ALJDEC

99F-M1479-ROC · Registrar of Contractors · 2000-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 1, 2000 APPEARANCES: Robert Baxley appeared on behalf of Complainants. Respondent appeared through its owner and qualifying party, Alexander Chacko. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________ The issue presented by this matter is whether Respondent Alexander Chacko, doing business as Home Aid Remodelling, is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Respondent Alexander Chacko, dba Home Aid Remodelling (“Home Aid”), is the former holder of a Class C-30 license (No. 137730) issued by the Registrar of Contractors (“ROC”). Alexander Chacko was Home Aid’s qualifying party.[1] On March 6, 1999, Home Aid entered into a written contract with Complainants Robert and Ruth Baxley to install new cabinetry (kitchen, hall, two baths), countertops, appliances and vanities at the Baxleys’ residence in Mesa, Arizona. Home Aid completed the work towards the end of April, 1999. On June 8, 1999, the Baxleys filed a complaint against Home Aid with the ROC. The Baxleys alleged “end product not finished as assured. Workmanship was poor and unacceptable.” The Baxleys attached to their complaint a three page document detailing the alleged workmanship deficiencies. ROC Inspector Mike MacDonald investigated the Baxleys’ complaint. On August 30, 1999, Inspector MacDonald conducted a jobsite inspection at the Baxleys’ residence. Mr. and Mrs. Baxley were present for that inspection, but Mr. Chacko was not. The evidence at hearing established that the ROC had internally scheduled the inspection for August at 2:30 p.m. but, due to a typographical error in the notice of inspection, erroneously informed the parties that the inspection would take place on August 30. Thus, when Mr. Chacko arrived at the Baxleys’ residence on August 30, Inspector MacDonald was not there. Mr. Chacko testified that he waited for approximately one hour, and then left, after which time he called the ROC office and left a message asking why the inspection had not occurred. In the meantime, the Baxleys were able to reach Inspector MacDonald who, after being apprised of the mistake, went to the Baxleys’ home to conduct the inspection. The Administrative Law Judge recites the foregoing only to ensure the completeness of this record. Mr. Chacko did not claim to have been prejudiced as a result of his not having participated in the August 30 inspection, and on the overall facts of this case the Administrative Law Judge finds no such prejudice to have resulted. On August 31, 1999, Inspector MacDonald issued a Corrective Work Order (“CWO”) under which the ROC gave Home Aid 15 days to correct numerous deficiencies in the work at the Baxleys’ residence. Home Aid failed to comply with the CWO. By letter to the ROC dated September 16, 1999, the Baxleys requested an administrative hearing. On or about September 20, 1999, Mr. Chacko sent a letter to Inspector MacDonald advising that Mr. Chacko had “subcontracted with Mike Conwell to do all of the necessary repairs [at the Baxleys’ residence].” This arrangement was necessitated by the fact that Home Aid, not holding a license, was precluded from performing any of the corrective work itself. However, as further described in Finding of Fact No. 10, below, it appears Mr. Conwell could not make any of the repairs because he was not a licensed contractor, and no such repairs were in fact made. On October 14, 1999, the ROC issued a Citation and Complaint against Home Aid, charging Home Aid with violating A.R.S. § 32-1154(A)(7) (wrongful act resulting in substantial injury), (A)(23) (failure to take appropriate corrective action), and (A)(3) (violation of any rule adopted by the ROC, in this case, A.A.C. Rule R4-9-108 covering workmanship standards) On or about October 27, 1999 (the ROC date stamp on the document is difficult to read), Home Aid filed an answer to the Citation and Complaint. The answer (signed by Mr. Chacko) states, in part: “I did make an effort to send a person to fix any problems but since he was unlicensed was prevented from fixing minor problems. I still want to make any corrections if permitted to do so.” On January 27, 2000, Inspector MacDonald conducted a pre-hearing inspection at the Baxleys’ residence. The Baxleys were present for this inspection, but Mr. Chacko was not. Mr. Chacko claimed he could not take the time off from work to attend the inspection. Both Mr. Baxley and Mr. Chacko testified at the hearing. Inspector MacDonald also gave testimony. The parties presented a number of exhibits, the most telling of which is a series of 52 photographs offered by Mr. Baxley. [Exhibit 3(1)-(52)] The photographic evidence is compelling, and demonstrates the following deficiencies: First, the cabinetry itself is substandard. There are plainly observable color variations between pieces (see, e.g., Photo Nos. 1, 12, 16), and in one instance Home Aid used a large panel piece that is unsightly and which does not match the adjacent cabinetry (see Photo No. 29). Second, Home Aid placed unsightly horizontal spacers over the bottom cabinetry to elevate the countertops (see, e.g., Photo Nos. 1, 3, 4, 6, 22). Third, Home Aid used unnecessary and unsightly vertical spacers (see, e.g., Photo Nos. 5, 6, 12-14). Fourth, the trim is poorly matched and/or installed (see, e.g., Photo Nos. 17-19, 25, 26, 35, 36, 38, 39). Fifth, there are gaps between joined cabinets (see, e.g., Photo Nos. 27, 28). Sixth, the kick plates do not align with the flooring (see, e.g., Photo Nos. 2, 9, 20, 31, 34). Finally, there is generally poor workmanship in the installation (poor caulking, screws not countersunk, etc.) (see, e.g., Photo Nos. 6-8, 11, 14, 18, 19, 21, 22, 32). Inspector MacDonald testified that the photographs admitted into evidence as Exhibit 3 fairly represent what he viewed at the January 27, 2000 pre-hearing inspection. Home Aid’s workmanship was also deficient with respect to the installation of the Baxleys’ countertops, appliances and vanities. Regarding the countertops, the evidence was that the seams were uneven (see, e.g., Photo No. 52), that the splash guards were cut short and were not flush with the wall corners against which they abutted (see, e.g., Photo Nos. 45 and 50), that the caulking was excessive/uneven/ unsightly (see, e.g., Photo Nos. 45-51), and that the kitchen sink was installed out of square. Regarding the appliances, the evidence was that Home Aid failed to install the anti-tipping bracket for the range. Regarding the vanities, the evidence was that the caulking was excessive/uneven/unsightly, that one of the drawer faces in the master bath had split, and that Home Aid may have caused a restriction of the hall bath water pressure. The evidence was undisputed that while removing the kitchen sink to correct the sink being out of square, Home Aid broke the countertop. Mr. Chacko testified that he opted to give the Baxleys a $1,000.00 credit rather then attempt the repair. Mr. Chacko claimed at the hearing that this $1,000.00 credit was also intended to compensate the Baxleys for other deficiencies in the workmanship as well as a night light valued at $12.00 that Home Aid damaged during the construction. The Administrative Law Judge finds that the Baxleys’ acceptance of the $1,000.00 credit relieves Home Aid from any further responsibility only with regard to the kitchen countertops and the damaged night light. Home Aid did not present sufficient evidence to establish that the Baxleys agreed to accept the $1,000.00 credit as compensation for the workmanship deficiencies or that as a condition of accepting the $1,000.00 credit the Baxleys agreed to release Home Aid from further repair obligations. Both parties presented evidence regarding the Baxleys’ vinyl kitchen flooring, which was damaged during the installation of the kitchen cabinetry. Mr. Chacko testified that his practice is to protect the flooring on a jobsite by covering it with cardboard from the boxes in which the cabinets are shipped. Mr. Chacko stated that Mr. Baxley told him not to concern himself with covering the kitchen floor because the Baxleys were going to replace the flooring anyway. During the construction, a Home Aid worker tore a small portion of the kitchen flooring while pulling the range out from the wall (see Photo Nos. 9, 23). Mr. Baxley admitted that he initially told Mr. Chacko he was going to replace the flooring. Later, however, Mr. Baxley had a change of heart and decided to hold Home Aid responsible for the damage. One of the CWO’s requirements is that Home Aid replace all of the vinyl flooring in the kitchen and bathrooms, in part due to the damage but also because the flooring is short against the cabinets (i.e., there is a space between the flooring and the cabinet bottoms where the foundation is visible). The CWO also requires Home Aid to correct by appropriate means a space between the hall cabinet and the hall carpeting (see Photo No. 34). The Administrative Law Judge finds that although Home Aid is responsible for the proper alignment of the cabinetry with the flooring, it is not obligated to replace the flooring in its entirety. Such a requirement is overbroad in light of the fact that the alignment may be achieved without replacing the flooring, and further because, as a result of Mr. Baxley’s statement, Home Aid refrained from taking its ordinary precautions which may have prevented the damage to the flooring from occurring. Inspector MacDonald testified that in his opinion, Home Aid’s work was incomplete and that it did not meet minimum workmanship standards. The Administrative Law Judge finds Home Aid’s corrective work obligations to be as follows: u. Home Aid shall cause the hall and bath cabinetry to be brought within minimum industry standards. This obligation includes, but is not limited to, correcting all substandard caulking, replacing the split drawer face in the master bath, and correcting by appropriate means the space between the hall cabinet and the hall carpeting. The Administrative Law Judge finds that the kitchen cabinetry cannot be brought within workmanship standards through corrective work, and that the only appropriate remedy is to remove the kitchen cabinetry and replace it with new cabinetry of equal or better quality. v. Home Aid shall cause to be installed the anti-tipping bracket for the range. w. Home Aid shall cause the hall bath faucet to be checked for proper water flow and pressure, and cause appropriate repairs to be made if flow and pressure do not meet minimum limits in accordance with industry standards. The Administrative Law Judge finds that Home Aid has no further obligations regarding: y. The kitchen countertops. z. The damaged night light. CONCLUSIONS OF LAW In this proceeding, the Baxleys bear the burden to prove, by a preponderance of the evidence, that Home Aid is subject to discipline for violations of A.R.S. § 32-1154(A)(3), (A)(7) and (A)(23) as charged by the ROC in its October 14, 1999 Citation and Complaint. 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). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Home Aid with a violation of Arizona Administrative Code Rule R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with professional industry standards. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving written directive from the registrar.” In accordance with A.R.S. § 32-1154(D), the ROC may impose a civil penalty on Home Aid not to exceed $500.00 for each violation of A.R.S. § 32-1154(A)(23). A.R.S. § 32-1154(C) provides: “The expiration, cancellation, suspension or revocation of a license by operation of law or by decision and order of the registrar or a court of law or the voluntary surrender of a license by a licensee shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such licensee, or to render a decision suspending or revoking such a license, or denying the renewal or right of renewal of such license.” The Administrative Law Judge concludes, on the facts set forth above, that the Baxleys sustained their burden to prove that Home Aid violated A.R.S. § 32-1154(A)(3), (A)(7) and (A)(23) as charged by the ROC in its October 14, 1999 Citation and Complaint, and that Home Aid is therefore subject to discipline. The preponderance of the evidence was that Home Aid’s workmanship fell significantly below minimum workmanship standards. Further, the evidence was that Home Aid failed to comply with the CWO. The Administrative Law Judge concludes that Home Aid’s failure to take appropriate corrective action constitutes both non-compliance with written agency directives and also a wrongful act causing substantial injury to the Baxleys. Because Home Aid is not currently a licensed contractor, it will be necessary that Home Aid complete any corrective work required by Order of the Registrar of Contractors through a separate, properly licensed contractor. It must be noted in this regard that because the imposition of discipline against Home Aid’s license will necessarily depend on work performed by others, it must be contemplated (and the Baxleys are hereby alerted to the probability) that Home Aid’s owner and qualifying party will understandably and prudently keep himself apprised of and monitor the timeliness and quality of the remedial work being performed on Home Aid’s behalf. The ROC Citation and Complaint advised Home Aid that in the event of a finding of a violation against it, Home Aid’s prior disciplinary record of final ROC orders could be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official ROC records regarding any prior final disciplinary orders against Home Aid, and said notice revealed that the instant complaint was the only complaint on the ROC’s current record regarding Home Aid. Therefore, Home Aid’s prior record is deemed to be excellent and is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. RECOMMENDED ORDER Based on the foregoing, it is recommended, commencing on the effective date of the Order entered in this matter (the “Effective Date”), that Home Aid’s Class C-30 license be revoked. It is further recommended that if Home Aid causes to be accomplished the corrective work set forth in Finding of Fact No. 20, a. through c. inclusive, on or before the Effective Date, then no license revocation shall be imposed. Instead, commencing on the Effective Date Home Aid’s license shall be suspended for a period of 14 days and thereafter placed on disciplinary probation for a period of 60 days.

Done this day, February 17, 2000.

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

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

By ___________________________ ----------------------- [1] The Administrative Law Judge uses the past tense to describe Home Aid’s status because, although Home Aid’s license was active when the complaint which gave rise to this proceeding was filed (June 8, 1999), at Mr. Chacko’s request the ROC canceled Home Aid’s license on July 22, 1999.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826