FINACT2019A-00805-CHC-ROC.pdf

2019A-00805-CHC-ROC · Registrar of Contractors · 2019-09-24

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Timothy J. Dingman and Christine A Bond, Case No. 2018-434 and 2019-00805

COMPLAINANT, Docket No. 2018A-434-ROC 2019A-00805-CHC-ROC v.

Shea Homes Limited Partnership License No. ROC 195895, 195896, FINAL ADMINISTRATIVE DECISION AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an

administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar

must provide written justification setting forth the reasons for the modification or rejection of each finding of

fact or conclusion of law.

REGISTRAR’S ACCEPTANCE

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar reviewed that decision and accepts it.

CONCLUSION AND ORDER

Because the Registrar has accepted the administrative law judge’s decision, that decision is the final

administrative decision in this case and becomes effective on November 3, 2019.

FINAL NOTES

On page 7, line 20 replace “Mr. Dingman” with “Respondent”. On page 7, line 22 replace

“$150,000.00” with “$100,000.00”. On page 8, line 11 replace “June 18, 2019” with “May 29, 2019”.

Dated September 24, 2019.

By: /s/ Joseph Citelli Joseph Citelli, Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Copy mailed via USPS First Class mail September 24, 2019 to: Respondent Shea Homes Limited Partnership 8800 N Gainey Center Dr Ste 350 Scottsdale, AZ 85258 Respondent’s Attorney James N. Hanson, Esq. 6730 N. Scottsdale Rd., Ste. 101 Scottsdale, AZ 85253

Complainant Timothy J Dingman and Christine A Bond 10105 E. Ampere Ave Mesa, AZ 85212 Copy sent electronically this same date to: Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar Office of Administrative Hearings Diane Mihalsy, Administrative Law Judge Case No. 2018-434/tw

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 9.18.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Timothy J. Dingman and Christine A. Bond, Nos. 2018A-434-CHC-ROC and 2019A-00805-CHC-ROC COMPLAINANTS, (Consolidated) v. ADMINISTRATIVE LAW JUDGE DECISION Shea Homes Limited Partnership, License Nos. ROC 195895 and ROC 195896, RESPONDENT.

HEARING: August 13, 2019, at 1:00 p.m.; the record was held open until September 9, 2019, to allow the parties to submit certain specified evidence and written closing arguments/legal memoranda. APPEARANCES: Timothy J. Dingman appeared on behalf of himself and Christine A. Bond (collectively, “Complainants”); Shea Homes Limited Partnership (“Respondent”) was represented by James N. Hanson, Esq., Lang & Klain, P.C. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT

1. According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public

website,1 on or about May 9, 2004, the Registrar issued License No. ROC 195895, for

General Residential B Contracting, and License No. ROC 195896 for General

Commercial B-1 General Contracting to Respondent.

CASE NO. 2018-434

2. On January 29, 2018, Complainants filed a complaint with the Registrar,

alleging that Respondent had performed poor work in five specific respects when it constructed Complainants’ new house at 10105 E. Ampere, Mesa, Arizona 81212. The See A.A.C. R4-9-117 (“In any disciplinary proceeding conducted by the registrar, the licensee’s entire license file including the record of prior citations and decisions may be considered by the registrar in making a decision and order in the case.”). Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 9.18.2019 ROC LEGAL

complaint noted that “Orientation walk though scheduled for 02/14/18,” that Complainants had not yet closed escrow on or moved into the new house, and that Complainants had paid only $6,000.00 on the $306,909.00 contract price.2 The

Registrar designated the complaint as Case No. 2018-434.

3. Case No. 2018-434 was eventually assigned to the Registrar’s Senior

Investigator Stephen Lawton for investigation. On February 6, 2018, Investigator

Lawton sent a letter to the parties closing Case No. 2018-434 pursuant to “our recent

telephone conversation with complainant.”3

4. On or about April 17, 2018, Complainants sent an email to Investigator

Lawton, alleging 15 new items of complaint in Case No. 2018-434.4

5. The Registrar reopened Case No. 2018-434 and, on May 8, 2018, sent a

letter to the parties scheduling a jobsite inspection.5

6. On or about May 24, 2018, Respondent sent a letter to Investigator Lawton,

specifically addressing each of Complainants’ 15 additional items of complaint in Case

No. 2018-434. Respondent stated that “[i]t is worth noting that on March 22, 2018

[Respondent] performed a post-closing 1-month inspection of the Home. At that time,

[Respondent] agreed to address the Actionable Items of Concern signed by the [Complainants]. . . . Unfortunately, [Complainants] then refused to allow us access to the home to address the concerns they complained about.”6 7. Investigator Lawton performed a jobsite inspection in Case No. 2018-434 on May 31, 2018.7 On June 11, 2018, Investigator Lawton on behalf of the Registrar issued a Directive that required Respondent to take appropriate action to repair thirteen items of complaint on or before July 2, 2018, at 5:00 p.m. The order advised the parties that the Registrar had determined that any workmanship violations alleged in

See Respondent’s Exhibit 2. See Respondent’s Exhibit 3. See Respondent’s Exhibit 4. See Respondent’s Exhibit 5. Respondent’s Exhibit 6. 7 See Respondent’s Exhibit 7 (jobsite inspection notes and photographs). RECEIVED 9.18.2019 ROC LEGAL

the complaint but not listed in the order were unsubstantiated and did not require corrective action.8

8. On or about June 26, 2018, Nicklaus Wright, Respondent’s Vice President of Operations, sent an email to Investigator Lawton, in relevant part as follows: I have left you a few messages about our attempt to do work for Mr. Dingman. Yesterday our trades and my employees went through an onslaught of verbal abuse, and we can not tolerate that for the safety of our people.

Today, in an effort to try to accomplish the directive we continued work, and after the same behavior, including recording and video taping all workers, we have asked Mr. Dingman to stop doing that as we are not consenting to this action.

After three attempts to try and get him to [desist] said actions, he continues to do so. At this time we have stopped all work in his home. We will not return to his home under this type of environment.9 9. On or about June 27, 2018, Mr. Wright forwarded Respondent’s subcontractor Greg Redmon’s email to Investigator Lawton, in relevant part as follows: Here is a quick re-cap of the last 2 days at Tim Dingman and Christine Bond home at Ambition at Eastmark Lot #306. [Respondent’s customer service representative] Cindy had schedule[d] all the [trade partners] to make all the ROC repairs along with their 1 month items. Mr. Dingman was the only one home at the time of repairs on both days.

6/26/2018 – The day started with Mr. Dingman having everyone signing in as they entered his home. All through- out the day Mr. Dingman was questioning everything that was being done at his home – telling all the [trade partners] that their work was not good – Intimidating the trades and stressing them and myself and Cindy out. Mr. Dingman Respondent’s Exhibit 8. 9 Respondent’s Exhibit 9. RECEIVED 9.18.2019 ROC LEGAL

talked about how much he hated Shea Homes! Three trades as the day went on refused to do anymore work at the house. Chip the owner of DSC Drywall and Paint didn’t want his [employees] in the home without him there and wouldn’t allow his [drywallers] and [painters] back to the house the next day. (Chip called and talked to Nick about the homeowner’s actions) The Mesa Fully Form crew that came to the house in the afternoon to level the marble side splash said they would not go back into the house because of the way the homeowner was acting – again very aggressive and intimidating to the trades. Cindy and I were just trying to get the work done and get out of the house. Off and on through-out the day Mr. Dingman was recording as he was yelling at Cindy and I and the trades doing work at the house. I had to walk away and called Nick because of how the homeowner was acting and treating everyone, myself and Cindy too. Bill from Pacific Stucco said working at the house was the most stress filled incident that he had ever experienced working on a customer home. As we finished up the day, Mr. Dingman was very apologetic and said he was sorry for the way he had acted. 6/27/2018 – Thinking maybe today would be different after the apology from Mr. Dingman – Cindy and I show[ed] up to get the trades started. As we started to enter the home Mr. Dingman was videoing everything that was going on. Nick talked to Rick about the videoing and told me to tell . . . Mr. Dingman to stop videoing we have not given him consent to video. Mr. Dingman responded that it was his house and he wouldn’t stop. I asked Mr. Dingman two more times to stop videoing or I was going to stop all work and leave his home. Now out at the front of the house Mr. Dingman continued to video – so I told him we would not continue working at his house anymore. So I asked all the trades to go into Mr. Dingman[’s] house and clean-up and remove all their equipment. That’s when Mr. Dingman yelled out that everyone was to get off of his property – his face was bright red. I was walking up to Mr. Dingman and reaching for the electric cord to unplug it for the counter-top trade when Mr. Dingman said I was being aggressive towards him. I was just trying to get the cord and get off of the property. I told the counter-top trade to just drop the cord up in Mr. Dingman[’]s rocks and leave. He [went] into the house slammed the door and then did allow the trades into the RECEIVED 9.18.2019 ROC LEGAL

house to remove their equipment and clean-up quickly. With the way Mr. Dingman was reacting Cindy was very worried about [him] coming out with a gun or something. Cindy and I were both very stressed and I talked to Nick and he said to send Cindy and everyone home and if Mr. Dingman got more aggressive to call the police. We got everyone out of the community and didn’t see Mr. Dingman again.10

10. On June 29, 2018, Investigator Lawton extended the deadline on the directive in Case No. 2018-434 until July 16, 2018, at 5:00 p.m.11 11. On July 16, 2018, at 3:41 p.m., Ms. Bond sent an email to Investigator Lawton in Case No. 2018-434, “requesting a follow up inspection with you to review the work as it was not all completed to our satisfaction.”12 12. On or about August 16, 2018, Complainants sent an email to Investigator Lawton, asking to add seven additional items to their complaint in Case No. 2018- 434.13 13. On September 7, 2018, Investigator Lawton performed another jobsite inspection in Case No. 2018-434 regarding Complainant’s seven new items of complaint.14 14. On October 22, 2018, Investigator Lawton performed a compliance inspection on the 13 items on the May 31, 2018 directive in Case No. 2018-434. Investigator Lawton concluded that Respondent had corrected 10 items, but had not fully corrected three items, including missing or mismatched paint in the den (item #4), adjusting kitchen cabinet doors (item #8), and missing paint touchup (item #12).15 15. On October 24, 2018, Investigator Lawton on behalf of the Registrar issued a second directive in Case No. 2018-434, requiring Respondent to perform appropriate corrective action to three of Complainants’ additional seven items of complaint on or before November 13, 2018. The directive advised the parties that any complaints not listed had been determined to be unsubstantiated.

Respondent’s Exhibit 10. See Respondent’s Exhibit 11. Respondent’s Exhibit 12. See Respondent’s Exhibit 14. 14 See Respondent’s Exhibit 13 (jobsite inspection notes and photographs). RECEIVED 9.18.2019 ROC LEGAL

16. On or about November 6, 2018, Mr. Wright on behalf of Respondent sent a letter to Investigator Lawton, requesting an extension of time to comply with the October 24, 2018 directive in Case No. 2018-434 until Ms. Bond could be available.

Mr. Wright also requested that Respondent be excused from further corrective item #4

and item #12 on the May 31, 2018 directive because on November 1, 2018, Ms. Bond

told Respondent that she considered all paint related items closed and declined

additional repairs. Finally, Mr. Wright requested Respondent only be required to

perform further repairs if Mr. Dingman were not present because on numerous

occasions, he had threatened, harassed, berated, and abused Respondent’s

employees and subcontractors. Mr. Wright indicated that Respondent would happily

perform repairs if Ms. Bond or a third-party representative of her choice was present.16

17. On or about November 7, 2018, Ms. Bond responded to Mr. Wright’s

November 6, 2018 letter, stating that she did not agree that she had accepted

Respondent’s repairs to the two paint touchup items on the May 31, 2018 directive, and

explaining that “[w]hat I said was that I was not sure if they were allowed to work on the

items.” Ms. Bond stated that, in her opinion, Respondent’s request that Mr. Dingman

not be present when repairs were performed was “an attempt to isolate me and further misrepresent the situation” and that she “[did] not feel safe alone in my home with Shea and their representatives.” Ms. Bond indicated that she and Mr. Dingman would agree to have Respondent hire an off-duty police officer to be on site when it and its subcontractors performed repairs to comply with the October 24, 2018 directive in Case No. 2018-434.17 18. On or about November 9, 2018, Mr. Wright informed Investigator Lawton that Respondent declined to bear the expense of hiring an off-duty police officer to perform repairs to comply the October 24, 2018 directive in Case No. 2018-434.18 Investigator Lawton referred the matter to the Registrar’s Legal Department.

See Respondent’s Exhibit 16. See Respondent’s Exhibit 18. Respondent’s Exhibits 19, 20. 18 See Respondent’s Exhibit 20. RECEIVED 9.18.2019 ROC LEGAL

19. On December 6, 2018, the Registrar issued a Citation against Respondent’s contractor’s licenses in Case No. 2018-424, charging cause to suspend or revoke the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and 32-

1154(A)(22).19

20. Respondent retained the law firm of Lang & Klain, PC to represent it. On

December 21, 2018, Respondent’s attorney sent a letter to Complainants, stating that it

was willing to perform corrective work in Case No. 2018-434 to bring all items of

complaint within the Registrar’s workmanship standards, but that Complainants were

required to provide reasonable access for repairs. Respondent’s attorney quoted the

Registrar’s substantive policy statement that “American jurisprudence implies in all

contracts the obligation to cooperate in the performance of the contract and not to

delay, hinder, or interfere with the performance of other parties.”20

21. On December 21, 2018, Respondent’s attorney on its behalf filed a written

answer to the Citation in Case No. 2018-434, denying any cause to suspend or revoke

Respondent’s contractor’s licenses and affirmatively alleging that Complainants had

denied access for Respondent to perform repairs and that Complainants were “using

the administrative complaint process inappropriately.”21 The Registrar referred Case No. 2018-434 to the Office of Administrative Hearings (“OAH”), an independent agency, for an evidentiary hearing. 22. Mr. Dingman requested a settlement conference. On January 25, 2019, before the settlement conference, Mr. Dingman demanded that Respondent pay $150,000.00 to settle his claim.22 The parties did not settle their dispute. Respondent submitted to OAH a subpoena duces tecum for the video recordings that Mr. Dingman had made of his interactions with Respondent’s employees and subcontractors. CASE NO. 2019-00805

See Respondent’s Exhibit 21. Respondent’s Exhibit 22. Respondent’s Exhibit 23. 22 See Respondent’s Exhibit 26 at 0236. RECEIVED 9.18.2019 ROC LEGAL

23. On February 19, 2019, Complainants filed a second complaint with the Registrar against Respondent’s contractor’s licenses, alleging 50 additional items of complaint. The Registrar designated the complaint as Case No. 2019-00805.23

24. Investigator Lawton performed a jobsite inspection in Case No. 2019-00805

on March 29, 2019.24 On April 16, 2019, Investigator Lawton on behalf of the Registrar

issued a directive that required Respondent to correct by appropriate means 23 items

of complaint on or before May 10, 2019.25

25. Respondent hired an off-duty police officer to oversee its repairs and

claimed that it had fully complied with the April 16, 2019 directive in Case No. 2019-

00805. Both parties requested a compliance inspection. A compliance inspection was

held on June 18, 2019. According to Investigator Lawton’s jobsite inspection notes,

Respondent’s repairs pursuant to the directive all met industry standards, with the

exception of item #4 on the directive, the grout behind the toilet, and item #13, the paint

around the light in the kitchen. At both parties’ request, Investigator Lawton referred

Case No. 2019-00805 to the Registrar’s Legal Department.

26. On June 19, 2019, the Registrar issued a Citation against Respondent’s

contractor’s licenses in Case No. 2019-00805, charging cause to suspend or revoke the license under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and 32- 1154(A)(22).26 27. Respondent filed a timely written answer to the Citation in Case No. 2019- 00805, denying any cause to suspend or revoke its contractor’s licenses. The Registrar referred Case No. 2019-00805 to OAH, where it was consolidated with Case No. 2018-434 for an evidentiary hearing. 28. A hearing was held on August 13, 2019. Mr. Dingman testified on Complainants’ behalf and submitted four plus 19 exhibits.27 Respondent submitted 36 exhibits and presented the testimony of two witnesses: (1) Mr. Wright; and (2) Tracy

See the Registrar’s electronic file at pdf pages 186 - 189. See the Registrar’s electronic file at pdf pages 9 – 13. See the Registrar’s electronic file. 26 See Respondent’s Exhibit 21. RECEIVED 9.18.2019 ROC LEGAL

Grenier, one of Respondent’s customer service representatives who worked with Complainants. Investigator Lawton also testified.

ADDITIONAL HEARING EVIDENCE

29. Investigator Lawton testified consistently with the Registrar’s electronic

record, his directives, and his jobsite inspection notes and compliance inspection

notes.

30. Mr. Dingman attempted to show Investigator Lawton numerous

photographs that purportedly showed remaining workmanship deficiencies at the

jobsite,28 but Investigator Lawton testified that he did not know when the photographs

were taken and that they did not show the condition of the jobsite as of the date of his

most recent inspection. Mr. Dingman also went over Investigator Lawton’s photographs

of his various jobsite inspections.

31. In response to Mr. Dingman’s examination, Investigator Lawton denied that

he said he did not have his glasses and could not see at his May 29, 2019 compliance inspection in Case No. 2019-00805. Investigator Lawton stated that when he asked Complainants whether they would allow Respondent to finish performing paint touchup, they responded in the negative and stated that they would file another complaint with the Registrar with 66 items on it. 32. Investigator Lawton testified that most of the items of complaint were minor punch list items that are expected in new construction. Investigator Lawton testified that none of the issues were major or structural issues. Investigator Lawton testified that he did not believe that Respondent was trying to deceive Complainants or to willfully evade compliance with the Registrar’s and industry standards. Investigator Lawton testified that Respondent made reasonable attempts to comply with the directives. 33. Investigator Lawton testified that he did not have authority over who can be in the house when a contractor performs repairs. Although Complainants only identified four exhibits on their disclosure, they submitted nineteen exhibits to OAH. See, e.g., Complainants’ exhibits at 120 – 204 (Respondent submitted a notebook of the exhibits Complainant’s had disclosed and previously provided photographs). RECEIVED 9.18.2019 ROC LEGAL

34. Mr. Dingman did not testify about or establish foundation for the photographs that he showed Investigator Lawton as examples of Respondent’s remaining deficient workmanship in Complainants’ case-in-chief.

35. Mr. Dingman testified that he had concerns about his house from the time

before he took possession of the house and accused Respondent of making matters

worse and then crying victim. Mr. Dingman stated that he had to take time off work to

watch Respondent’s and its subcontractors’ repairs, and then they brought the wrong

parts.

36. Mr. Dingman testified that because he is from New York, he raises his voice

in communications. Mr. Dingman testified that he works as a foreman for another

construction company.

37. Mr. Dingman testified that Respondent hired people to perform repairs who

intentionally antagonized him and created a hostile environment in his home. Mr.

Dingman acknowledged that he made videos of Respondent’s employees’ and

subcontractors’ repairs and that he required them to sign a sheet that informed them

that their work would be video-taped before he allowed them to enter the home. Mr.

Dingman stated that he took these actions as a protective measure because Respondent’s employees and subcontractors were so hostile to him. Mr. Dingman testified that he was informed that one of the subcontractors was an MMA (mixed martial arts) fighter. 38. Mr. Dingman testified that he could do whatever he wanted with the video tapes and that he may have told Ms. Grenier that he would post the videos on social media. Mr. Dingman testified that he is not inclined to post the videos. 39. Mr. Dingman acknowledged that he had demanded that Respondent put him up in the Sheraton Talking Stick resort when it performed painting and that it agreed to pay for a resort that was not close to the house, but that was close to his wife’s work. Mr. Dingman testified that he only stayed in the resort one night because Respondent only made arrangements to reimburse him and he did not want to incur the expense because he could not afford it. Mr. Dingman testified that there was a strong paint smell in his house, but that he had to stay there after he left the resort. RECEIVED 9.18.2019 ROC LEGAL

40. Mr. Wright testified that Respondent started out as a plumbing company in 1881. It prides itself on customer service and regularly receives J.D. Power awards for excellence in customer service. Respondent does not advertise but, instead, relies on

customer referrals.

41. Mr. Wright testified that he has been involved in building thousands of

homes and has dealt with difficult people in the past, but that he has never dealt with

anyone like Mr. Dingman. When workers arrived at the house, Mr. Dingman would

meet them with arms folded across his chest, demanding that they sign his form and his

phone in his hand to video record their actions. Mr. Dingman would then stand over

workers’ shoulders and tell them what needed to be done. Although Mr. Wright was not

present for every interaction between Respondent’s workers and Mr. Dingman, Mr.

Wright received regular reports from the field.

42. Mr. Wright testified that all the customer service representatives that dealt

with Mr. Dingman had between 14 and 21 years of experience. Mr. Wright testified that

Respondent offered to cancel Complainants’ contract and refund their money because

it did not think that they would ever be satisfied or that Respondent would ever be able

to come to an understanding of Mr. Dingman’s expectations. 43. Mr. Wright testified that the events of June 26, 2018, described in Mr. Redmon’s email, quoted at Finding of Fact No. 9, were not an isolated incident but, rather, a pattern of Mr. Dingman’s behavior. Respondent requested that Mr. Dingman not be present because so many of its subcontractors refused to work while he was on- site. Mr. Wright testified that he did not believe that Complainants’ house was a safe work environment for Respondent’s employees and subcontractors while Mr. Dingman was on site. 44. Mr. Wright acknowledged that Respondent had not completed all of the corrective work that the directives required. Mr. Wright explained that Mr. Dingman did not allow Respondent to complete the work. In June 2019, Ms. Grenier was working to finish all the corrections when she received any email from Mr. Dingman, demanding that workers leave the home. RECEIVED 9.18.2019 ROC LEGAL

45. Mr. Wright testified that although the painting was in an isolated area of the master bedroom, Respondent reserved a room at the Talking Stick resort for Complainants. Because the hotel wanted the cardholder to sign for the room and he

was across town, Respondent promised to reimburse Mr. Dingman. Mr. Wright testified

that Respondent was scheduled to finish work on Thursday, but that when Mr. Dingman

returned from the resort on the last day of the directive in Case No. 2019-00805, he

demanded that everyone leave at 5:00 p.m. Mr. Wright testified that all of the

remaining work was minor touch up work and, if Respondent had not been kicked off

the job, it would have completed all repairs.

46. Ms. Grenier testified she has worked as a customer service representative

for Respondent for 14 years. Working with Mr. Dingman was difficult from the

beginning. Trades were uncomfortable signing the notice that he required to get in the

door and doing their work before cameras. Most of the trades did not understand what

was going on. Some of the trades that Respondent has used for years refused to go

back.

47. Ms. Grenier testified that most days started out OK but ended up difficult.

Mr. Dingman had an opinion on everything and, although she tried to get trades to do what he wanted, he became irate and dissatisfied. Ms. Grenier testified that Mr. Dingman stood over workers’ shoulders, criticized their work, and added items to the directives. Ms. Grenier testified that this case stood out from the other more than 2,000 houses she had been involved with. She has never had another customer insist that police be involved with repairs. 48. Ms. Grenier testified that it is also not normal for Respondent to put home buyers up in a hotel. Ms. Grenier testified that Respondent would have completed all repairs if Mr. Dingman had not returned, complaining of a headache and insisting that Respondent’s workers leave. 49. Ms. Grenier testified that Mr. Dingman accused her and Mr. Wright of lying about the status of Respondent’s attempts to complete the house. Mr. Grenier testified that Mr. Dingman threatened to post the videos that he was making on the internet. Ms. Grenier testified that Mr. Dingman’s treatment made her angry because she was RECEIVED 9.18.2019 ROC LEGAL

trying to do the best she could to resolve his issues, which only upset Mr. Dingman more. Ms. Grenier testified that one of the tradesmen accused Mr. Dingman of kicking his feet and that Mr. Dingman made her personally uncomfortable.

50. The record was held open to allow Respondent to submit two

representative videos that Mr. Dingman had taken that Respondent had obtained

pursuant to subpoena and to allow Complainants to respond to the video.

51. After the evidentiary hearing, Respondent submitted two short videos that

Complainant had taken of workers attempting repairs that Respondent had obtained

pursuant to its subpoena duces tecum.

52. The first video showed a worker who was attempting to repair the kitchen

cabinets while Mr. Dingman was present, with his arms crossed on his chest. Mr.

Dingman was asking the worker a barrage of questions and criticizing his work. When

the worker asked Mr. Dingman how he wanted repairs done, Mr. Dingman replied, “Not

right now.” Mr. Dingman launched into a tirade about how Carly said she would send

an email, but never did, and how everyone was screwing up. Mr. Dingman stated that

he had taken a video of himself explaining what he wanted. When the worker asked if

he could see the video, Mr. Dingman stated that the only time he would show the video was in court. Mr. Dingman stated that the specifications were in the contract and the design paper. When the worker asked Mr. Dingman to show him the specifications, Mr. Dingman responded that he had “no idea” about where the specifications were. Mr. Dingman told the worker he was done and just to fix the problem or replace the countertop because he was tired of playing games. When the worker protested, Mr. Dingman stated, “I don’t give a shit what helps you” and that “I’m going to continue on this route,” continuing to castigate the worker. 53. In the second video, four or five workers are packing up their tools in the yard while Mr. Dingman was talking to another worker. Mr. Dingman told the workers that their tools was now his stuff to prove that the workers were there. Mr. Dingman told the worker he was talking to get off my property and that he was taking the worker’s presence as a personal threat, then “Have a good day. Bye bye.” Some of the workers pointed to an electrical cord that appeared to be plugged in at the house. RECEIVED 9.18.2019 ROC LEGAL

Mr. Dingman then told the worker who was the object of his ire that he’d get an email and Mr. Dingman would be contacting the ROC in the morning to “work out when you fix things.” After the worker left, Mr. Dingman told the other workers that he took the

worker’s attitude as a personal threat because he was confrontational, which was not

apparent in the video. Mr. Dingman explained to the remaining workers that the worker

who was the subject of his ire was Respondent’s employee, not a subcontractor, and

that everything with Respondent was an argument. Mr. Dingman stated that he wanted

to protect his interests from hostile attitudes. When the subcontractors made no

comment, Mr. Dingman stated he would have restraining orders put out for hostile

attitudes.

54. Mr. Dingman responded to the videos, acknowledging that he was upset on

both occasions and stating that he believed that most people would have some sort of

emotional reaction to the situation Mr. Dingman recounted his recollection of his

interactions with Respondent’s Design Center. He also claimed that “there were

instances, off camera of course, where [Respondent’s] employees were not pleasant

and in particular instances that they were inciting trouble.” Mr. Dingman recounted one

alleged instance and stated that “Cindy,” one of Respondent’s customer service representatives, told him that a subcontractor was an MMA fighter, which Mr. Dingman apparently took as a threat. Although the alleged MMA fighter did not touch Mr. Dingman, “he walked towards me in a way that felt threatening” and Mr. Dingman asked everyone to leave the house. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.29 2. Complainants bear the burden of proof to establish cause to discipline Respondent’s contractor’s license by a preponderance of the evidence.30 Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.31

See A.R.S. § 32-1154(A). See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, Ariz. 369, 372, 249 P.2d 837 (1952). 31 See A.A.C. R2-19-119(B)(2). RECEIVED 9.18.2019 ROC LEGAL

3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”32 A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater

number of witnesses testifying to a fact but by evidence that has the most convincing

force; superior evidentiary weight that, though not sufficient to free the mind wholly from

all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of

the issue rather than the other.”33

4. Complainants filed their first workmanship complaint in Case No. 2018-434

before they had even before closed on or moved into the house and before any walk-

through inspection with Respondent. They subsequently added fifteen and then seven

more items to the complaint. It appears that all of the approximately 32 items of

complaint in Case No. 2018-434 have been corrected, with the possible exception of

touchup painting and kitchen cabinet adjustment. Of the 50 items of complaint in Case

No. 2019-00805, only the grout behind the toilet and paint around the kitchen cabinet

may remain. It appears that Respondent repaired other items that were not on any of

the complaints when Mr. Dingman called Respondent’s employees’ or subcontractors’

attention to the items. All of the items on all of Complainants’ various complaints involved minor work that typically is addressed through a punch list. 5. Although the remaining repairs under other circumstances might constitute grounds to suspend or revoke Respondent’s contractor’s licenses under A.R.S. § 32- 1154(A)(3),34 namely, A.A.C. R4-9-108,35 and A.R.S. § 32-1154(A)(22),36 Mr. Dingman’s behavior throughout the pendency of the complaints was bizarre and extraordinary. Mr. Dingman appeared to be less interested in having Respondent repair Complainants’ MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 33 BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” (Emphasis added.) RECEIVED 9.18.2019 ROC LEGAL

house to comply with the Registrar’s workmanship standards than he was in achieving secondary gains through the complaint and hearing process, either in besting Respondent or in achieving a substantial financial windfall. Contractors and

subcontractors should not be required to labor under the kinds of abusive conditions

that Mr. Dingman imposed. Nothing in this record shows that Respondent or its

subcontractors deserved or should be required to endure such abuse to keep their

contractor’s licenses. The Administrative Law Judge is amazed and impressed that so

few repairs remain, given the environment in which Respondent’s employees and

subcontractors had had to work to attempt repairs.

6. Among the Registrar’s substantive policy statements is one that describes a

homeowner’s duty of cooperation, in relevant part as follows:

American jurisprudence implies in all contracts the obligation to cooperate in the performance of the contract and not to delay, hinder, or interfere with the performance of other parties. Over the years, owners have been found on numerous occasions to have breached their implied duty of cooperation in the context of construction contracts. Such instances have included failure to provide timely site access, failure to inspect the work or complete other work necessary to allow the contractor to proceed, and failure to reasonable schedule and coordinate owner-controlled work.37

Mr. Dingman’s abuse of Respondent’s workers and subcontractors constitutes a serious failure to cooperate. Complainants’ abuse of the complaint and hearing process renders unjust any discipline against Respondent’s licenses as a result of Complainant’s various complaints. 7. “The Registrar’s power is limited to suspending or revoking a contractor’s license, or attaching conditions to the license. Money damages may not be awarded.”38 The vast majority of Complainants’ workmanship complaints have been resolved. Because Complainants appear to be more concerned with beating Respondent into submission and securing an advantage to obtain financial recompense from

Respondent’s Exhibit 28 at 0246 (authorities omitted). J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (App. 1984). RECEIVED 9.18.2019 ROC LEGAL

Respondent than getting their house repaired, they are not entitled to any more relief in this forum. Complainants may have a remedy for what they want in a judicial forum.

RECOMMENDED ORDER

Based on the foregoing, IT IS ORDERED that Complainants Timothy J. Dingman

and Christine A. Bond’s complaints against Respondent Shea Homes Limited

Partnership’s License Nos. ROC 195895 and ROC 195896 in Case Nos. 2018-434 and

2019-0005 shall be dismissed.

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

five days from the date of that certification.

Done this day, September 17, 2019. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors