ALJDEC decisions subject to certification as final

2020A-00985-CHC-ROC · Registrar of Contractors · 2020-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Monica Ann Prack,

COMPLAINANT

JCR Enterprises, LLC,

License No. ROC 280574,

RESPONDENT

No. 2020A-00985-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 25, 2020 with further hearing on October 20, 2020 and November 20, 2020

APPEARANCES: Barry Aylstock, Esq. represented Complainant Monica Prack who was present. Justin Gowan, Esq. represented Respondent JCR Enterprises, LLC. James Robertson was present on behalf of Respondent JCR Enterprises, LLC. Registrar of Contractors Investigator Stephen Lawton testified.

Witnesses:

Wesley Boyd, Craig Thompson, David Fiacco, Uriel Izaguirre, Ignacio Herrera, Laura Eagan, Josh Knittel, Eric Roberts, Brent Bowman,

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

JCR Enterprises, LLC (“Respondent”) is the holder of License No. 280574 issued by the Arizona Registrar of Contractors (“Registrar”). James Robertson is the owner and qualifying party for Respondent.

On or about June 8, 2018, Monica Ann Prack (“Complainant”) and Wesley Boyd, Complainant’s significant other, signed a contract with Respondent for the construction of their home. See Respondent’s Exhibit 1. The contract specified that Complainant was to pay Respondent a flat fee of $35,000.00 and Complainant was responsible for all payments to subcontractors and for all materials required for the construction of the home. Id. The contract further specified that substantial completion of the project would be nine to twelve months from the start of construction and that substantial completion would occur when a certificate of occupancy was issued by the local building official. Id. The contract further specified that “occupancy of the home by the Owners(s) shall be deemed to be unconditional acceptance of the Home by Owner(s) and shall release the Contractor from any further obligations pursuant to this agreement” except for warranty items and home inspection items. Id. The contract also specified that “owner(s) must provide Contractor and all employees, subcontractors, and suppliers of contractor with adequate access to the Project as required by Contractor to perform this Agreement.” Id.

On or about February 27, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Stephen Lawton. A jobsite inspection was scheduled for March 24, 2020, however, due to COVID-19 concerns, the jobsite inspection was re-scheduled to May 7, 2020. By that time, Complainant had filed an addendum to the Complaint which was incorporated in the jobsite inspection. After the jobsite inspection, on May 21, 2020, Investigator Lawton issued a Written Directive to Respondent that provided as follows:

After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); A.A.C. R4-9-108. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on June 19, 2020.

. . . .

DIRECTIVE REQUIREMENTS

You are directed to remedy the following violations by the appropriate means:

Complaint Item 1: Doors are not square.

Investigator’s Observation: It was observed that there are doors that the reveals are not square that were installed by the Respondent. Correct only the doors that were installed by the Respondent.

. . . .

Complaint Item 2: Sliding glass door not installed per manufacturers specifications.

Investigator’s Observation: It was observed that the sliding glass door was not installed per manufacturers specification.

. . . .

Complaint Item 3: Garage door was to be replaced.

Investigator’s Observation: It was stated that the garage door was to be replaced at time of inspection and was ordered.

. . . .

Complaint Item 4: Patio ceiling to be straight with consistent finish and no nail pops.

Investigator’s Observation: It was observed that there were nail pops that should be corrected within the first year by the Respondent.

. . . .

Complaint Item 5: Drywall is not consistent and repairs are needed.

Investigator’s Observation: It was observed that there are areas that need to be repaired throughout the residence. Respondent to correct drywall issues in the areas that were not touched by others as agreed to at the jobsite inspection. Paint as agreed to at the jobsite inspection.

. . . .

Complaint Item 6: Over spray on wood surfaces.

Investigator’s Observation: It was observed that there are areas that have over spray. Respondent responsible for only the areas that the Respondent did not touch and completed by others.

. . . .

Complaint Item 7: Drywall in garage needs repairs.

Investigator’s Observation: It was observed that there are areas that need repair. Respondent needs to repair areas that were agreed to at the jobsite inspection between both parties.

. . . .

Complaint Item 8: Doors that are to be replaced, exterior master bedroom, exterior long hall and garage door to house.

Investigator’s Observation: It was that the garage door was to be replaced. Correct all door issues per agreement between both parties.

. . . .

Complaint Item 9: Closet walls out of square.

Investigator’s Observation: It was observed that the two linen closets –one in hallway and one in master bedroom that were out of square.

Following the issuance of the Written Directive, Respondent contacted Investigator Lawton asking for guidance due to the fact that Respondent was not able to complete the items in the Written Directive within the specified time frame. Because Complainant would not consent to an extension of the deadline, Investigator Lawton forwarded the Complaint to the Registrar’s Legal Department.

The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32-1154(A)(22).

Investigator Lawton testified that during the jobsite inspection, Mr. Boyd was “not listening” and “interfering with the inspection.” Investigator Lawton testified that he instructed Mr. Boyd to go into the house because he was becoming angry with Mr. Robertson over workmanship issues.

Investigator Lawton testified that there were nine (9) items on the Written Directive that remained out of compliance and that he was aware that Respondent was working on those issues prior to the issuance of the Written Directive. Investigator Lawton testified that during the inspection, the parties agreed as to what work was Respondent’s responsibility and what work was not Respondent’s responsibility due to Complainant having hired a handyman to perform some painting and work on certain doors, thereby modifying Respondent’s work. Investigator Lawton testified that Mr. Robertson emailed him regarding access issues, general conditions at the jobsite, Mr. Boyd’s interference with Respondent’s efforts, and Respondent’s efforts at obtaining a drywall contractor to perform many of the items contained in the Written Directive.

Investigator Lawton testified concerning a March 22, 2020 email he received from Mr. Robertson. See Respondent’s Exhibit 6. In the email, Mr. Robertson indicated that Complainant contacted him to continue to work on the repairs and he responded by stating that he would be at the jobsite with his drywall contractor on Saturday, March 21, 2020, at 8:00 a.m. Id. When Mr. Robertson arrived, he was “immediately met by her significant other Mr. Boyd. He started screaming and shouting, so my helper and I determined that it would be best for us to leave. I did not feel comfortable having my helper work under those conditions.” Id. The email further stated:

In a prior meeting Ms. Prack, Mr. Boyd and I met on March 7, 2020 at the end of the day to discuss how we would proceed with the repairs. While the three of us was discussing the plan, Mr. Boyd screamed at Ms. Prack to Shut the F up three times. This made me uneasy. I have seen him do this several times throughout the project. My concern is that if we say the wrong thing, Ms. Prack will suffer after we leave.

Id. (emphasis in original).

Investigator Lawton explained that a contractor cannot be denied access and that a homeowner does not have the right to dictate to a contractor how work is to be performed, in what order, or the specific subcontractors hired to perform the work. Work should be performed Mondays through Fridays from 8:00 a.m. until 5:00 p.m., and Saturdays can be mutually agreed upon.

Investigator Lawton testified that he received a June 11, 2020 email from Mr. Robertson regarding Mr. Boyd’s constant interference with Respondent’s attempts at corrective work. See Respondent’s Exhibit 7.

Mr. Robertson testified regarding the extensive issues he encountered during his attempts to comply with the Written Directive. Mr. Robertson acknowledged that the deadline for the Written Directive was June 19, 2020. Mr. Robertson testified that he had multiple drywall subcontractors out to the site prior to the expiration of the Written Directive, however, none of those subcontractors would agree to perform work at the jobsite due to Mr. Boyd’s volatile demeanor and interference.

On June 16, 2020, Mr. Robertson brought Sergio, a drywall subcontractor, to the jobsite. Mr. Robertson audio recorded a portion of that visit because “things were getting worse, volatile” and Mr. Robertson was “afraid someone would get hurt.” The audio recording was admitted as Respondent’s Exhibit 20. Mr. Robertson testified that Sergio was the last contractor he brought to the jobsite and that he had brought several others prior to Sergio who were “chased off” by Mr. Boyd. Mr. Robertson asserted that he could not get anyone to work at the jobsite due to Mr. Boyd’s behavior. Mr. Robertson testified that Sergio would not take the job.

On June 18, 2020, Mr. Robertson sent an email to Investigator Lawton explaining his efforts to comply with the Written Directive. See Respondent’s Exhibit 8. The email stated the following in pertinent part:

Mr. Lawton, I contacted another licensed drywall contractor on June 1, 2020 to give me a bid on the property . . . . The contractors name was Sergio and he told me that he was extremely busy and didn’t have the time to work with me on this project. Sergio reached out to me on June 15, 2020 and told me that his schedule had freed up and that he wanted to see the job on Tuesday, June 16, 2020. He also stated that he had a guy that could start work immediately. I contacted Ms. Prack and she agreed to meet with us.

At 8:00 am on June 16, 2020 Sergio and I arrived at the home and prepared for a walk through. The walk through took approximately one hour. For most of that hour Mr. Boyd followed us through the home screaming at me about the drywall. Ms. Prack asked him about 20 different times to calm down, but he stated that he didn’t care and wasn’t going to calm down.

I feel that at some point someone is going to get hurt going to this home. While walking through the home with Sergio and Mr. Boyd screaming at me, there were fire arms laying everywhere. At one point Sergio requested Mr. Boyd to move two shotguns because he wanted to check to see if the wall was square. His excuse was that he didn’t want his fingerprints on the guns. Mr. Boyd did relocate the guns to the bed.

I was hoping to have Sergio start working on Wednesday, June 17, 2020, but at this point he has refused to respond to my text messages and my phone calls. I now feel that he will refuse to take the job like the others because of the hostility at the home. In order to complete the job, I need have a situation where my subs are feeling safe while working. I don’t have this at this jobsite.

I have brought out Ignacio, Shawn, Max, Jose, Dale and now Sergio to work on the drywall. They are all coming to the same conclusion. This is a hostile situation and that they are extremely hesitant on getting involve with it. I also heard from the subs, that they felt that no matter what they did, the client wouldn’t be happy.

. . . .

Id. (all errors in original).

Ignacio Herrera, one of the drywall subcontractors who had worked at the jobsite and who Mr. Robertson requested perform repair work, testified at hearing. Mr. Herrera testified that during the times he was working on the project, the “owners were always upset” and “complaining.” Mr. Herrera testified that Mr. Boyd attempted to direct the work, and that one day he would not let Mr. Herrera in the home to do any work.

Mr. Robertson also attempted to secure Max Collazo, another drywall contractor, to perform the work within the time frame of the Written Directive. However, Complainant restricted the times that Mr. Collazo could perform the work, and he was unavailable during those times. See Respondents Exhibits 19 and 19(1).

Although not within the time frame of the Written Directive, Mr. Robertson also attempted to secure SS Drywall, LLC to perform the work. However, the response he received in pertinent part was as follows:

. . . Monica and Wes are very angry and difficult people who would be very hard to work with and would never be satisfied. Since they would be in the home when the work was being done, they would be challenging everything and nothing would be accomplished. I’m afraid that nothing can be done to their satisfaction, either by me or anyone else.

I don’t believe there is any way you will find someone, including my workers, to do the repairs on this home, unless the homeowners are out of the house while the work is being done.

Respondent’s Exhibit 9(1).

Mr. Robertson also attempted to hire Sergio, another drywall contractor, again after the expiration of the Written Directive. Sergio’s response was, “Sorry man, I don’t think I will be able to help you. Owners are going to be on our backs at all times and we don’t really work like that . . . .” Respondent’s Exhibit 9(2).

Mr. Robertson attempted to have another drywall contractor, Dale, to perform the work within the time frame of the Written Directive. Dale responded to Mr. Robertson as follows: “There is no way to give you a price and I’m not sure if I want that job because the tenants are the type of customer that you can never make happy.” Respondent’s Exhibit 9(3). Mr. Robertson responded, “I want [sic] hold you responsible if it doesn’t work out. If we did the first three rooms I will pay you. We would only move forward if they signed off on that.” Id.

Mr. Robertson testified regarding his efforts to secure a painting subcontractor to perform some corrective work. On March 20, 2020, after Complainant filed the Complaint, Mr. Robertson emailed Complainant the following:

Good afternoon Monica,

I wasn’t sure what I should do once the complaint was filed. Another contractor told me that I have to wait until after the inspection before I proceeded. If you want, I can have the drywall guy come tomorrow at 8:00. Please let me know.

Again, I am not sure what to do once the drywall is completed. I was taking your suggestion as I mentioned earlier and was contracting CertaPro to perform the painting. They are refusing to do the painting because someone shared with them that a complaint was filed against my license. Now I will have to find another qualified painter. Maybe we can discuss you hiring CertaPro directly and I pay them according to the contract that I shared with you.

Complainant’s Exhibit 1 and Respondent’s Exhibits 14 through 14(4).

Mr. Robertson testified there was no way for CertaPro to have known about the filed Complaint at that time because it had not yet posted to Respondent’s licensing record, and that it was reasonable to assume that Complainant informed CertaPro of the filed Complaint. Mr. Robertson testified that CertaPro was “excited” about the job until they heard about the Complaint. Mr. Robertson requested that Complainant contact CertaPro directly because they would not work with him. Id. Complainant responded that she had communicated with CertaPro and “the only way any reputable painting company will guarantee their work is if they do the entire job (ie: All prep work before and painting.)” Id.

Mr. Robertson testified that he was “surprised” that his request for additional time to complete was the work was denied. Mr. Robertson explained that he was not able to complete the job and had a difficult time finding subcontractors to perform the work. Mr. Robertson credibly testified that Mr. Boyd was pushing to have the construction completed in four to five months notwithstanding that the contract specified a nine month time frame for construction. Mr. Robertson testified that it took five weeks just to grade the site. Mr. Robertson testified that Complainant breached their contract by hiring subcontractors prior to the completion of Respondent’s work. Section 2B of the contract, Scope of Work, states, “Owner(s) agrees not to perform any work at the Home until after contractors’ completion and final payment.” See Respondent’s Exhibit 1. Pursuant to the Scope of Work attached as Exhibit A to the parties’ contract, the construction of the home would be completed “in approximately a nine (9) month period.” Id. Mr. Robertson testified that Mr. Boyd rushed the HVAC portion of the project to be completed before framing notwithstanding that the project was not ready for HVAC. A series of text messages between Mr. Robertson and Mr. Boyd illustrates that Mr. Boyd was in contact and interfering with the scheduling of the HVAC contractor. See Respondent’s Exhibits 13 through 13(4).

Mr. Robertson testified that Complainant and Mr. Boyd moved into the home in January 2020, prior to the issuance of the Certificate of Occupancy that was issued on February 28, 2020. Mr. Robertson testified that Complainant moved in while Respondent was still working on the drywall and once Complainant moved in to the home, Respondent did not have unfettered access to the home anymore to perform work. Mr. Robertson testified that Complainant never paid him the final payment.

Mr. Robertson credibly testified that Mr. Boyd had numerous confrontations with him and his subcontractors, and that Mr. Boyd frequently verbally assaulted him and engaged in racist behavior, calling subcontractors, “beanies or burrito brothers” and that he used the “N word” throughout the project. Mr. Robertson credibly testified that Mr. Boyd referred to Respondent’s workers as “dumb asses.”

Craig Thompson, the excavating subcontractor for the project, testified at hearing that he was hired by Respondent to install the underground utilities. At the time, Mr. Thompson had his grandson, Derrick Harbaugh, working with him as a laborer. Mr. Thompson testified that he worked at the jobsite for three or four days and that his interaction with Mr. Boyd “was not good.” Mr. Thompson testified that at first, Mr. Boyd was “very nice,” but became “verbally hostile” when Mr. Thompson took a break at 11:00 a.m. after having been working since 6:00 a.m. Mr. Thompson testified that Mr. Boyd threatened to shoot them calling them “lazy bastards.” Mr. Thompson testified that Mr. Boyd “made it clear that he had a gun in the door of his truck and would use it if he had to.”

Mr. Thompson explained that the plumbing contractor installed the water line in an improper location. Mr. Thompson informed the plumber of the issue and when the plumber told Mr. Boyd, Mr. Boyd was “up in arms.” Mr. Thompson asserted that were it not for Mr. Robertson, he would have “been dead.” Mr. Thompson testified that Mr. Boyd was “off the wall” and that Mr. Robertson “took all the heat.” Mr. Thompson opined that Mr. Robertson should not have had to “put up with the verbal abuse” and that the entire time he was there, Mr. Boyd was “constantly yelling and screaming” and threatening not to pay. See also Respondent’s Exhibit 11.1.

Mr. Harbaugh, Mr. Thompson’s grandson, authored a letter describing his experience on the jobsite. The letter stated in pertinent part that Mr. Boyd: “. . . quickly turned the job site into an uncomfortable, hostile environment. . . . [Mr. Boyd] was yelling and getting in peoples faces, he was hollering about guys on their lunch breaks, and he was yelling about how the Mexican workers didn’t speak English. . . . [Mr. Robertson] was calm through out the whole day and was kind and apologetic to everyone involved . . . It takes a lot of integrity to endure the kind of disrespect that was hurled at him and his workplace that day.” Respondent’s Exhibit 11.2 (all errors in original).

David Fiacco, owner of Fiacco Custom Framing, LLC, Respondent’s framing subcontractor, testified that although he was only on the jobsite for approximately fifteen minutes per day to check in with his workers, his workers complained that it was an uncomfortable work environment and that they felt rushed. Mr. Fiacco testified that he had five to six workers there every day for fifteen days. Mr. Fiacco testified that the first day on the jobsite, he met Mr. Boyd who asked him, “How many illegals are building my house?” Mr. Fiacco expressed his concerns in a letter in pertinent part as follows:

The letter is regarding the treatment of subcontractors by the homeowners of the above referenced property. Fiacco Custom Framing, LLC was hired by James Robertson of JRC Enterprises LLC to supply lumber, hardware and labor for the construction of a new home on the property. While on this project, I was first hand witness to racism, intimidation, and verbal assault by the homeowner to James Robertson.

During the construction process, the homeowner was continually rushing other trades to complete their portion of the project without regard for the amount of time these trades actually needed to complete the work. I saw the homeowner verbally assault Mr. Robertson on more than one occasion when the homeowner felt the job was not moving fast enough. The homeowner would stand right in front of Mr. Robertson and proceed to yell and berate him. On the first day my crew was at the project, the homeowner asked me, “How many illegals are building my house?” which I felt was extremely racist.

Fiacco Custom Framing LLC passed all inspections that were needed so the other trades could continue the project.

Respondent’s Exhibit 11.

Uriel Izaguirre, an employee of Fiacco Custom Framing, LLC, testified that during the time he worked at the jobsite, Mr. Boyd was very disrespectful to Mr. Robertson, speaking to him in an aggressive, loud manner, and using “bad words” in the presence of other subcontractors. Mr. Izaguirre testified that he felt rushed by Mr. Boyd and that it was not a good working environment.

Mr. Robertson testified that he also had issues securing subcontractors at that point due to COVID-19 concerns.

Mr. Robertson testified regarding the Written Directive, that item number 1, had been corrected.

Regarding item number 2, Mr. Robertson testified that Pella went to the jobsite to inspect the sliding glass door. Because Respondent utilized two incorrect screws, the entire door needed to be replaced. Respondent obtained a bid from Pella for the replacement of the door. See Respondent’s Exhibits 16 and 16(1). Mr. Robertson testified that the reason the door has not yet been replaced was due to Complainant cancelling. Mr. Robertson testified that Respondent has been and is currently willing to have the door replaced.

Mr. Robertson testified that item number 3 had been corrected.

Regarding item numbers 4, 5, 7, and 9, Mr. Robertson testified that those were drywall issues and he could not find a contractor who was willing to perform work at the home. Mr. Robertson explained that all other items remaining on the Written Directive were drywall related and that he had been unable to secure a subcontractor to perform that work due to Mr. Boyd’s behavior.

As to item number 6, Mr. Robertson asserted that Complainant’s handyman was responsible for the overspray. Mr. Robertson testified that item number 8 had been corrected.

Mr. Robertson testified that the doors were corrected by subcontractor Southwest Door. Mr. Robertson testified that he had a completed invoice from Southwest Door and that Complainant had not indicated any dissatisfaction with the work performed on the doors. See Respondent’s Exhibits 12 through 12(2). Mr. Robertson asserted that Written Directive item numbers 1, 3, and 8 were addressed by Southwest Door to Complainant’s satisfaction.

Mr. Robertson explained that it was typical to have a walk-through prior to owners moving into the home, receiving a punch list, and having an opportunity to perform the work on the punch list. However, in this case, Complainant moved into the home before the work was completed, and Complainant hired numerous other subcontractors to perform work at the home.

Complainant acknowledged that Mr. Robertson told her that the house would take between nine to twelve months to construct, however stated that they talked about a five month time frame. Complainant testified that work on the home began on May 9, 2019, and that she and Mr. Boyd moved into the home on January 4, 2020. Complainant testified that she spoke to Mr. Robertson about a temporary Certificate of Occupancy and that he never told her that they could not move in. Complainant testified that she and Mr. Boyd hired contractors to install the cabinets and carpet and construct the pool.

Complainant testified that Respondent did not complete any items on the Written Directive.

Complainant offered into evidence a letter from Jackie Kilfoyl of Allied Iron, a door subcontractor hired by Complainant. See Complainant’s Exhibit 11. That letter stated in pertinent part:

I have worked with Monica Harty from design of her entry door, through installation, and any service calls that may have followed after install. She has been accommodating, understanding, and a pleasure to work with. Due to COVID-19, and the company being short staffed, I am unable to attend the hearing, and hope this letter will serve witness as to Monica’s character as an excellent client to work with.

Id. The letter makes no mention of Mr. Boyd.

Josh Knittel, an architect hired by Complainant to design the home, testified at hearing. Mr. Knittel testified that he worked with Complainant and Mr. Boyd for several months and was in involved in meetings with Complainant and Mr. Robertson two or three times. Mr. Knittel testified that at those meetings, everyone was professional and amicable. Mr. Knittel testified that Ms. Prack raised concerns with him on a few occasions regarding scheduling and workmanship issues with regard to Respondent. Mr. Knittel acknowledged that once the permit was obtained, his scope of work was complete and that his site visits thereafter were simply out of “curiosity” and that he had very little interaction once construction began.

Laura Eagan, President of Estrella Cabinetry Design Center, was hired directly by Complainant to perform the cabinet installation. Ms. Eagan testified that she was only on the jobsite with Mr. Robertson on one occasion and had no interaction with him. Ms. Eagan testified that she did not have any issue with Complainant or Mr. Boyd.

Eric Roberts of Lakeside Pools, LLC, testified that his interactions with Complainant and Mr. Boyd were pleasant.

Brent Bowman of Crown Carpet was hired by Complainant to install carpet and wood flooring in the home. Mr. Bowman testified that none of his installers had any issues with Complainant.

Complainant also referenced an email from Mike from Arcadia Air Conditioning and Heating, LLC, thanking Complainant and Mr. Boyd for the opportunity to work with them. See Complainant’s Exhibit 10.

Complainant also testified about a letter written by Lloyd from Southwest Door which states the following:

Wes and Monica were great to work with and very accommodating.

They found some problems with the materials and workmanship and installation of some of the new doors of their newly built home in Goodyear AZ. Built by James Robertson the General Contractor.

We were hired by James Robertson to repair and reinstall doors that were improperly installed, simple as that. James was very nice to work with and didn’t have any problem with our labor rates.

We at Southwest Door Service specialize in door repair and installation and make it our top priority to take care of our customers. I’m sure Wes and Monica would be great to any workers who are careful to do a good and professional job. They were great for us (Lloyd and Matt Evans) with Southwest Door Service. I would be happy to do door work for them in the future.

Complainant’s Exhibit 6.

Regarding the items on the Written Directive, Complainant testified that the reveal on the garage door still needed to be addressed and that Southwest Door stated that it would perform that work. Regarding item number 2 on the Written Directive, Complainant testified that she did not realize that Respondent had obtained a quote, but that it had already been replaced. Regarding item number 3, Complainant contradicted herself and testified that this item had been completed.

Complainant testified that “things were fine until things were not done correctly.” Complaint testified that she and Mr. Boyd did not deny access except if they were not at home or if an odd hour were requested. Complainant testified that she read the contract, understood it, and agreed to all terms. Complainant testified that pursuant to the terms of the contract, she agreed to pay Respondent $35,000.00, and to pay all subcontractors directly. Complainant acknowledged that she hired subcontractors to perform work while Respondent was still performing work. This was in breach of the terms of the parties’ contract. Complainant also acknowledged that she had not paid Respondent in full.

Complainant acknowledged that six different drywall subcontractors went to the property to evaluate the work that needed to be done, however, none came back to perform the work. Complainant acknowledged she was instructed by the Registrar not to interfere with Respondent’s work. Notwithstanding such, Complainant stated that she was “uncomfortable with guys in the house while she was alone” and that she “wanted to know who was in her home.”

Complainant acknowledged that there was an unsecured firearm during the drywall evaluation by Sergio, and she further acknowledged that Mr. Boyd had called workers “dumb asses.”

Mr. Boyd testified that he did his best to work with Mr. Robertson. Mr. Boyd acknowledged that he was pushing to be in the house by Thanksgiving which was 5 1⁄2 months after construction began. Mr. Boyd testified that the next deadline was Christmas, which would have been 6 1⁄2 months after construction began. Mr. Boyd testified that he and Complainant moved into the home in January and that Mr. Robertson knew that they were going to move into the home once their other home sold. This was in direct contravention of the terms of the parties’ contract which stated that construction would be complete in nine months.

Mr. Boyd testified that when he had an issue with Mr. Robertson, he pulled him aside, but sometimes workers overheard their exchanges. Mr. Boyd testified that he “brought workers treats until he got tired of picking up their trash.” Mr. Boyd asserted that Mr. Robertson could not read the prints, measurements or as-builts, and that he would come up with solutions and “kept Mr. Robertson informed.”

Mr. Boyd denied threatening to shoot Mr. Thompson and others at the jobsite. Mr. Boyd testified that he had to move two firearms from a closet in order to give someone access to the closet, “but no one flinched.”

Mr. Boyd admitted that he and Complainant were non-compliant with contract provision Section 2, Scope of Work concerning the fact that “Owner(s) agrees not to perform any work at the Home until after contractors’ completion and final payment.” See Respondent’s Exhibit 1. Mr. Boyd admitted that he and Complainant hired the pool contractor, a handyman, and other contractors that performed work while Respondent was performing its work, in violation of the contract.

Mr. Boyd acknowledged having contact with “all the subs,” that he felt Respondent was “wasting their money,” and he was “picking up nails and trash.” Mr. Boyd testified that he “oversaw the jobsite.” Mr. Boyd asserted that his contact with and direction to the HVAC contractor was part of a “think tank” because the air conditioning units had to be relocated. Mr. Boyd acknowledged his attempts at controlling the way in which work was to be completed, specifically as to a phased approach to the construction once he and Complainant were living in the home.

Mr. Boyd admitted that he wanted to know if there were “any illegals on the job” because “illegals are not allowed to work on the project.” Mr. Boyd testified that the jobsite is “not a safe haven for illegals.” Mr. Boyd admitted to calling workers “dumb asses” because he “calls a spade a spade” and that this is “jobsite construction language” and if Mr. Robertson was “offended, he’s in the wrong profession.” Mr. Boyd admitted to threatening to fire Respondent.

Administrative notice is taken of Respondent’s prior License record on December 7, 2020. Such prior License record reflects that Respondent’s License No. 280574 was first issued on August 27, 2012, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

The Registrar’s substantive policy statement 2017.01 sets out the following pertinent information:

Abuse of the Administrative Process

The Registrar of Contractors relies on complaints to carry out some of the mandates of the office. When anyone attempts to use the complaint process inappropriately, it undermines the Registrar’s ability to perform the duties that the citizens of Arizona depend on to ensure that the buildings in which they live, work, and play are safe. When that process is compromised, it is appropriate to dismiss the complaint in its entirety.

. . . .

Cooperation

“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 reasonably schedule and coordinate owner-controlled work.”

Source: Philip L. Bruner and Patrick J. O’Connor, Jr., Bruner & O’Connor on Construction Law, § 12:55 (West Group 2002) (citing inter alia Restatement (Second) of Contracts §§ 212 to 223); id. § 9:99 (noting subsidiary duties, including “an ‘implied duty’ to make timely decisions” and “an ‘implied duty’ to exercise inspection and approval rights reasonably”).

Denial of Access

Complainants are not prevented from refusing access because of their right to exclude others from their homes and it would not be appropriate to require contractors to trespass. [But it] is recognized that lack of access impinges on one party’s ability to defend itself and utilizing the benefits of the Registrar of Contractors is a privilege. Therefore, it is recommended that the Registrar dismiss complaints in which access is denied.”

. . . .

Notice and Opportunity to Cure

A breach cannot be said to be material if it is curable, notice to cure is given, and prompt steps are taken to cure or to offer assurances of cure. The right of a breaching party to be given an opportunity to cure its own material breach is an ancient equitable principle.... Cure is relevant to materiality by virtue of its focus on elimination of the breach and its implied assurance of intent to tender adequate future performance.... Providing a cure notice of curable breaches deemed by the nonbreaching party to be sufficiently material to warrant termination for cause is a fundamental prerequisite to termination.... Unless expressly waived, the right to cure is implied in every contract as a matter of law.”

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). 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. “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). 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.” Black’s Law Dictionary 1373 (10th ed. 2014).

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:

. . . .

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.

Ariz. Admin. Code R49108 provides that “[a] contractor shall perform all work in a professional and workmanlike manner” and that “a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.”

Substantive policy statement means:

[A] written expression which informs the general public of an agency’s current approach to, or opinion of, the requirements of the federal or state constitution, federal or state statute, administrative rule or regulation, or final judgment of a court of competent jurisdiction, including, where appropriate, the agency’s current practice, procedure or method of action based upon that approach or opinion. A substantive policy statement is advisory only.

Ariz. Rev. Stat. § 41-1001(22).

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 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).

The Registrar neither demands nor expects perfection from a licensee on the licensee’s first attempt at work. A licensee must be given a reasonable opportunity to remediate workmanship issues prior to the imposition of discipline against its license. In an administrative hearing, however, Respondent is responsible to establish a lack of opportunity or the preclusion from doing so.

There is ample evidence in the record that establishes that Complainant, through Mr. Boyd, denied Respondent access to perform corrective work. Mr. Boyd’s constant interference in the project, up to and including the jobsite inspection at which Investigator Lawton was compelled to dismiss Mr. Boyd, evidence such denial of access. Complainant failed to comply with contract provisions which specifically stated that “occupancy of the home by the Owners(s) shall be deemed to be unconditional acceptance of the Home by Owner(s) and shall release the Contractor from any further obligations pursuant to this agreement” except for warranty items and home inspection items, and “Owner(s) agrees not to perform any work at the Home until after contractors’ completion and final payment.” In this case, Complainant and Mr. Boyd moved in to the home in January 2020, prior to the specified contract completion date, and further, scheduled their own contractors to perform work at the home prior to Respondent’s completion of its work.

Moreover, Mr. Boyd’s conduct was reprehensible as established by numerous credible witnesses who were at the jobsite at Respondent’s behest and testified that Mr. Boyd’s behavior at the jobsite was belligerent, demeaning, threatening, and racist. The witnesses called by Complainant to testify were hired directly by Complainant and the pattern of testimony of those witnesses was in stark contrast as it appears that Complainant and Mr. Boyd were pleasant to the individuals they personally hired.

The Administrative Law Judge concludes based on the credible, probative, and substantial evidence presented at hearing that Respondent established valid justification, given the hostile and unbearable working environment, for not complying with the Written Directive.

Considering the scope of the project, the alleged workmanship deficiencies are minor, and Respondent had diligently attempted to comply with the Written Directive and has continuously been willing to make any corrections that the Registrar believed were required. Respondent has been licensed since 2012 without any other complaints against its license, which is a factor in mitigation. There was no substantial evidence adduced showing that Respondent was unscrupulous, unqualified, or financially irresponsible. Consequently, it would not be fair or just to impose discipline against Respondent’s license.

Considering the factors set out in the Registrar’s substantive policy statement, it is appropriate to dismiss this matter.

RECOMMENDED ORDER

IT IS ORDERED that Case number 2020-00985 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 (40) days after the date of that certification.

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-137160-45720000Done this day, December 16, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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