ALJDEC decisions subject to certification as final

2020A-04249-CHC-ROC · Registrar of Contractors · 2021-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Zhengyun Qiao,

COMPLAINANT

v.

Mattamy Arizona Construction, LLC

License No. ROC 249191,

RESPONDENT

No. 2020A-04249-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 17, 2021 with further hearing on August 10, 2021

APPEARANCES:

May 17, 2021: Complainant Zhengyun Qiao appeared on her own behalf. Complainant’s husband, Bin Yuan, was also present. William Kozub, Esq. represented Respondent Mattamy Arizona Construction, LLC. Philip Fields, John Kinnally, and John Jeffrey appeared as witnesses for Respondent. Arizona Registrar of Contractors Investigator Beau Cruz appeared as a witness. Interpreter Mira Wong initially appeared to provide interpretation services, however, was replaced at the outset by Interpreter Leung Eng.

August 10, 2021:

Complainant Zhengyun Qiao appeared on her own behalf. Complainant’s husband, Bin Yuan, was also present. William Kozub, Esq. represented Respondent Mattamy Arizona Construction, LLC. Philip Fields, John Kinnally, and John Jeffrey appeared as witnesses for Respondent. Interpreter Winston Chou appeared to provide interpretation services.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

Procedural History

The hearing of this matter was originally scheduled on March 24, 2021. However, on March 24, 2021, just prior to the hearing, Zhengyun Qiao (“Complainant”) filed a Motion to Continue the hearing due to illness. The Motion was granted and the hearing was re-scheduled to May 17, 2021.

On May 17, 2021, the hearing convened and proceeded until a noon recess. During the recess, the Tribunal was informed that the Mandarin interpreter who had been interpreting for the hearing, was no longer available for the duration of the hearing setting. Consequently, the hearing was adjourned and re-set for further hearing on August 10, 2021, with a different Mandarin Interpreter.

FINDINGS OF FACT

Mattamy Arizona Construction, LLC (“Respondent”) is the holder of License No. 249191 issued by the Arizona Registrar of Contractors (“Registrar”).

Respondent constructed a spec home that was purchased by Zhengyun Qiao (“Complainant”).

On or about September 1, 2020, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to certain elements of the construction of the home.

The Registrar assigned the Complaint to Investigator Beau Cruz. After a jobsite inspection, Investigator Cruz issued a Written Directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 October 24, 2020.

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

Complaint Item 1: Before buying this house, I found that there were many

problems with the tiles (not the same level, broke, hollow, feeling loose when stepping on them) throughout the lower level. I asked the builder to replace them before I moved in because the repairs would not solve the problem. The builder refused to rebuild it, saying that repairing it would solve the problem and that they would replace it later even if they couldn't fix it. They repaired it twice before we moved in and just repaired some tiles that were cracked on their own, they claimed that there is a one year warrant after we moved in. After we moved in, we quickly discovered a lot of problems, the worst of which is that the tiles were loose and hollow when we stepped on them. Also, the floor tile grout cracked and missing along the baseboard. After consulting with professionals, we were told that the only way to solve the problem is to redo the first floor. we negotiated with them several times, the builder said it was normal, and refused to redo all the tiles. They just wanted to fill the hollow ones by injection. However, this can not solve the problem, especially for the ones that are shaking when you step on them, because it has been repaired twice already. They refused to change or recheck all the tiles, we could not reach an agreement with them, we have already moved in, and after March, the pandemic is very serious. We have elderly people and children at home, this caused us a lot of inconveniences. Since our one year warranty is almost up and the epidemic is still very serious, We had to pay for a professional to do a home inspection, We brought the inspection report and had a meeting with the builder on the 30th of August, they still refused to fix the problem in the right way, they only offered injection !! so we decided to file a complaint to ROC.

Investigator’s Observation: Numerous hollow sounding tiles noted throughout the Living/Dining Room area, numerous hollow sounding tiles noted throughout the Kitchen area, numerous hollow sounding tiles noted throughout the front Entry area, numerous hollow sounding tiles noted throughout the Front Bedroom area. Cracked tile to right of the Kitchen refrigerator. Chipped floor tile and missing grout around main floor Front Bedroom door jamb. Missing grout around main floor Front Bedroom door latch jamb.

Complaint Item 7: Cold air was leaking into the attic from the air handlers

near the refrigerant lines

Investigator’s Observation: Air was leaking into the attic from the north (N) furnace/air handler near the refrigerant lines. Air was leaking into the attic from the south (S) furnace/air handler near the refrigerant lines. It should be

noted that in the spirit of good customer service, the subcontractor (Chas Roberts Air Conditioning Inc.), sealed both at the jobsite inspection.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 1: Before buying this house, I found that there were many

problems with the tiles (not the same level, broke, hollow, feeling loose when

stepping on them) throughout the lower level. I asked the builder to replace

them before I moved in because the repairs would not solve the problem. The builder refused to rebuild it, saying that repairing it would solve the problem and that they would replace it later even if they couldn't fix it. They repaired it twice before we moved in and just repaired some tiles that were cracked on their own, they claimed that there is a one year warrant after we moved in. After we moved in, we quickly discovered a lot of problems, the worst of which is that the tiles were loose and hollow when we stepped on them. Also, the floor tile grout cracked and missing along the baseboard. After consulting with professionals, we were told that the only way to solve the problem is to redo the first floor. we negotiated with them several times, the builder said it was normal, and refused to redo all the tiles. They just wanted to fill the hollow ones by injection. However, this can not solve the problem, especially for the ones that are shaking when you step on them, because it has been repaired twice already. They refused to change or recheck all the tiles, we could not reach an agreement with them, we have already moved in, and after March, the pandemic is very serious. We have elderly people and children at home, this caused us a lot of inconveniences. Since our one year warranty is almost up and the epidemic is still very serious, We had to pay for a professional to do a home inspection, We brought the inspection report and had a meeting with the builder on the 30th of August, they still refused to fix the problem in the right way, they only offered injection !! so we decided to file a complaint to ROC.

Investigator’s Observation: Crack of less than 1/16 inch between baseboard and grout on the north wall of Front Bedroom.

Governing Rule: N/A: Crack of less than 1/16 inch between baseboard and

grout on the north wall of Front Bedroom.

Complaint Item 2: Their building standards are very questionable. Within less than a month after we moved in, we noticed the roof leaking when it rained, they called in the maintenance people. The first time, they said they

didn't find any leak. The second time, using a water test they found the leak,

told us the roof has been repaired, when they repaired it, they opened the drywall inside the house and caused great inconvenience to our life, but during the house inspection this time, the inspector still found problems on the roof. This house is a two-story building, the inspector can only check the roof of the first floor. The builder doesn't allow the inspector to check the roof, so the inspector can only check part of the first-floor roof by visual observation and an not check the whole roof because of the height.

Investigator’s Observation: Investigator is not able to walk roof due to

roof still under warranty and would void roof warranty and, would not be

responsible for any damage to tile if walked upon not to mention height of roof presented a hazard. Furthermore, investigator was unable to view roof tiles from the eaves, due to the fact that complainant did not have ladder tall enough to access such. Regarding drywall damage (which was in Living Room area), such was repaired by the respondent prior to jobsite inspection.

Governing Rule: N/A: Complainant was unable to reveal allegation.

Complaint Item 3: the builder and seller sold me the house with a two-car garage (for a standard car), but when I moved in, I found that even though I

could drive into the garage at the side with the water heater, but I couldn't close the car garage door, the builder gave me the solution: I have to remove the pole in front of the water heater at my own expense! I am so scared to do this because of the gas water heater and safety issues!!

Investigator’s Observation: Tuck-under garage is built to accommodate

standard cars, not small vans. Garage area was not completely viewable due to amount of personal belongings in garage.

Governing Rule: N/A: Complainant was unable to reveal allegation.

Complaint Item 4: This is another poor design: The gas meter was subject to damage or interfered with the neighbor’s gate at the west side. They refused to deal with this problem!

Investigator’s Observation: Gas meter is located on the left (W) side of the

structure and is inset far enough so that access to neighbor’s yard is unobstructed. Furthermore, installation was passed by local governing municipality. Certificate of Occupancy issued.

Governing Rule: N/A: Complainant was unable to reveal allegation.

Complaint Item 5: A/C condensation drain line terminates at the foundation recommend routing the line away to help prevent moisture damage to the foundation"

Investigator’s Observation: Noted that condensate lines terminate away from structure on the east (E) side of the structure. Furthermore, installation

was passed by local governing municipality. Certificate of Occupancy issued.

Governing Rule: N/A: Complainant was unable to reveal allegation.

Complaint Item 6: Oily substance found on the A/C refrigerant lines

Investigator’s Observation: No oily substance noted and or felt on or around refrigerant lines and/or by “King” valves of the condensing units located in the yard at the east (E) side of the structure.

Governing Rule: N/A: Complainant was unable to reveal allegation.

Complaint Item 8: Moisture stains were observed in the secondary catch pans for the attic air handler, may indicate a restriction in the primary drain lines.

Investigator’s Observation: Some calcification stains noted in the auxiliary

(secondary) condensate drain pans. No moisture noted in either pan.

Governing Rule: N/A: Complainant was unable to reveal allegation.

Addendums at jobsite inspection, respondent agreed to address.

Complaint Item 9: Main floor air conditioner does not seem to cool properly, and weak air flow at the supply registers.

Investigator’s Observation: Thermostat set at 80° Fahrenheit, lowered to 77° Fahrenheit. Waited for unit to recycle and, tested temperature of air in the Living Room with “Cooper” DPP400W digital probe thermometer at 5 feet in the center, and noted temperature was measured at 76.4° Fahrenheit temperature in the Kitchen area was measured at 76.2° Fahrenheit, and temperature in the Front Bedroom area was measured at 75.3° Fahrenheit. Workmanship Standards for Licensed Contractors states, “Unit should cool structure 30o (32o in Scottsdale) lower than outside air temperature when measured in center of room at 5' height. Minimum indoor temperature should

be 78o”. Noted air existing all supply registers in main floor of structure.

Governing Rule: N/A: Complainant was unable to reveal allegation.

Complaint Item 10: Master Bathroom shower leaks from base between glass panes at the corners.

Investigator’s Observation: Ran water in shower and allowed water to impact glass panes, and no water was noted leaking and/or felt at the corners.

Governing Rule: N/A: Complainant was unable to reveal allegation.

All errors in original.

Investigator Cruz testified consistently with the findings contained in the Written Directive. Investigator Cruz testified that Complaint item number 7 regarding the cold air leak was corrected at the jobsite inspection and is no longer an issue. Regarding Complaint item number 2, Investigator Cruz terrified that a roof leak could not be verified.

On December 11, 2020, Investigator Cruz conducted a Compliance Jobsite Inspection. The findings from that inspection are documented in Investigator’s Cruz’s Compliance Jobsite Inspection Notes as follows:

Compliance Findings:

Complaint Item 1: Before buying this house, I found that there were many problems with the tiles (not the same level, broke, hollow, feeling loose when stepping on them) throughout the lower level. I asked the builder to replace them before I moved in because the repairs would not solve the problem. The builder refused to rebuild it, saying that repairing it would solve the problem and that they would replace it later even if they couldn't fix it. They repaired it twice before we moved in and just repaired some tiles that were cracked on their own, they claimed that there is a one year warrant after we moved in. After we moved in, we quickly discovered a lot of problems, the worst of which is that the tiles were loose and hollow when we stepped on them. Also, the floor tile grout cracked and missing along the baseboard. After consulting with professionals, we were told that the only way to solve the problem is to redo the first floor. We negotiated with them several times, the builder said it was normal, and refused to redo all the tiles. They just wanted to fill the hollow ones by injection. However, this can not solve the problem, especially for the ones that are shaking when you step on them, because it has been repaired twice already. They refused to change or recheck all the tiles, we could not reach an agreement with them, we have already moved in, and after March, the pandemic is very serious. We have elderly people and children at home, this caused us a lot of inconveniences. Since our one year warranty is almost up and the epidemic is still very serious, We had to pay for a professional to do a home inspection, We brought the inspection report and had a meeting with the builder on the 30th of August, they still refused to fix the problem in the right way, they only offered injection !! so we decided to file a complaint to ROC.

Investigator’s Observation: Numerous hollow sounding tiles noted throughout the Living/Dining Room area, numerous hollow sounding tiles noted throughout the Kitchen area, numerous hollow sounding tiles noted throughout the front Entry area, numerous hollow sounding tiles noted throughout the Front Bedroom area. Cracked tile to right of the Kitchen refrigerator. Chipped floor tile and missing grout around main floor Front Bedroom door jamb. Missing grout around main floor Front Bedroom door latch jamb.

Respondent comply properly per the directive in regards to tile to right and left of front bedroom door jamb (P-10). Respondent failed to comply per the directive. No work performed in Dining/Living Area (P-3), no work performed in Living Room area (P-4). No work performed in the Entry area Kitchen and Patio access areas looking south (S) (P-5). No work performed in the Kitchen area (P-6). Main Floor Front Hall area looking east Main Floor Front Hall area (E) (P-7). Main Floor Front Bedroom area (P-8). Cracked tile in the Kitchen area to the right of the refrigerator (P-9. Respondent comply properly per the directive in regards with the right and left tiles of the front bedroom door jamb uneven width of grout joints (P-10).

Complaint Item 7: Cold air was leaking into the attic from the air handlers near the refrigerant lines

Investigator’s Observation: Air was leaking into the attic from the north (N) furnace/air handler near the refrigerant lines. Air was leaking into the attic from the south (S) furnace/air handler near the refrigerant lines. It should be noted that in the spirit of good customer service, the subcontractor (Chas Roberts Air Conditioning Inc.), sealed both at the jobsite inspection.

Respondent complied per the directive.

Complainant alleges that Ideal Restoration left drywall damage on the walls and ceiling of entry to the stairway area to the second floor (P-11, 12, & 13). Investigator sis unable to offer an opinion since is unable to determine if preexisting or caused as alleged by the complainant.

All errors in original.

Investigator Cruz referred the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a), A.R.S. § 32-1154(A)(2)(b), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), and A.R.S. § 32-1154(A)(22).

On March 23, 2021, Investigator Cruz conducted a pre-hearing inspection. Investigator Cruz’s Pre-hearing Jobsite Inspection Notes state the following:

Complaint Item 1: Before buying this house, I found that there were many problems with the tiles (not the same level, broke, hollow, feeling loose when stepping on them) throughout the lower level. I asked the builder to replace them before I moved in because the repairs would not solve the problem. The builder refused to rebuild it, saying that repairing it would solve the problem and that they would replace it later even if they couldn't fix it. They repaired it twice before we moved in and just repaired some tiles that were cracked on their own, they claimed that there is a one year warrant after we moved in. After we moved in, we quickly discovered a lot of problems, the worst of which is that the tiles were loose and hollow when we stepped on them. Also, the floor tile grout cracked and missing along the baseboard. After consulting with professionals, we were told that the only way to solve the problem is to redo the first floor. we negotiated with them several times, the builder said it was normal, and refused to redo all the tiles. They just wanted to fill the hollow ones by injection. However, this can not solve the problem, especially for the ones that are shaking when you step on them, because it has been repaired twice already. They refused to change or recheck all the tiles, we could not reach an agreement with them, we have already moved in, and after March, the pandemic is very serious. We have elderly people and children at home, this caused us a lot of inconveniences. Since our one year warranty is almost up and the epidemic is still very serious, We had to pay for a professional to do a home inspection, We brought the inspection report and had a meeting with the builder on the 30th of August, they still refused to fix the problem in the right way, they only offered injection !! so we decided to file a complaint to ROC.

Investigator’s Observation: Numerous hollow sounding tiles noted throughout the Living/Dining Room area, numerous hollow sounding tiles noted throughout the Kitchen area, numerous hollow sounding tiles noted throughout the front Entry area, numerous hollow sounding tiles noted throughout the Front Bedroom area. Cracked tile to right of the Kitchen refrigerator. Chipped floor tile and missing grout around main floor Front Bedroom doorjamb. Missing grout around main floor Front Bedroom door latch jamb.

Respondent changed all the floor tile in the structure, although noted at the prehearing jobsite inspection, a tile that was cut too short and is showing a gap between first stair riser (P-11) and, failed to properly caulk between sink and wall in the Powder Room as well as knife/razor cut in wall to right of Powder Room sink (P-13).

Complaint Item 7: Cold air was leaking into the attic from the air handlers near the refrigerant lines

Investigator’s Observation: Air was leaking into the attic from the north (N) furnace/air handler near the refrigerant lines. Air was leaking into the attic from the south (S) furnace/air handler near the refrigerant lines. It should be noted that in the spirit of good customer service, the subcontractor (Chas Roberts Air Conditioning Inc.), sealed both at the jobsite inspection. Respondent complied properly per the directive.

Complainant alleges that Ideal Restoration damaged on the walls of the Living/Dining Room area (P-2 & 3). Damage left face trim of base cabinet to left of refrigerator and left lower side of refrigerator door (P-4), damaged walls and baseboards in Front Bedroom (P-5 & 6), damaged the walls of Front Bedroom (P-6), damaged walls, garage fire door and jambs (P-7), damaged door, door jamb and baseboard in Pantry area (P-8, 9 & 10), damaged baseboard in Powder Room (P-12). Investigator is unable to offer an opinion since is unable to determine if preexisting or caused by the respondent when they replaced the tile, as alleged by the complainant.

All errors in original.

Investigator Cruz testified consistently with the findings contained in his Compliance Jobsite Inspection Notes, as well as his Pre-hearing Jobsite Inspection Notes. Investigator Cruz testified that Respondent completed its work to the Registrar’s standards and that he has no opinion regarding the alleged drywall damage.

Complainant’s Testimony

Complainant testified at length about the alleged deficiencies in the tile installation and the history of those deficiencies, as well as Respondent’s attempts to remedy the deficiencies. Complainant asserted at hearing that deficiencies in the tile installation remain. Complainant confirmed that Respondent replaced all the tile, however contended that there remains a broken tile under the refrigerator and next to the refrigerator. Complainant further asserted that Respondent’s workmanship was poor in that there are gaps in the tile and tile is uneven throughout the Great Room. Complainant provided photographs that she asserted illustrated workmanship deficiencies. Complainant asserted that she wants Respondent to replace the tile again, however, she wants another contractor to perform the work. Complainant did not reference any authority to establish that the photographs depict work that does not meet Registrar standards.

Complainant further asserted that Respondent damaged the cabinets and the wall during the replacement of the tile. Complainant provided photographs of damage to a wall and a cabinet, however, Complainant did not provide any evidence that the damage was caused by Respondent.

Complainant further testified at length that Respondent did not comply with the Written Directive because the tile replacement was not performed within the time frame specified within the Written Directive.

Regarding the issue concerning the cold air leaking into the attic from the air handlers, Complainant acknowledged that this issue was rectified by Respondent, however Complainant requested a “photo or a letter to prove” that the issue is resolved.

Complainant testified at length regarding a roof leak. Complainant testified that she moved into the home on September 3, 2019, and on September 23, 2019, the roof leaked. Complainant contacted Respondent and Complainant testified that four days later, Respondent sent a roofing contractor to inspect the roof. The roofing contractor did not find a leak.

Complainant testified that thereafter, she experienced a “severe” roof leak and asked Respondent to send a roofing contractor to inspect the roof again. Complainant testified that on October 15, 2019, the same roofing contractor inspected the roof, found the source of the leak, and performed a repair. The roof was water tested and Respondent advised Complainant that the area of the leak had been sealed. Complainant asserted that she did not receive any confirmation that the leak had been repaired.

Complainant testified that on July 30, 2021, the roof leaked again in the same area as the previous leak. Complainant contacted Respondent and at the time of the August 10, 2021 hearing, Respondent was in the process of repairing the leak. During the course of the hearing, Complainant wanted to continually address the leak that occurred on July 30, 2021, almost two years after the leak occurred that she addressed in her filed Complaint. However, the new leak is not encompassed within the previously filed Complaint, Respondent did not have any notice that Complainant wanted to address the new leak at the hearing, and the Registrar’s investigator did not inspect for the new leak. Therefore, the Administrative Law Judge advised that the scope of the instant hearing does not include the new leak.

Complainant asserted at hearing that Respondent is obligated “to come back until the customer is satisfied.”

Complainant further asserted that Respondent did not communicate with her from October 2020 to December 2020, and repeatedly expressed her frustration that Respondent did not comply with the time frame delineated in the Written Directive.

During cross examination, Complainant admitted that the damage to the baseboards was caused by her dog but continually asserted that additional damage was caused by Respondent during the tile replacement.

John Jeffrey’s Testimony

John Jeffrey, Respondent’s Warranty Technician, testified that after the jobsite inspection on September 23, 2020, and pursuant to the Written Directive, Respondent attempted to remediate the hollow sounding tile by “injecting them.” Respondent also contacted the subcontractor that installed the tile, Arizona Wholesale. Arizona Wholesale advised Respondent that the issue with the tile was due to moisture in the slab. While Respondent did not believe the issue was due to moisture in the slab, on October 12, 2020, and October 16, 2020, Respondent had the slab and surrounding soils tested for moisture by a geotechnical engineer. Mr. Jeffrey explained that Respondent needed to ascertain the cause of the hollow sounding tile prior to performing any additional remedial work, in order to prevent the issue form reoccurring.

After receiving the results from the testing that confirmed that moisture was not an issue, Respondent contacted Arizona Wholesale to perform the tile replacement. Arizona Wholesale refused to perform the repairs. Mr. Jeffrey expressed his belief that Arizona Wholesale refused to return to the jobsite because Complainant was a difficult person. Mr. Jeffrey expressed that in all of his experience, Complainant has been the “most difficult person he has ever worked with.”

Respondent hired a tile expert who advised not to treat the slab prior to the tile replacement.

Due to Arizona Wholesale’s refusal to perform work at Complainant’s home, Respondent was compelled to hire another subcontractor to complete the tile replacement. Mr. Jeffrey explained that the COVID 19 pandemic caused difficulty in the construction industry due to a shortage of labor and supplies. Respondent ultimately hired ILG to perform the tile replacement.

Mr. Jeffrey testified that the tile needed to be ordered for the entire downstairs tile replacement. Due to supply shortages, the tile arrived on November 23, 2020. Respondent contacted Complainant to schedule the tile replacement and on December 9, 2020, the parties participated in a Zoom meeting to discuss scheduling. Mr. Jeffrey testified that Complainant requested that the tile replacement take place in January 2021, due to her travel plans. Respondent scheduled ILG to perform the work from January 8, 2021, until January 20, 2021, in a detailed work schedule.

Mr. Jeffrey testified that Respondent hired a plumber to move all appliances and fixtures, and that movers were hired to move all furniture into a POD rented by Respondent for Complainant’s belongings. Respondent paid for Complainant and her family to stay at an Airbnb during the course of the work, plus an additional two days requested by Complainant. Mr. Jeffery further testified that Respondent took extraordinary containment measures because Complainant was concerned about dust from the tile removal and replacement. Respondent taped all windows, air ducts, vents, and covered cabinets and the kitchen island with plastic covering. Respondent, as well as the tile subcontractor, the field supervisor, third party inspectors, and tile expert were on site to ensure proper tile installation. Mr. Jeffrey testified that the tile height was checked with levels and squares and that the tile was laid straight and evenly and at the same height, and consequently, there were no “dips or bumps.”

Mr. Jeffrey testified that Complainant turned off the heat and would not turn it on for the workers who were on site for two weeks performing the tile replacement.

The parties spent a great deal of time addressing additional work that Respondent performed at the jobsite. These were not items specified in Complainant’s filed Complaint and not ordered to be addressed in the Written Directive. Consequently, these issues are outside the scope of the hearing and the parties were advised of such.

Mr. Jeffrey testified about the condition of the interior of Complainant’s home prior to the corrective work being performed. Mr. Jeffrey referenced photographs depicting damage to the wood baseboards caused by Complainant’s dog, damaged drywall and marks on the walls throughout the home, hand marks, and grime, all of which Respondent repaired as a courtesy. Mr. Jeffrey testified that Respondent painted the bottoms of the walls, cleaned the home, and that all the walls were in good condition after the corrective work was performed. Further, Respondent, the subcontractor, and the tile expert performed a walk-through of the home with Complainant after the corrective work was performed and there was no damage noted during that walk-through and Complainant did not mention any drywall issues at the walk-through. Mr. Jeffrey testified that after the work was performed, Complainant complained about uneven grout in some areas, and despite the grout being within industry standards, the subcontractor performed work on the grout to satisfy Complainant.

Mr. Jeffrey testified that the tile next to the refrigerator about which Complainant complained to the Registrar shows some normal separation of the grout due to settling and shrinking, and that there is no cut or crack in the tile, but rather a line within the pattern of the tile. Mr. Jeffrey testified that the Registrar did not order Respondent to make any repairs to this item of Complaint and that all of the corrective work was performed pursuant to the Registrar’s workmanship standards.

Philip Field’s Testimony

Philip Fields, Vice-president of Operations for Respondent, testified that Respondent experienced “challenges with the first tile contractor not wanting to go back due to difficulty with [Complainant.]” Mr. Fields also testified that Respondent had to ensure that moisture was not an issue, had to contract with a second tile contractor, and order the tile. Mr. Fields explained that supply chains were impacted by COVID, and that Respondent could not commit to a timeline for installation until the material was available. Mr. Fields testified that scheduling the work with Complainant was difficult. Mr. Fields acknowledged that the corrective work was not completed within the time frame specified in the Witten Directive, but asserted that given the circumstances delineated above, the corrective work was performed within a reasonable period of time.

Administrative notice is taken of Respondent’s prior License record on August 12, 2021. Such prior License record reflects that Respondent’s License No. 249191 was first issued on September 25, 2008, and is active. Such prior License record also reflects that there is only one open complaint, that being the instant Complaint, eleven resolved/settled complaints, and no prior discipline against Respondent’s license.

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

. . . .

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”).

. . . .

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 Vazzano 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. A.A.C. 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).

A.R.S. § 32-1154(A) provides:

The holder of a license or any person named on a license pursuant to this chapter may not commit any of the following acts or omissions:

. . . .

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.

(b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

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. . . .

A.A.C. R49108(A) provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”

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.

A.R.S. § 41-1001(22).

“Statutes shall be liberally construed to effect their objects and to promote justice.” A.R.S. § 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.

Regarding the Registrar’s charge of departure from or disregard of plans or specifications or any building codes, the credible evidence of record failed to establish any such violation by Respondent.

Regarding the Registrar’s charge of poor workmanship, the evidence of record established that the original tile installation performed by Arizona Wholesale was deficient. However, the credible evidence of record established that Respondent was diligent in investigating the source of the deficiencies by hiring a geotechnical engineer to conduct moisture tests, hiring a tile expert, and a replacement tile subcontractor to remedy the deficiencies. Respondent paid for Complainant’s family to stay elsewhere while the work was being performed, as well as for a plumber to disconnect appliances, rented a POD to store Complainant’s belongings, and took great care in containing dust and debris, as well as performing painting to the baseboards and the bottom of the walls. Investigator Cruz testified at hearing that in his opinion, the tile flooring was completed to the Registrar’s standards. Therefore, the Administrative Law Judge concludes based on the credible, probative, and substantial evidence presented at hearing that Respondent is no longer in violation of the Registrar’s workmanship standards and discipline is not warranted under the circumstances presented herein.

Regarding Respondent’s alleged failure to comply with the Written Directive, the Administrative Law Judge concludes based on the credible, probative, and substantial evidence presented at hearing that Respondent established valid justification for not complying with the Written Directive within the time period set forth in the Written Directive. The evidence established that Respondent did not delay in its commencement of its process to comply with the Written Directive, and that it was indeed a process from hiring a geotechnical engineer to perform moistures tests, to hiring a tile expert, securing a substitute tile contractor upon the refusal of the original tile contractor to return to the jobsite, to ordering the tile and waiting for its arrival, to accommodating Complainant’s travel schedule, all during a pandemic that resulted in labor and supply shortages. Complainant placed conditions upon Respondent’s performance of that work and prevented Respondent from accessing the jobsite from early December 2020 until January 2021, which further delated compliance.

Considering Respondent’s valid justification for not complying with the Written Directive, as well as the efforts put forth by Respondent in attempting to satisfy Complainant in regard to the specified items in the filed Complaint, and the fact that Respondent has been licensed since 2008 without any discipline against its license, are all factors 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 recommended that the Registrar dismiss Complaint Number 2020-04249 against Respondent.

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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, August 26, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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