ALJDEC - Licensing

2022A-02429-CHC-ROC · Registrar of Contractors · 2023-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lyle E. Wurtz,

COMPLAINANT,

v.

JDM Remodel Construction, LLC

DBA:

License No. ROC 329132,

RESPONDENT.

No. 2022A-02429-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 8, 2023

APPEARANCES: Complainant Lyle E. Wurtz appeared on his own behalf with his mother, Beverly Fauth, and friend and neighbor, Nancy Meyers. John Morris appeared on behalf of Respondent JDM Remodel Construction, LLC. Arizona Registrar of Contractors Investigator Cliff Corlett appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

JDM Remodel Construction, LLC (“Respondent”) is the holder of License No. 329132 issued by the Arizona Registrar of Contractors (“Registrar”). John Morris is Respondent’s qualifying party and manager.

On or about October 11, 2021, Lyle Wurtz (“Complainant”) contracted with Respondent for Respondent to perform the work necessary to enclose an existing patio. The contract price was $13,000.00. Complainant paid Respondent $9,000.00 toward the contract price.

On or about March 25, 2022, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Bob McQuien. After a May 23, 2022 jobsite inspection, Investigator McQuien drafted Jobsite Inspection Notes that set forth the following:

Jobsite General Notes: Jobsite Inspection conducted on 05-23-2022 @ 1200 hrs. Complainant was present Respondent was present initially. Interview conducted utilizing Agency provided audio recorder, Olympus DM-720. Photographs taken using agency provided camera, Canon ELPH-180.

Complaint Item 1: We asked for two [2] sliding glass door to be exactly like the ones in the dining room & bedroom. When they arrived, they were not the same.

Investigator’s Observation: Plans given to Respondent noted #11: Sliding Glass Door [Match existing as possible] after install Complainant requested exact match. Disagreement ensued with price difference and payment scheduling. Work stopped. Complainant later replaced handle assemblies on installed doors and complained to Investigator that one of the Sliding Doors will not close or lock properly after alteration of work product.

Complaint Item 2: Stucco on outside with door is not acceptable.

Investigator’s Observation: Work not complete. Upon arrival at scheduled Jobsite Inspection Complainant refused entry to Respondent and complained about Respondent wearing a firearm. Respondent refused to leave his firearm in his vehicle at Complainants request. Complainant said they do not want Respondent in their home and do not feel safe.

Respondent advised in an email received by this Investigator that he had been wearing his firearm throughout the project and that this is the first time there had been an issue.

Complaint Item 3: Inside walls is not acceptable.

Investigator’s Observation: Work not complete. Upon arrival at scheduled Jobsite Inspection Complainant refused entry to Respondent and complained about Respondent wearing a firearm.

Respondent refused to leave his firearm in his vehicle at Complainants request. Complainant said they do not want Respondent in their home and do not feel safe.

Respondent advised in an email received by this Investigator that he had been wearing his firearm throughout the project and that this is the first time there had been an issue.

Complaint Item 4: Outside doorframe is not acceptable.

Investigator’s Observation: Work not complete. Upon arrival at scheduled Jobsite Inspection Complainant refused entry to Respondent and complained about Respondent wearing a firearm.

Respondent refused to leave his firearm in his vehicle at Complainants request. Complainant said they do not want Respondent in their home and do not feel safe.

Respondent advised in an email received by this Investigator that he had been wearing his firearm throughout the project and that this is the first time there had been an issue.

Complaint Item 5: Argument about the outside door was not agreeable.

Investigator’s Observation: Door utilized was Complainants door moved from another location and attempted to be repurposed.

Complaint Item 6: He demanded to be paid 90% of the job before he would come back to finish.

Investigator’s Observation: After change order for exact match, special order was going to have to be placed.

Complaint Item 7: The entire job was very unprofessional.

On May 24, 2022, Investigator McQuien issued a Dismissal Letter to Complainant that stated the following:

The Registrar received and investigated your complaint. The Registrar determined that there is not sufficient evidence to find that the Respondent Failed to meet minimum workmanship standards per A.A.C. R4-9-108.

Plans given to Respondent noted #11:Sliding Glass Door [Match existing as possible] after install Complainant requested exact match. Disagreement ensued with price difference and payment scheduling Work stopped.

Upon arrival at scheduled Jobsite Inspection Complainant refused entry to Respondent and complained about Respondent wearing a firearm Respondent refused to leave his firearm in his vehicle at Complainants request Complainant said they do not want Respondent in their home and do not feel safe.

The Registrar determined that the Respondent’s work was subject to neglect, modification, or abnormal use. For that reason, the Registrar is prohibited from issuing a citation for the Respondent’s alleged poor workmanship or the alleged departure from applicable building codes. See A.R.S, § 32-1155(D) (2).

Complainant later replaced handle assemblies on installed doors, alteration of work product has occurred.

Therefore, the Registrar will not issue a citation in this matter. The complaint is hereby dismissed.

On or about June 29, 2022, Complainant contacted the Registrar’s Legal Department to request that the Complaint be re-opened. Thereafter, the Registrar re-opened the Complaint and on or about July 22, 2022, assigned the Complaint to Investigator Cliff Corlett due to the fact that Investigator McQuien had retired.

On August 10, 2022, Investigator Corlett conducted a Jobsite Inspection at which he inspected the original items of Complaint, as Complainant had not filed an addendum to the Complaint. Investigator Corlett did not issue a Written Directive to Respondent. Investigator Corlett’s Jobsite Inspection Notes state the following:

Jobsite General Notes: Case 2022-02429 was reopened on 07/22/22. A 2nd onsite inspection was scheduled and conducted on 08/10/22.

The Respondent was not present.

Per the 07/25/2022 email to the Registrar, the Respondent stated that the stucco, inside walls and 36-inch door were not complete and work stopped after a financial dispute arose with the homeowner.

The Respondent is also claiming an unsafe working environment.

The Respondent also stated,” I DO NOT FEEL COMFORTABLE HAVING ANY OF MY SUBS, MY CREW OR MYSELF AT THE JOBSITE ANY FURTHER...”

Both of the Registrar of Contractors (ROC) onsite inspections verified there was incomplete and or substandard work.

Due to the adversarial relationship between the parties, the ROC will not issue a Written Directive in this case, rather the case is being sent directly to the ROC Legal Department for review and Citation.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

The below ROC Case Note are provided to both parties for reference to the ROC observation(s) verification of complaint items and what the ROC directive would be if a Written Directive had been issued.

Compliance Item: 1 - We asked for two sliding glass door to be exactly like the ones in the dining room & bedroom. When they arrived, they were not the same.

Investigator’s Observation: Complainant has replaced the door handles on both new sliding glass doors. Per A.R.S. 32-1155-C,(2), the contractors work has been subject to modification. The Registrar shall not issue a citation for work that has been modified.

NO CONTRACTOR ACTION REQUIRED.

Compliance Item: 2 - Stucco on outside with door is not acceptable

Investigator’s Observation: Stucco on addition is acceptable except excess stucco on masonry units.

RESPONDENT SHOULD PROPERLY REMOVE ALL EXCESS STUCCO FROM THE EXISTING MASONRY AND EXISTING HOUSE STRUCTURE.

Compliance Item: 3 - Inside walls is not acceptable.

Investigator’s Observation: Inside drywall texture is inconsistent. There is a hairline drywall crack below new windowsill, and repairs are needed at the new exit door.

RESPONDENT SHOULD CORRECT THESE ITEMS BY APPROPRIATE METHODS.

Compliance Item: 4 - Outside doorframe is not acceptable.

Investigator’s Observation: Single glass entry door and frame. Door binds at top and side of frame. Door hinges improperly overcut, hinge screws crooked and striped out. No threshold installed, interior door casing not installed. Respondent drilled hole(s) in masonry that needs to be repaired.

RESPONDENT SHOULD PROPERLY COMPLETE AND CORRECT ALL ISSUES WITH THIS DOOR INSTALLATION.

+++++++++++++++++++++++++++++++++++++++++++++++++++

Compliance Item: 5 - Argument about the outside door was not

agreeable.

Investigator’s Observation: This is a statement not a specific workmanship issue.

Compliance Item: 6 - He demanded to be paid 90% of the job before he would come back to finish.

Investigator’s Observation: This is a statement not a specific workmanship issue.

Compliance Item: 7 - The entire job was very unprofessional.

Investigator’s Observation: This is a statement not a specific workmanship issue.

Investigator Corlett testified that he did not issue a Written Directive due to the fact that there is a great deal of hostility between the parties and both parties had safety concerns. Consequently, on August 23, 2022, Investigator Corlett 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)(1), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), and A.R.S. § 32-1154(A)(12), namely, A.R.S. § 32-1158.

Investigator Corlett testified consistently with the findings contained in his Jobsite Inspection Notes. Investigator Corlett testified that Respondent’s contract does not contain the required advisement to property owner of the right to file a written complaint with the Registrar.

Complainant testified that he asked for sliding glass doors “as close as possible” and that Respondent requested additional monies. Complainant further testified that Respondent’s workmanship was poor and that he “just wanted the job done correctly.”

Nancy Meyers, Complainant’s neighbor and friend, testified that there is an inch gap around the door and that there is stucco on the door frame and on the bricks.

Mr. Morris testified regarding the two sliding glass doors, that the draftsman who drew the plans for Complainant indicated on the plans that the sliding glass doors were to be “as close as possible,” not an exact match. Mr. Morris testified that the doors themselves matched, however, the handles did not. Mr. Morris testified that he explained to Complainant that if he wanted exactly the same doors, it would cost an additional $6,000.00, and a change order would need to be executed. Complainant declined to execute a change order.

Mr. Morris suggested that Complainant could exchange the door handles with universal door handles in order to have matching door handles throughout. Mr. Morris testified that after he made such suggestion, Complainant began to argue with him.

Mr. Morris testified that the stucco work was performed by a licensed subcontractor and that he is aware of the overages which would have been rectified during the performance of finish work, and that the project was not completed due to the breakdown in the parties’ relationship. Mr. Morris explained that the volatility in the relationship escalated and he was not comfortable returning to the project.

Mr. Morris did not contest the items identified by Investigator Corlett that were in need of corrective work or completion, however, asserted that the work would have been competed during the finish stage of the project. Mr. Morris testified that he was denied access to the jobsite because he wore a firearm, however, he had previously worn a firearm the entire time he worked on the project and it had never been an issue for Complainant until Complainant insisted on the exact same door, which had not been specified on the plans for the project.

Complainant refused to allow Mr. Morris access to the jobsite, conditioning work upon Mr. Morris not wearing his firearm.

Administrative notice is taken of Respondent’s prior License record on February 21, 2023. Such prior License record reflects that Respondent’s License No. 329132 was first issued on June 2, 2020, and is active. Such prior License record also reflects that there is only one open complaint, that being the instant Complaint, and no prior complaints and no 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”).

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.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. 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 preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

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:

Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

. . . .

3. Violation of any rule adopted by the registrar.

. . . .

12. Failure in any material respect to comply with this chapter.

A.R.S. § 32-1158(A) requires that:

Any contract in an amount of more than $1,000 entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information:

1. The name of the contractor and the contractor's business address and license number.

2. The name and mailing address of the owner and the jobsite address or legal description.

3. The date the parties entered into the contract.

4. The estimated date of completion of all work to be performed under the contract.

5. A description of the work to be performed under the contract.

6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.

7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.

8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.

9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1162, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten-point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.

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.

“Statutes shall be liberally construed to effect their objects and to promote justice.” The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

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 charges of abandonment and poor workmanship, the credible evidence of record established that only minor work remained and Respondent would have performed the work at the finish stage of the project. However, Complainant placed conditions upon Respondent’s performance of that work and precluded Respondent from accessing the jobsite. Further, the volatile relationship between the parties rendered the jobsite unsafe.

Complainant’s dealings with Respondent and the fact that Respondent has no other complaints against the license, are 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.

Although discipline is found not to be warranted in this case, Respondent has been put on notice regarding Respondent’s noncompliance with A.R.S. § 32-1158(A) and should amend its contracts to comply with all required elements.

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 2022-02429 against Respondent.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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.

Done this day, February 22, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Martín Quezada, Director

Registrar of Contractors

[email redacted]

JDM Remodel Construction, LLC

[email redacted]

Lyle E. Wurtz

[email redacted]

Cliff Corlett

[email redacted]

By: OAH Staff