficiency of the evidence establishes that the cabinets have not measured up to the expectations of Covert. While such a failure does not necessitate the replacement of the cabinets, in whole or in part, it does establish a level of disappointment that must be addressed by Respondent in a full and concerted effort to make complete and acceptable repairs. Such repairs include: correcting the wrong color of caulking on the right side of the refrigerator; properly correcting or replacing the edge tape (wood veneer) at the left side of the built-in oven; repairing or replacing the formica toe kicks that have fallen off the bottom cabinets; correct the melamine appearance on the bottom panel near the desk to match surrounding wood panels in a natural material; correct or repair missing edge tape areas; repair chipped edges on melamine cabinets; correct all edge tapes so as to match edges of cabinets or doors and for consistent stain match; correct or repair cabinet abutting cabinet surfaces so they are flush with each other; and, correct unfinished interior corner of bookshelf. As a result of the complaint being filed in this matter, an on-site inspection was conducted by an assigned inspector for the Registrar of Contractors, which led to the issuance of a corrective work order letter (“CWO”) being sent to Respondent requiring that certain corrective or remedial work to be performed within a stated period of time. The CWO listed nine areas in need of attention and all but two have been properly attended to by Respondent. All other enumerated items of the complaint, presented at the instant hearing, were either corrected, not adequately shown to be workmanship deficiencies, or matters upon which Complainant failed to sustain the requisite burden of proof.

CONCLUSIONS OF LAW The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). The Complainant has brought this complaint and accordingly bears the burden of proving by a preponderance of the evidence that the allegations contained therein are true. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985), (the standard of proof is that of the “preponderance of evidence.”) The Citation and Complaint charges Respondent with the violation of A.R.S. §32-1154A (7), (23), and (3), in this latter case, namely, Rule R4-9-108. By a preponderance of all the evidence, Complainant has established that Respondent has violated the foregoing provisions of the Arizona Revised Statutes, as cited, by failing to properly construct and install the cabinets contracted for in a good and workmanlike manner and by not fully and completely attending to the Corrective Work Order issued by the Registrar of Contractors.

RECOMMENDED ORDER In view of the foregoing, it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-30 license of Respondent shall be suspended until the Registrar of Contractors receives credible written proof that Respondent has accomplished appropriate and effective remedial work on the items set forth in Findings of Fact 3, above. It is further recommended that if Respondent accomplishes the above described corrective work on or before the effective date of the Order entered in this matter, then the above license suspension shall not take place.

DONE AND ENTERED this day, September 15, 1999

______________________________________ Neal H. Jordan Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Registrar of Contractors Mr. Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

-----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826