FINACT2019A-06127-CHC-ROC.pdf

2019A-06127-CHC-ROC · Registrar of Contractors · 2020-11-06

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Darrin L Harris, Case No. 2019-06127 COMPLAINANT, Docket No. 2019A-06127-CHC-ROC v. Horton Enterprises LLC, FINAL ADMINISTRATIVE License No. ROC 309645, 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 October 7, 2020. FINAL NOTE On page 3 line 4.5 change “ot” to “not” ///

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 Dated August 28, 2020. By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal and Recovery Fund Arizona Registrar of Contractors Copy mailed via USPS First Class mail August 28, 2020 to: Respondent Horton Enterprises LLC PO Box 23384 Phoenix, AZ 85063 Justin Gowan Esq. 2555 E Camelback Rd #800 Phoenix, AZ 85016 Complainant Darrin L Harris 1631 E Palo Verde Drive Phoenix, AZ 85016 Copy sent electronically this same date to: Office of Administrative Hearings Thomas Shedden, Administrative Law Judge 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 Case No. 2019-06127

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 8.3.2020 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Darrin L Harris, No. 2019A-06127-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Horton Enterprises LLC, DECISION DBA: D&D Construction & Home Improvement, License No. ROC 309645, RESPONDENT

HEARING: May 18 and July 13, 2020 APPEARANCES: Darrin L. Harris on his own behalf; Justin K. Gowan, Esq. for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT 1. On April 17, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on May 18, 2020 at the Office of Administrative Hearing. The hearing was convened on May 18th and further hearing was conducted on July 13, 2020. 2. The Notice of Hearing shows that the hearing was set to consider the charges made in the complaint and citation that were served on Respondent Horton Enterprises LLC on March 16, 2020. 3. Respondent holds license No. 309645 issued by ROC. Dion Horton is Respondent’s owner. 4. Through the Notice of Hearing, ROC alleges that Respondent may have violated ARIZ. REV. STAT. sections 32-1154(A)(1), (A)(2)(a), (A)(3), and (A)(22). 5. On June 1, 2019, Respondent entered a contract with Complainant Darrin L. Harris that called for Respondent to add a one-room addition to Mr. Harris’s house. The contract shows that the work could be completed in twelve weeks, subject to change in plans or circumstances beyond Respondent’s control. RECEIVED 8.3.2020 ROC LEGAL

6. The contract also includes a disclaimer showing that Respondent was not responsible for any work not described in the contract. 7. Work started on or about July 15, 2019, and the parties agreed to a number of change orders. 8. Much of the dispute relates to change orders that were not fully memorialized. As pertinent to this matter, one called for a change in a window in the addition, and the other involved lowering the room-addition walls by three courses of CMU blocks. 9. As discussed below, Respondent removed the three courses of block and subsequently added them back after Mr. Harris was dissatisfied with the lower walls. 10. Regarding the window, on October 13, 2019, through a text, Mr. Harris asked Respondent if it could replace the window called for in the plans with the window that had been salvaged from the wall that was removed from the existing house. Although the parties did not execute a written change order, Mr. Harris expected Respondent to make the change he requested, which Respondent did. Because the two windows were not the same size, Respondent was required to make changes to the room addition’s framing. 11. The contract called for the addition to be built in conformity with the approved plans. Respondent’s exhibit 10 is the plans that the parties agreed to use and that were approved by the City of Phoenix. Respondent had an architect prepare those plans. 12. Also in evidence are plans that were prepared by Studabaker and Associates LLC that Mr. Harris provided Respondent for conceptual purposes only (i.e., to provide Respondent with an understanding of Mr. Harris’s vision). Mr. Horton explained that the Studabaker plans were also used for estimating purposes. 13. The approved plans did not call out the height of the room addition. Mr. Horton explained that this was because architect identified possible issues related to tying the new roof into the existing roof, which would have required opening the existing roof to investigate. Consequently, the intention was to adapt as the building was constructed. 2 RECEIVED 8.3.2020 ROC LEGAL

14. Detail D of the plans shows that the rafters for the existing roof and the rafters for the addition’s roof were to abut on the existing block wall. The elevation and cross-section drawings on sheet 4 of the plans show the construction. These drawings are in conflict with detail D, and when the new wall was built to eight-feet as Mr. Harris requested, this detail could ot be used. 15. Initially, using the elevation and cross-section drawings on sheet 4, Respondent built the new walls to a height of eight feet using CMU blocks. 16. Respondent’s job superintendent, Gerardo Garcia, discovered that the new roof would not properly align with the existing roof. There was also an issue related to the drainage from the roof and the number of layers of shingles on the existing roof. 17. On September 26, 2019, Mr. Horton and Mr. Garcia telephoned Mr. Harris and discussed the issue. 18. Respondent offered two options. One choice involved additional construction to “frame out” over the existing part of the house to close the gap between the new and existing roofs, for which there would be an additional charge. The second option was to lower the walls by three blocks. 19. Mr. Harris opted to have the walls reduced in height, but his position is that Respondent did not tell him that this change would result in the ceiling height in the new room being reduced to seven feet. 20. The parties did not execute a written change order. 21. Respondent lowered the block walls at no charge to Mr. Harris. Reducing the wall-height meant that the ceiling height inside the addition would be lower. 22. Respondent began constructing the roof over the new addition. 23. On October 21, 2019, after he saw the addition with the lower walls and a lower ceiling height, Mr. Harris sent a text to Mr. Horton in which he expressed dissatisfaction in that he felt the ceiling was too low aesthetically, and he was of the opinion that the room would not meet the City code. Mr. Harris wanted eight-foot ceilings as called out in the Studabaker plans. 24. Because Mr. Harris was unhappy, through an email dated October 22, 2019, Mr. Horton informed Mr. Harris that Respondent would rebuild the walls to the 3 RECEIVED 8.3.2020 ROC LEGAL

eight-foot height. This required tearing out the roofing trusses and plywood and reinstalling the three courses of block. 25. Mr. Horton did not charge Mr. Harris to return the walls to the eight-foot height because Mr. Horton did not believe it would be fair to do so given Respondent’s failure to properly document the oral change order to lower the walls. 26. Rebuilding the walls to eight feet left the gap between the existing roof and the room addition’s roof, which requires framing to fix. 27. The parties disagree as to who is responsible to pay for framing out the roof on the existing house. 28. Respondent’s position is that Mr. Harris is responsible because the framing work is not within the scope of the contract because it is work on the existing part of the house, not the new addition. Mr. Horton opinion is that the problem stems from the change orders and a disagreement about the scope of the City-approved plans, and not because Respondent did not follow the plans. 29. At the hearing, Mr. Harris asserted that the plans were flawed and that Respondent was responsible because it failed to properly review the plans. The evidence shows that Mr. Harris had reviewed and approved the plans. Through his prehearing memo, Mr. Harris asserted that the City should not have approved the plans. 30. The City would not conduct any additional inspections until the project was “dried-in,” which required framing out the roof. 31. Mr. Horton emailed Mr. Harris asking him to meet to discuss the issue. On December 1, 2019, Mr. Harris responded to the effect that because he was not an engineer or architect, meeting would serve no purpose. 32. Through a reply on December 2, 2019, Mr. Horton explained his understanding of what the plans called for and explained that to fix the problem, they had to build up the existing den’s roof by framing out the difference, installing plywood, and installing shingles. 33. Mr. Horton quoted Mr. Harris a price of $4500 to do the work. Mr. Horton also informed Mr. Harris that he was not required to hire Respondent, but could hire another contractor to do the work. Mr. Horton asked Mr. Harris to let him know how he 4 RECEIVED 8.3.2020 ROC LEGAL

wanted to go forward and assured Mr. Harris that Respondent wanted to finish the project. 34. Through an email dated December 5, 2019, Mr. Harris provided Respondent with a time-line showing his version of events, including his dissatisfaction with the time the project had been pending, and he asserted that Mr. Horton’s request for additional money amounted to extortion. 35. On December 12, 2019, Mr. Harris filed with ROC a complaint against Respondent alleging abandonment on Respondent’s part. 36. ROC assigned Investigator Lisa Melton to the complaint. 37. After Mr. Harris filed his complaint, Respondent continued to work on the room addition. 38. On or about January 8, 2020, Mr. Harris raised a concern or allegation that Respondent’s cleaning person and another were violating his privacy by taking photos of his things. This deteriorated the parties’ relationship, which appears to have been strained already. 39. On January 8th, Mr. Harris asked Respondent to remove its lockbox from his house and required Respondent to provide 24-hours’ notice before conducing any work at the house, which made scheduling work more difficult for Respondent. 40. Through an email to Mr. Harris dated January 10, 2020, Mr. Horton informed Mr. Harris that he wanted to make a good-faith attempt to resolve the matter before Ms. Melton’s scheduled inspection. Mr. Horton stated his desire and willingness to complete the project and Mr. Horton offered to complete the required framing work for half the price of any estimate that Mr. Harris obtained, provided that Mr. Horton could be present when the other contractor inspected the project and that Respondent received a copy of the estimate. 41. Through the email of January 10th, Mr. Horton explained his position that Mr. Harris’s request to reframe the project for eight-foot ceilings resulted in work that was not within the scope of the parties’ contract; he further explained that the contract did not call for Respondent to perform any work on the existing building, which in his opinion was what the correction at issue required; he explained his position that Mr. 5 RECEIVED 8.3.2020 ROC LEGAL

Harris could hire Respondent or another contractor to perform the required work; he acknowledged that he would not honor a warranty unless the work that was not (in his opinion) part of the contract was performed correctly; he explained his understanding of the oral change order that was agreed to on September 26, 2019; he expressed his opinion that the windows were in conformity with the plans, except for the change that Mr. Harris had requested; he offered his opinion that the issue was a small one and correctable; and he explained that the City would not conduct any additional inspections until the roof issue was taken care of. 42. In the email of January 10th, Mr. Horton also stated his willingness to remove the lock box, but added that the fact that Mr. Harris had locked Respondent out, shows that Mr. Harris was making things more difficult than they had to be. 43. On January 13, 2020, Mr. Harris responded to Mr. Horton’s email of January 10th, stating only that Respondent had not been locked out. 44. On January 21, 2020, Ms. Melton conducted a jobsite inspection. 45. On February 14, 2020, ROC issued to Respondent a Directive that provided in part: …. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on March 6, 2020. ****

DIRECTIVE REQUIREMENTS You are directed to remedy the following violations by the appropriate means: Respondent shall complete project per original contract agreement, properly executed change orders, local building codes, and manufactures installation instructions. Compliance Item 2: Dion entered into a contract when he was unwilling or unable to complete all of the work. Investigator’s Observation: Respondent is required to complete contract. Governing Rule: A.R.S. 32-1154 (A) (1), Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

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Compliance Item 8: Dion made significant changes to the design plan of the project without informing the homeowner. Investigator’s Observation: Existing roof/ceiling elevation did not allow for sufficient ceiling height (in addition) to meet building code/pass inspection. The correction made to meet code resulted in an opening between the existing roof and addition. Respondent provided approved drawings. Respondent acknowledged that the drawings do not contain a vertical dimension. Correction is the responsibility of the Respondent. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Compliance Item 10: Dion's "fix" to above resulted in a window that does not match the height of other windows. Investigator’s Observation: Respondent acknowledged that window/window does not meet plans. No signed change order is in place for this change. Governing Rule: A.R.S. 32-1154 (A) (2), Plans Specifications and Building Code Violation. Compliance Item 12: After not completing work, Dion left home vulnerable to rain allowing water to seep into the home. Investigator’s Observation: No damage was identified in complaint, however, water was leaking from opening in roof into jobsite (addition to existing home). Site should be protected from water intrusion. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. 46. The Directive shows that ROC had determined that any other workmanship violations alleged in Mr. Harris’s complaint were unsubstantiated. 47. Regarding Item 2, Ms. Melton testified to the effect that Respondent had not abandoned the project. 48. Regarding Item 8, Mr. Harris agreed to have the walls reduced in height and then at his request the walls were rebuilt to allow for the eight-foot ceiling he wanted. Before he made his request to re-raise the walls, he was aware that there would be additional construction required. And he should have been aware that Mr. Horton was of the opinion that the additional work was not part of the contract.

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49. Ms. Melton’s observation about Item 8 that the “existing roof/ceiling elevation” (i.e., the roof after the three courses of block had been removed) would not meet the code is based only on Mr. Harris’s unsubstantiated statement and has not been proven. 50. Regarding Item 10, Mr. Harris requested a change in the windows and Respondent made that change for him. 51. Regarding Item 12, there is evidence to support a finding that Respondent contacted Mr. Harris about securing the site on November 1, 2019, and that Mr. Harris did not respond before he filed his complaint. The record shows that after the complaint was filed, Respondent made overtures about protecting the site that went un-responded to. 52. After receiving ROC’s Directive, Mr. Horton sought guidance from Ms. Melton. At the hearing, Mr. Horton explained that he was uncertain as to what was required of Respondent because ROC ordered Respondent to complete the contract, but he was of the opinion that the work at issue was not within the scope of the contract. 53. Mr. Horton spoke to Ms. Melton on February 24, 2020. During the discussion, Mr. Horton expressed his desire to get the matter rectified. He asked Ms. Melton if she was ordering Respondent to pay to fix the roof and to fix the window to plan. 54. Ms. Melton explained that Respondent could fix the roof however Mr. Horton wanted to, either by paying Mr. Harris or performing the work. Ms. Melton explained that she determined that Respondent was responsible for the roof because the plans did not have a vertical dimension to substantiate the height. 55. Ms. Melton also explained that she determined that Respondent was responsible for the window because there was no written change order. 56. Mr. Horton acknowledged his understanding of Ms. Melton’s position and expressed the possibility of settlement, but if not, he would continue to work. 57. Ms. Melton asked if Respondent would have any problem complying with the Directive by March 6th, to which Mr. Horton responded “no.” Respondent did not

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finish the work by March 6th and at the hearing, Mr. Horton acknowledged that he had been wrong. 58. During his conversation with Ms. Melton, Mr. Horton also acknowledged the issue with potential water intrusion and that Respondent should deal with it, but he noted that he had reached out to Mr. Harris and had not heard back. 59. Respondent began to make the corrections that ROC ordered it to make. 60. On March 2, 2020, the City conducted an inspection, but the work did not pass. 61. Through an email on March 2, 2020, Mr. Harris asked Ms. Melton what would happen if Respondent did not finish the work on time. 62. On March 3, 2020 Ms. Melton informed Mr. Harris that “the complainant can allow or refuse additional time. If you do not wish to allow additional time, the complaint will be referred to our legal department.” 63. On March 4, 2020, Ms. Melton informed Mr. Harris that the statute required that Respondent be allowed fifteen days to complete the work; once the Directive expires that will be met. 64. Through an email dated March 4, 2020, Mr. Horton informed Ms. Melton that the City required changes to Respondent’s extra work and that he would not be able to complete the work by the deadline; consequently he requested an extension from ROC, noting that he was trying to please Mr. Harris. 65. In addition to making the required changes, the work would have had to undergo another inspection by the City. 66. On March 5th, Ms. Melton forwarded Respondent’s request for more time to Mr. Harris. Ms. Melton wrote: “Statute requires that the Respondent be allowed 15 days to correct their work, after that time period, I cannot require that the Complaint allow additional time. Mr. Harris, please provide your position in regard to an extension of the directive due date.” 67. Mr. Harris responded that he had been dealing with water damage, that Respondent had done little work since the Directive was issued, and that he had

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discovered that there were additional deficiencies in Respondent’s work. Consequently, Mr. Harris was opposed to extending the deadline. 68. ROC denied Respondent’s request for an extension of time. 69. Ms. Melton testified as to her opinion that ROC’s directive provided Respondent with a reasonable amount of time to complete the work ROC ordered it to undertake. But although Ms. Melton has twenty years of construction experience, she testified that she did not work in private industry. This lack of experience was seen when she acknowledged that she could not say whether the City inspector would come to a site on demand of the contractor, although she assumed not. 70. At the hearing, Mr. Horton provided credible testimony that the remaining work could have been completed in a few days. City of Phoenix inspector, Robert Bandi (now retired) who was at the site on March 2nd, also provided credible testimony that the work could be completed in a few days. 71. On March 6, 2020 at 5:25 p.m., Mr. Harris emailed Respondent stating that that ROC’s deadline had passed and that Respondent was barred from entering the property until Mr. Harris provided Respondent with further notice. 72. Through an email dated March 11, 2020, Mr. Horton acknowledged that his employees would not come to the house without permission from Mr. Harris. He warned Mr. Harris about the need to protect the existing work from rain. 73. Mr. Horton also wrote: On another note, I really do not want this to have to go through the whole legal process if we can avoid it in anyway. This can really get drawn out and get expensive for both of us, all while you are still out of your home. With that being said, I have no problem bringing in all new contractors to finish your project if this is something that will help build a little more trust in me and move this project along. I also am willing to give you a break on the total cost of the project for the major inconvenience I have caused you…. I am not walking away from this project in anyway and [I'm] dedicated to getting this completed for you by any means. Please let me know how you [would] like me to proceed.

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74. Mr. Harris responded to the email raising again the issue of the water intrusion and asserting that the roof was not properly pitched and that additional water had intruded causing damage. Mr. Harris stated that he had no confidence that Respondent could protect the home going forward and that based upon Respondent’s previous selection of subcontractors, he had no confidence in Respondent’s ability to hire competent tradesmen capable of providing quality work. Consequently, Mr. Harris informed Respondent that the only resolution he would accept was a financial settlement. 75. ROC issued to Respondent a Citation dated March 16, 2020, through which ROC alleges that Respondent may have violated ARIZ. REV. STAT. sections 32- 1154(A)(1), (A)(2)(a), (A)(3) and (A)(22). 76. On March 14, 2020, Mr. Horton informed Ms. Melton that he had seen other contractors working on the house and wanted advice on how to protect Respondent considering the parties’ ongoing dispute. 77. On March 16, 2020, Ms. Melton informed the parties that because the Directive had expired, Mr. Harris could hire others to make repairs. She informed the parties that she would conduct a compliance jobsite inspection on March 17, 2020 to document the current site conditions. 78. At the hearing, Ms. Melton explained that the compliance jobsite inspection was atypical for a project in which the corrective work had not been completed, but because another contractor was working she wanted to see the condition on that date. 79. During the time at issue, the City’s inspector Mr. Bandi was in a supervisor’s role. Respondent was having trouble effectively communicating with the assigned inspector, and there were some failed inspections, which is not uncommon. Mr. Horton contacted Mr. Bandi to help open lines of communication. Mr. Bandi was at the site on October 18, 2019, but did not do any inspection work, and he was there again on March 2, 2020. 80. The parties elicited testimony from Mr. Bandi about the project’s inspection history, and Mr. Bandi noted that some of the work looked amateurish. But this 11 RECEIVED 8.3.2020 ROC LEGAL

testimony was not directly on point with the allegations ROC made against Respondent, and Mr. Bandi acknowledged that ROC and the City apply different standards and that he had no recollection of any discussion about ROC’s Directive. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. ARIZ. ADMIN. CODE § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” ARIZ. REV. STAT. § 41-1092.07(G)(2). 3. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” ARIZ. REV. STAT. § 41- 1092.07(G)(3). 4. A preponderance of the evidence is: The 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. BLACK’S LAW DICTIONARY 1373 (10th ed. 2014). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” ARIZ. REV. STAT. § 1-211(B).

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7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. The Administrative Law Judge may consider ROC’s administrative record. See ARIZ. ADMIN. CODE § R4-9-118. 9. ARIZ. REV. STAT. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: 1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. 2. Departure from or disregard of: (a) Plans or specifications in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. ***** 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. ...

10. ARIZ. ADMIN. CODE section R4-9-108 provides that “A contractor shall

perform all work in a professional and workmanlike manner [and a] contractor shall

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perform all work in accordance with any applicable building codes and professional industry standards.” 11. ARIZ. REV. STAT. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of ARIZ. REV. STAT. section 32-1154(A)(22). 12. It has not been shown by a preponderance of the evidence that Respondent abandoned the project in violation of ARIZ. REV. STAT. section 32- 1154(A)(1). To the contrary, the evidence shows that Respondent was willing to complete the project and was working toward that end until Mr. Harris precluded entry, and Respondent made additional proposals to resolve the matter after that time. 13. Complaint item 8 is that Respondent made changes to the plan without informing Mr. Harris of those changes. Mr. Harris agreed to have the walls reduced in height and then at his request the walls were rebuilt to allow for the eight-foot ceiling he wanted. Consequently, this allegation is not proven. 14. When Respondent agreed to Mr. Harris’s request to raise the walls back to eight-feet, apparently the parties did not address the question of who would be responsible to pay for the extra framing. When Mr. Harris requested that the walls be returned to eight-feet, he was aware that there would be additional work required to correct for the problems the parties had discussed on September 29, 2019. 15. Because Mr. Harris authorized Respondent to re-raise the walls, the fact that the plan does not include a vertical dimension for the wall is rendered null, assuming it was ever an issue. And Mr. Horton provided evidence to show that the dimension was omitted to allow Respondent to adapt to conditions during construction. 16. It was not proven that the room would not have passed inspection with the lower walls, but Mr. Harris’s request to have the walls raised back to eight-feet also rendered this a nullity. 17. The dispute about who should bear the cost to add the framing required to close the gap is properly considered a good-faith contractual dispute. 18. It has not been shown by a preponderance of the evidence that Respondent violated section 32-1154(A)(2) or (A)(3) with regard to complaint item 8. 14 RECEIVED 8.3.2020 ROC LEGAL

19. Regarding Item 10, the evidence shows that Respondent changed the window at the request of Mr. Harris. It has not been shown by a preponderance of the evidence that Respondent’s work on the window violated either subsection 32- 1154(A)(2) or subsection (A)(3). 20. Regarding Item 12, the record shows that Respondent contacted Mr. Harris to address the issue on November 1, 2019, and Mr. Harris did not respond. It has not been shown by a preponderance of the evidence that Respondent violated either subsection 32-1154(A)(2) or subsection (A)(3) with regard to Item 12. 21. Although Respondent did not comply with ROC’s Directive within the time ROC ordered, the preponderance of the evidence shows that its failure to do so was justified and not a violation of subsection (A)(22). 22. Respondent was conducting the work at issue when the time expired; Respondent was willing to finish the work, which would have taken only a few days, and it requested an extension. Standing alone this is sufficient justification, but the evidence also shows that Respondent was cooperative throughout and repeatedly made known his desire to complete the project and reach a positive outcome. 23. As written, the Directive provided Respondent twenty days and seventeen hours to correct the work ROC ordered Respondent to complete. Accepting that that was a reasonable amount of time when the Directive was issued, it was not reasonable to refuse to extend the time under the facts of this matter. 24. Because it has not been proven by a preponderance of the evidence that Respondent violated any of the statutes ROC alleged it may have violated, this matter should be dismissed. RECOMMENDED ORDER IT IS ORDERED that on the effective date of the final Order in this matter case number 2019-06127 is 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 is forty days after the date of that certification.

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Done this day, August 3, 2020.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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