ALJDEC decisions subject to certification as final

2017A-2588-CHC-ROC · Registrar of Contractors · 2018-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

William Lewis,

COMPLAINANT,

v.

Pulte Development Corporation,

License No:

079383, 271572, 114027

RESPONDENT.

No. 2017A-2588-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 27, 2018, 8:30 A.M.

APPEARANCES: Complainant William Lewis appeared on his own behalf; Steve Richman, Esq., appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Pulte Development Corporation (Respondent), is the holder of License Numbers 079383, 271572, and 114027 issued by the Registrar of Contractors (Registrar).

2. On or about May 17, 2017, William Lewis (Complainant), filed a Complaint against Respondent with the Registrar alleging poor work in connection with the installation of shower tile by Respondent at Complainant’s residence in Buckeye, Arizona.

3. Upon completion of an inspection performed by the Registrar on October 18, 2017, the Registrar issued a Directive, dated October 31, 2017, requiring Respondent to correct the alleged deficiency in Respondent’s work by November 20, 2017, as follows:

Complaint Item 1: The shower has 6x6 inch tiles that were installed has uneven rows and inconsistent grout widths.

Complaint Item 2: Tiles cut around archway and interior of the archway are uneven with varying grout widths.

Complaint Item 3: Grout has inconsistent color.

4. On January 9, 2018, the Registrar conducted another inspection and found that Respondent’s corrective work, if any, was not performed in a professional and workmanlike manner. The Registrar then issued a Citation to Respondent, dated January 18, 2018, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for March 27, 2018, at 8:30 A.M. At the hearing, Complainant William Lewis testified and presented the testimony of Rebecca Miles. Lauren Marquez, Senior Customer Care Manager for Respondent, testified on behalf of Respondent and presented the testimony of Jesus Morales and Dan Coulter. Steve Lawton, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit letters A - H and Respondent’s exhibit numbers 1 - 12.

6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that it appeared that no corrective work had been undertaken by Respondent. He further testified that at the initial inspection, Complainant asked that the existing shower tile be replaced rather than repaired but that he, the Investigator, informed Complainant that he could not direct how corrective action was to be undertaken.

7. At the outset, Responded conceded that the workmanship issues listed in the Directive existed and that they were not completely corrected by Respondent by the Directive deadline. However, Respondent contended there was a valid justification for its failure to complete the corrective action.

8. Complainant testified that in January 2018 he moved into a new residence built by Respondent and that he had continuous issues with Respondent’s attempts to repair the shower tile. He testified that he never refused Respondent access after the Directive was issued. Specifically, he testified that he was contacted by Respondent on November 9, 2017, about performing corrective action (Complainant’s Exhibit E), but that he did not respond until November 14 (Complainant’s Exhibit E) because he first wanted to inquire of the Investigator whether he was legally required to grant access to Respondent. When advised by the Investigator that he was so required, he stated he advised Respondent that he was available until November 20 for repairs, but that he did not believe Respondent’s proposed repairs adequately addressed the Directive.

9. Complainant further testified that on November 20, Respondent’s representatives did not arrive until 10:00 A.M., that the last worker left at 2:30 P.M., and that virtually none of the Directive items were corrected. Complainant acknowledged that he reached a separate agreement with Jesus Morales, a representative of Respondent’s subcontractor (independent of Respondent), to replace all the tile in his shower and that Mr. Morales did ultimately do such work. Complainant denied that the agreement was reached on November 20, the day of the corrective work, but offered no testimony as to when the agreement was reached.

10. Rebecca Miles testified on behalf of Complainant that on November 20, 2017, representatives of Respondent did not arrive at the residence until after 10:00 A.M. although they were scheduled to be there at 8:00 A.M. She further testified that the tile worker for Respondent left on his own accord at approximately 2:30 P.M. and that he stated that he did not have the materials he needed.

11. Jesus Morales of JCAM Tile, a subcontractor of Heritage Interiors (the flooring subcontractor of Respondent), testified on behalf of Respondent that he had been the original installer of Complainant’s shower tile. He testified that he was present at Complainant’s residence to do the corrective work on November 20, 2017, on behalf of Respondent with his worker, Gonzalo Gonzales, and Dan Coulter of Heritage Interiors. He stated that when his worker arrived at about 10:00 A.M., Complainant proposed that instead of going forward with corrective work by repairing the shower tile, that Respondent agree to remove all of the existing tile at a later date and replace it with new different tile that would be selected and purchased by Complainant. Mr. Morales further stated that Complainant would not permit the corrective work to start until and unless Mr. Coulter made inquiries to Respondent to see if Complainant’s proposal was acceptable. He testified further that Mr. Coulter’s telephone calls to Respondent took over two hours and that his worker was not allowed access to the shower to begin the corrective work until after 12:00 P.M. Mr. Morales further testified that once the calls were made and after Mr. Coulter told Complainant that Respondent had rejected Complainant’s proposal to install new different tile, he, Mr. Morales, took it upon himself, independent of and without the knowledge of Respondent, to in essence accept Complainant’s proposal.

12. Mr. Morales stated he offered to install new upgraded tile at a later date for Complainant if Complainant purchased the tile. He stated he agreed to install it without charging Complainant because he wanted to help Complainant out and wanted to resolve this matter once and for all. Mr. Morales testified that based on his conversations with Complainant, he believed Complainant’s issue was not as much about workmanship as it was about Complainant’s unhappiness that he had paid an upgrade for 6 x 6 tile with which he was now unhappy. He further stated that it was apparent to him that Complainant had “buyer’s remorse” and was never going to be satisfied with the existing 6 x 6 tile Complainant had selected. He also testified that Complainant stated he would let this complaint go and drop the matter if Mr. Morales agreed to replace the shower tile for him with the upgraded larger tile.

13. Mr. Morales stated that Complainant agreed to his proposal before he, Mr. Morales, left the residence after 12:00 P.M. on November 20 and before any corrective work began. He stated they had a “gentleman’s agreement” and that he offered to provide Complainant with a formal written contract but Complainant stated that it was unnecessary. Even though he reached a verbal agreement with Complainant to replace the entire shower tile at a later date, Mr. Morales stated that Complainant suggested that Mr. Morales should still do as much corrective work as he could before 5:00 P.M. Mr. Morales stated he did not believe they could complete the corrective work by 5:00 P.M. when they had started the work at 12:00 P.M. He testified that Complainant called him later that night and texted him the next day to follow up. (Respondent’s Exhibit 10). He further testified that he ultimately replaced Complainant’s shower tile with 18 x 18 tile on February 7, 2018, and Complainant paid him $1,000 to reimburse him for materials on February 8, 2018. (Respondent’s Exhibit 11).

14. Lauren Marquez, Senior Customer Care Manager for Respondent, testified that the legal department received the Directive on November 7, 2017. (Complainant’s Exhibit 12). She stated she called Complainant the next day and followed up with an email on November 9 to get a date to perform the corrective action. (Complainant’s Exhibit E). On November 14 Complainant responded that he was available until November 20 (Complainant’s Exhibit E), and that she scheduled the corrective work for November 20.

15. Dan Coulter of Heritage Interiors, a flooring subcontractor for Respondent, testified on behalf of Respondent that he arrived at Complainant’s residence on November 20 at 8:00 A.M. but had to wait for the tile installer to arrive who had gone to pick up tile. The installer arrived at about 10:00 A.M. He stated that Complainant then asserted that he, the Complainant, did not want to keep the existing shower tile and did not want Respondent to fix it. Rather, according to Mr. Coulter, Complainant offered to buy new different tile if Respondent would install it. He further testified that Complainant would not grant access to the shower until after he, Mr. Coulter, contacted Respondent about Complainant’s proposal of installing new different tile.

16. Mr. Coulter testified that he then contacted Heritage Interiors and Respondent and was told that Complainant’s request regarding installing new upgraded tile had previously been considered by Respondent and rejected. He stated he exhausted all resources at Complainant’s request but had to advise Complainant that Respondent could not accept Complainant’s proposal. He further testified that Complainant adamantly stated to him that regardless of what corrective work was done by Respondent, that he, Complainant, would not accept it.

17. Mr. Coulter also stated that he left the residence at about 12:20 P.M. on November 20. He further testified that he believed it was possible to have finished the corrective work by 5:00 P.M. that day had the worker been permitted by Complainant to start the work at 10:00 A.M.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following:

3. Violation of any rule adopted by the registrar.

...

22. Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

6. Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner and potentially in violation of A.R.S. § 32-1154(A)(3). Respondent did not contest the existence of the items in the Directive or the failure to completely correct all of the items.

7. Complainant has failed to present sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to take appropriate corrective action without valid justification.

8. Respondent has shown that there was a valid justification for not completing the corrective work by the Directive deadline. The evidence is uncontradicted that Complainant would not allow any work to proceed on November 20, 2017, until Respondent was contacted about installing a new different tile that Complainant desired. Even though the worker was late in arriving at the residence, it was further uncontradicted that the worker lost two hours of work time as a result of Complainant’s delay. Mr. Morales stated that he did not believe the corrective work could then be completed in the five remaining hours (12:00 P.M. - 5:00 P.M.) Respondent was allotted. Mr. Coulter testified that he believed the corrective work possibly could have been completed in the seven hours they were allotted (10:00 A.M. - 5:00 P.M.) had Complainant not delayed the commencement of the work. There was no evidence presented to refute this. Regardless, Complainant’s delaying the commencement of the work on November 20 contributed to, if not resulted in, Respondent not having a full opportunity to timely complete the corrective work.

9. Whether Respondent could or could not have completed the corrective work by 5:00 P.M. on November 20, proceeding with the corrective work was or would have been a futile act because according to the testimony, Complainant had already planned to replace all of the existing shower tile. The evidence reflects that before any corrective work began on November 20, Complainant and Jose Morales, Respondent’s subcontractor, reached a separate agreement to completely remove all of the existing 6 x 6 tile at a later date and replace it with a new upgraded 18 x 18 tile. The Tribunal accepts Mr. Morales’ testimony that his agreement with Complainant was reached on November 20 before any corrective action was undertaken. Thus, the corrective action completed or that might have been completed was of no benefit to Complainant and was or would have been a futile act on the part of Respondent. “The law does not require a futile act.” Coronado Co., Inc. v. Jacome’s Department Store, Inc., 129 Ariz. 137, 140 (1981). Respondent’s licenses should not be disciplined for not completing a futile act.

10. The Tribunal is unpersuaded by Complainant’s position that Respondent’s tile worker arrived late at the residence and left early on November 20 and even had there not been a two hour delay caused by Complainant, Respondent could not have completed the corrective work in the actual time the worker was present (10:00 A.M. - 2:30 P.M.). It is not unreasonable to assume that there was no longer any sense of urgency on the part of Mr. Morales to have the corrective work completed knowing at that point that it was unnecessary and would be completely undone.

11. The Tribunal is further unpersuaded by Complainant’s argument that the corrective work proposed by Respondent, even if completed, would not have satisfied the Directive items. As stated by the Investigator, it is entirely within the province of the contractor to determine how to remedy items in the Directive. If the corrective action was ultimately deemed to be insufficient by the Investigator after the work was performed, then there again would be consequences to the contractor.

12. The Tribunal found Mr. Morales to be a very credible witness and found it to be admirable that Mr. Morales, believing Complainant would not be happy even if the corrective work was completed, attempted to resolve this matter on his own for no compensation. The Tribunal notes that even Complainant attested to Mr. Morales’s integrity.

13. Mr. Morales provided to Complainant exactly what Complainant sought from Respondent – replacement of Complainant’s existing shower tile with new larger tile selected and purchased by Complainant. According to Mr. Morales, Complainant agreed to drop this Complaint as part of his agreement with Mr. Morales. The evidence demonstrated that Mr. Morales lived up to his side of the bargain; Complainant, who presented no evidence to contradict Mr. Morales in this regard, seemingly did not.

14. Accordingly, even though Complainant has established a potential violation of A.R.S. § 32-1154(A)(3), Complainant has failed to establish that Respondent’s licenses should be disciplined for a violation of A.R.S. § 32-1154(A)(3) and (A)(22) because a valid justification has been shown for Respondent’s failure to complete corrective work.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that the Citation and Complaint in Case No. 2017A-2588 shall be dismissed.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification.

Done this day, April 16, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors