ALJDEC - Licensing

2022A-02909-CHC-ROC · Registrar of Contractors · 2024-06-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Chris Irving,

COMPLAINANT,

Patterson Homes LLC,

dba Patterson Restoration,

License No. ROC 315545,

RESPONDENT.

No. 2022A-02909-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 18, 2023; April 15, 2024; May 1, 2024.

APPEARANCES: Attorney Justin V. Niedzialek represented Chris Irving.

Attorney Andrew R. DiCarlo represented Patterson Homes LLC dba Patterson Restoration.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: ROC hearing packet; Complainant’s Exhibits 1 through 31; Respondent’s Exhibits A through Q.

_____________________________________________________________________

FINDINGS OF FACT

Patterson Homes LLC dba Patterson Restoration (Respondent) is the holder of License No. 315545, KB-1 Dual Building Contractor, issued by the Arizona Registrar of Contractors (Registrar) on September 14, 2017.

In July 2021, Chris Irving (Complainant) and Respondent entered into a construction/remediation contract for work at Complainant’s residence, as authorized by the insurance company, and an additional scope of work specified by Respondent (per the parties’ agreement at that time). The insurance work was required after water damage in December of 2020 caused by a break in the refrigerator hose. The additional work that Complainant wanted done primarily involved the remodel of two bedrooms. Respondent’s employee, Jake Watzke, worked with Complainant on the scope of Respondent’s work.

Respondent worked on the project until sometime in February 2022; Complainant moved back into the home in February 2022. Mr. Watzke testified that Complainant did not want Respondent to come back on the project. Mr. Watzke testified that Respondent was substantially done with their work, mentioning that the kitchen cabinets, a barn door, a glass panel and some garage items were not yet done. Mr. Watzke indicated that Respondent was willing to, but did not want to, address the red marks on the shower ceiling until a roof leak was fixed. Mr. Watzke indicated that Complainant did not allow him to come back to take photographs (presumably for the insurance close out).

Respondent invoiced Complainant on Monday, February 14, 2022. On March 4, 2022 and March 22, 2022, Respondent reached out to Complainant regarding the end-of-job invoice and payment. Prior to Thursday, February 17, 2022, Respondent’s workers had permission to return by “Tuesday” and address some items.

On or about April 8, 2022, the Registrar received Complainant’s Licensed Complaint Form (Complaint) containing eleven (11) items. The Complaint indicated that the contract amount was $183,230.98 and that $70,000 had been paid; Complainant noted that $113,230.098 remained unpaid due to Respondent. The Complaint indicated that work had started on August 23, 2021, had ended on February 15, 2022, and remained incomplete.

After some rescheduling, ROC Investigator Steve Klein conducted a jobsite inspection on June 12, 2022. At that time, additional items were discussed and a further jobsite inspection took place on August 22, 2022.

On August 29, 2022, Investigator Klein issued a Written Directive (Directive) regarding the project. The Directive stated as follows:

DIRECTIVE REQUIREMENTS

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

Complaint #1 Floors were to be leveled in two bedrooms,

Inspector’s Observation: The tile floor area was raised with concrete, creating the carpet areas to be low with ramp like transitions. The Complainant provides a document from the insurance company with a contradictory statement, stating they never authorized the ramps or additional leveling. My opinion is the ramp like transition is not proper.

• Respondent shall complete project per the original contract agreement, plans, specifications, properly executed change orders and verbal agreements.

• Respondent shall correct by the appropriate means.

Complaint #2 Floor was to be leveled in the master closet.

• Respondent shall complete project per the original contract agreement, plans, specifications, properly executed change orders and verbal agreements.

• Respondent shall correct by the appropriate means.

Complaint #3 Garage is incomplete.

Inspector’s Observation: I verified the work in the garage was not completed.

• Respondent shall complete project per original contract agreement, plans,

specifications, properly executed change orders and verbal agreements

Complaint #5 Shower drain is off in the m/bath

Inspector’s Observation: Regarding the shower drain. No plan, specification, or properly executed change order, provided at time of inspection. N/A

However the Complainant states plumbing was moved in the walls, which would have required a building permit.

• Obtain the correct permit regarding the work and have the work inspected and approved by the proper governing authority.

Complaint #7 LED light flickers when turned on.

Inspector’s Observation: Verified

• Respondent shall correct by the appropriate means.

Complaint #8 Damage to garage floor.

Inspector’s Observation: I verified the damaged, which the Respondent agreed to correct.

• Respondent shall correct by the appropriate means.

Complaint # 9 Cabinets are scratched

Inspector’s Observation: Verified an end panel that needs to be refinished and the Respondent agreed to correct.

• Respondent shall correct by the appropriate means.

Complaint # 11 Oven doesn’t fit in the cabinet. Sticks out.

Inspector’s Observation: The Respondent stated they received the proper

dimensions and would make sure the J box is in the correct position.

Complaint #13 My cabinets are to be 42" as stated in the drawings which they are not they are 37 1/2" and from the header they are 41 3/4" so they are not what's approved per drawings

Inspector’s Observation: The cabinet dimensions are not per the plans provided by the Complainant at the jobsite inspection. There appears to be some reimbursements and changes per documentation that the Respondent supplied. I’m not sure what changes were made.

• Respondent shall complete project per original contract agreement, plans,

specifications, properly executed change orders and verbal agreements

Complaint #14 I am supposed to have a lazy Susan per Patterson's scope of work see exhibit B line 22 "add for lazy Susan".

Inspector’s Observation: Complainant provides documentation showing in hand writing that a lazy Susan was to be provided.

There appears to be some reimbursements and changes per documentation that the Respondent supplied. I’m not sure what changes were made.

• Respondent shall complete project per original contract agreement, plans,

specifications, properly executed change orders and verbal agreements

Complaint #15 My countertops are supposed to be standard height 36" which they are not they are at 35" please see exhibit C-1 C-2 C-3 C-4 C-5 where it states standard countertop height along with me telling Jake on Jan 15th that the countertops need to be at 36". Because they weren't 36”, in the exhibit C-6 last page Jake agreed to have the cabinets removed to level the floor, and when they were to reinstall, I told him that they still aren't correct. Jake advised me that he had spoken with the ROC already to see

what his options were and it was within tolerance. This is unacceptable as industry standards are 36" see exhibit C-2.

Inspector’s Observation: The Cabinet height appears to be approximately 36”, however the flooring was installed over concrete leveling, after the cabinets were installed, which brings the top to 35 and 1/4 inches” from the floor. Apparently there was a verbal agreement between the parties, to reinstall the cabinets on top of tile, which would have brought the top of the counter to the approximate height of 36”

• Respondent shall complete project per original contract agreement, plans,

specifications, properly executed change orders and verbal agreements

Complaint #19 We had soft closed drawers installed in the kitchen and they do not close all the all the way they stick out

Inspector’s Observation: Verified drawer adjustments are needed.

• Respondent shall correct by the appropriate means.

Complaint # 21 The Center Island is supposed to have 3 x 27" drawers in the center I have four 34" drawers see exhibit H-1 not built to approved drawings

Inspector’s Observation: I verified the cabinets installed do not match the cabinet layout plan provided by the Complainant at the time of inspection. In addition it appears power was ran to the island, which would require a building permit.

• Respondent shall complete project per original contract agreement, plans,

specifications, properly executed change orders and verbal agreements

• Obtain the correct permit regarding the work and have the work inspected and approved by the proper governing authority.

Complaint #22 The space between the cabinet next to the refrigerator to the island is supposed to be 3'-8" width I have 4'5" see exhibit H-1 not built to approved drawings

Inspector’s Observation: I verified the cabinets installed do not match the cabinet layout plan provided by the Complainant at the time of inspection.

• Respondent shall complete project per original contract agreement, plans,

specifications, properly executed change orders and verbal agreements

Complaint #23 The distance Between refrigerator is supposed to be 3'3 5/8 I have 3'8 1/4 not built to approved drawings see exhibit H-1

Inspector’s Observation: I verified the cabinets installed do not match the cabinet layout plan provided by the Complainant at the time of inspection.

• Respondent shall complete project per original contract agreement, plans,

specifications, properly executed change orders and verbal agreements

Complaint #24 The pantry wall to the center of the island is supposed to be 7'10" 3/16 I have 6'8" not built to approved drawings see exhibit H-1

Inspector’s Observation: I verified the cabinets installed do not match the cabinet layout plan provided by the Complainant at the time of inspection.

• Respondent shall complete project per original contract agreement, plans,

specifications, properly executed change orders and verbal agreements

Complaint #25 The distance from the sliding door wall is supposed to be 10'7 1/16" and I have 10'8 1/2 not built to approved drawings see exhibit H-1 H-2

Inspector’s Observation: I verified the cabinets installed do not match the cabinet layout plan provided by the Complainant at the time of inspection.

• Respondent shall complete project per original contract agreement, plans,

specifications, properly executed change orders and verbal agreements

Complaint #26 The width of the island is supposed to be 48" I have 24" and 12" the island is off 8" not built to approved drawings see exhibit H-1 H-2

Inspector’s Observation: I verified the cabinets installed do not match the cabinet layout plan provided by the Complainant at the time of inspection.

• Respondent shall complete project per original contract agreement, plans,

specifications, properly executed change orders and verbal agreements

Complaint #28 Dishwasher opening is to be 24" industry standard and I have 24 3⁄4 this is not correct. exhibit H-3

Inspector’s Observation: My opinion is 24” is the standard opening for a

dishwasher.

• Respondent shall correct by the appropriate means.

Complaint # 31 The bar area along with the Kitchen cabinets are 34" from the floor to the top of the cabinets, industry standard is 34 1/2" to 34 5/8" to give you 36" standard countertop height

Inspector’s Observation: My opinion is the distance between the floor to the top of the cabinets are reasonably close to the recommended dimensions and meets industry standards.

Apparently there was a verbal agreement between the parties to reinstall the cabinets on top of tile, which would have brought the top of the counter to the approximate height of 36”

• Respondent shall complete project per original contract agreement, plans,

specifications, properly executed change orders and verbal agreements

Complaint #33 Slab in the Bar area is Cracked in half and they tried to put it together which if you look at the pattern it goes with the same pattern that is in the kitchen sink area. Patterson put that slab in the bar area because the stove wouldn't support the broken piece. So, they substituted it. It's not acceptable.

Inspector’s Observation: I verified a crack on the bar counter top and two cracks at the stove area top.

• Respondent shall correct by the appropriate means.

Complaint #34 The two slabs we bought should have been more than enough to cover our kitchen. One slab alone was to be just for the island and per the drawings, because it's a big island, you can see what I have in some places is 8" short. That's why my kitchen doesn't match my approved drawings or scope. Again, this is not what I expected or bargained for and is completely unacceptable. See exhibit I-1. The math doesn't add up with the dimensions of the kitchen and the bar top.

Inspector’s Observation: The Complainant points out a line on the plan stating it’s a seam line for the counter top and was not satisfied with the 45 degree seam line in the corner. I believe the slashed line is showing a hidden cabinet line under the top, in addition my opinion is the 45 degree seam is acceptable. I verified the cabinet installation dimensions are different than the cabinet layout the Complainant provided at the jobsite inspection.

• Respondent shall complete project per original contract agreement, plans,

specifications, properly executed change orders and verbal agreements

Complaint #35 The floors throughout the house were to be leveled per Patterson's scope on 9/24/2021. Jake admitted he never walked the floors since the demo and tried laying the tile down without it. When they started doing the bathroom it wasn't laying right. I caught it and told Jake that the floor isn't correct. see exhibit J-1. As you see they are laying the tile down without the floors being leveled. You can see also in the picture that they already have the floor in the bedroom laid out. In exhibit J-2 I am pointing to Jake that the tiles in the bathroom aren't laying correctly they have lips on edges. I asked Jake if he leveled the floor and he said “no just using thin set.” I told him the insurance paid to have the floors leveled, so he had his tile guy rip up the tile and level the bathroom floor. see exhibit J-3. You can see that they ripped the tile out because Jake got caught not doing it right per scope. Partial pic from video

• Respondent shall complete project per the original contract agreement, plans, specifications, properly executed change orders and verbal agreements.

Complaint #36 Jake again tried to lay the tile down without leveling the floor in the house, per the scope, here is exhibit K-1 pic of partial video. See exhibit L-1

• Respondent shall complete project per the original contract agreement, plans, specifications, properly executed change orders and verbal agreements.

• Respondent shall correct by the appropriate means.

Complaint #37 Here is a partial picture from a video exhibit M-1 as I'm speaking with Jake walking through the house asking him why he is not leveling the floor in the master closet? We walked in there together and he looks and says "I'm not removing $16.000.00 dollar closets" and taking a chance of something happening to them!!! I told him that if he doesn’t do it, that the floor won't be right. He said that he can float the floor, that his guy was good, and I won't even know it. I said I'm not happy about that at all, and he said it will be fine don't worry. We moved to the two bedrooms and

discussed them. His response was that carpet is going down so it doesn't matter. I showed him where my floors were off 1/4" in some places and it won't be right. He said don't worry. I said my insurance paid to have the floors leveled. He said trust me it will be ok. So, when he had the opportunity to do the floors correctly and to scope, he didn't and put ramps in the three rooms telling me that is industry standards. I didn't ok the ramps for my house. This is unacceptable. I have video evidence of this.

• Respondent shall complete project per the original contract agreement, plans, specifications, properly executed change orders and verbal agreements.

• Respondent shall correct by the appropriate means.

Complaint #38 We move to the kitchen and I asked him what about the kitchen floor? He said we are just going to level the floor up to the cabinet its will be a 1/4" off in some places but you won't see it much because of the toe kick. He advised he could put the cabinets on the original floor or lay the tile down and put the cabinets on top of the new floor. I told Jake again that my floors were off in some places 1/4" to 1/2” in some places in the front room because there was a big crack and it buckled the floor a bit. I emailed Jake and insisted it be done correctly. See exhibits N-1 N-2 N-3 N-4 I'm telling Jake I'm not accepting the kitchen cabinets. He text me back that they were pulling the cabinets out and doing it the right way.

Inspector’s Observation: Apparently there was a verbal agreement between the parties, to reinstall the cabinets on top of tile, which would have brought the top of the counter to the approximate height of 36”

• Respondent shall complete project per the original contract agreement, plans, specifications, properly executed change orders and verbal agreements.

Complaint #39 But again, my kitchen isn't right because my counter tops aren't standard counter top height of 36". Once again Jake tried to cut corners instead of just doing it right per the drawings.

• Respondent shall complete project per the original contract agreement, plans, specifications, properly executed change orders and verbal agreements.

Complaint #40 The lights in the house are flickering off and on when you turn them on. I have been dealing with Jake and his electrician since November. Jake keeps telling me his electrician says that's “just the way it is”. In the first inspection, they told the ROC that I won't let them fix it. They had 4 months to try to fix it and did not do so (Nov-Feb).

Inspector’s Observation: Verified

• Respondent shall correct by the appropriate means.

Complaint # 41 In the scope it shows where Jake was already getting paid to level the floors and add the Lazy Susan See Exhibits P-1 P-2 P-3 P-4 P-5 P-6 P-7 P-8 P-9 P-10 P-11

Inspector’s Observation: Complainant provides documentation showing in hand writing that a lazy Susan was to be provided.

• Respondent shall complete project per original contract agreement, plans,

specifications, properly executed change orders and verbal agreements

Complaint # 42 Here is the Sublet Jake submitted to my adjuster Emily for

$19,244.81 for leveling the floors when in the previous Exhibits P-1 thru P11 it was already paid for. Jake is charging additional labor charges for carpet built up to the new height floor coverings in master bedroom

• Respondent shall complete project per the original contract agreement, plans, specifications, properly executed change orders and verbal agreements.

• Respondent shall correct by the appropriate means.

Complaint #43 Insurance adjuster DID NOT authorize ramps to be installed. Please see Exhibits Q-1 Q-2 Q-3. I was getting charged and paying for floor leveling, not ramps.

• Respondent shall complete project per the original contract agreement, plans, specifications, properly executed change orders and verbal agreements.

• Respondent shall correct by the appropriate means.

Complaint #44 In exhibit R-1 R-2 R-3 shows that Emily (my insurance adjuster) at Liberty Mutual was waiting on Jake for an update on the sublet. I called and told her about the flooring and how it needed to be leveled so she was aware of it, and again nothing in there about putting RAMPS in any scope of work it was supposed to all be leveled.

• Respondent shall complete project per the original contract agreement, plans, specifications, properly executed change orders and verbal agreements.

• Respondent shall correct by the appropriate means.

Complaint #45 In these exhibits S-1 S-2 S-3 S-4 S-5 S-6 shows that Jake knows that I have spoken with my adjuster about leveling the floors throughout the house and that the Master closet and the 2 bedrooms were not done correctly. She asked me if I had so called ramps before? I said no, and Emily advised that if I didn’t have them before, then I shouldn't have them now. Emily advised my whole house should be leveled, something Jake and Patterson neglected to do. In the email he didn't tell her that he put "RAMPS IN" is says "carpet build up" in his $19,000.00 sublet. THIS AGAIN WAS NOT AUTHORIZED to put these RAMPS in.

• Respondent shall complete project per the original contract agreement, plans, specifications, properly executed change orders and verbal agreements.

• Respondent shall correct by the appropriate means.

Complaint #46 In these exhibits T-1 T-2 T-3 T-4 and the pictures I sent over in the earlier email proves I did not approve the shower drain and states specifically DO NOT TILE THE SHOWER. I wanted the shower drain moved and was even willing to pay extra for it, but Jake went ahead and did what he wanted by not moving it. It was unacceptable then and unacceptable now. There is also red marks coming through the ceiling in the shower and the caulking around the edges around the ceiling.

Inspector’s Observation: No plan, specification, or properly executed change order provided at time of inspection. (N/A) In addition The Complainant stated plumbing was moved in the walls, which would require a building permit.

• Obtain the correct permit regarding the work and have the work inspected and approved by the proper governing authority.

Regarding the red marks in the ceiling.

• Respondent shall correct by the appropriate means.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint #4 Countertop is missing the subdeck

Inspector’s Observation: It doesn’t appear a subdeck is required. The Complainant felt the deck would bring the counter tops up to 36”

Complaint #6 Bar counter top is missing the subdeck

Inspector’s Observation: It doesn’t appear a subdeck is required.

Complaint # 10 Dishwasher falls out because it’s not attached.

Inspector’s Observation: According to the parties this is a temporary installation while waiting on a back ordered unit.

Complaint #12 Attached are the drawings or scope of work along with the text message that was approved on August 18, 2022. It has the dimensions of what I am supposed to have in my Kitchen. see exhibit A

Inspector’s Observation: This is not a Title 32 violation to which I can inspect or make a ruling" statement.

Complaint #16 The kitchen sink is a 33" farm sink that was bought specifically for 36" standard countertop height See exhibit D-1 and D-2. Thus, Jake was aware again that the countertops needed to be 36" as my sink is now off. It might be ADA compliant, but I'm not handicapped and this was not installed properly as per manufacturer standards (see exhibit D-3 and D-4). I also have a water leak under the sink.

Inspector’s Observation: The sink is a under counter mounted type of sink, it will not be the same height as the countertop in addition it appears to be installed per the paperwork provided by the Respondent. I did not verify a plumbing leak.

Complaint #17 The hood insert over the stove is to be 24" for electric and 30" for gas stoves mine was set at 27" please see exhibit E-1 E-2

Inspector’s Observation: The hood height meets industry standards.

Complaint #18 The distance between the bottom of my cabinets and the counter tops are to be 18" and they are 19" not industry standards see exhibit F-1

Inspector’s Observation: My opinion is the distance between the bottom of the cabinets and the counter meets industry standards.

Complaint # 20 The plumbing under the sink is to be at 28" mine is not due to the sink being at 33" high from the floor up see exhibit G-1

Inspector’s Observation: I am not aware of any under sink plumbing dimension requirements.

Complaint #29 Oven cabinet-Left side is 25 1/2" the right side is 26 1/4" they are not even see exhibit H-4

Inspector’s Observation: The difference in measurements is due to tile on one side.

Complaint #30 The toe kick is 3 5/8" and is supposed to be 4 1/2" see exhibit H4

Inspector’s Observation: My opinion is the measurement of the toe kick is reasonably close to the recommended dimensions and meets industry standards.

Complaint # 32 I bought two slabs of Quartzite Taj Mahal stone slabs 120" X 71" X 3 CM on 9/16/2021. Jake knew of the purchases due to Chelsea calling him up and getting the company credit card so we could get the Patterson discount, but Jake didn't want to do that so Chelsea called me back and I gave her my Credit card to pay for it. She called The Yard back and bought the slabs with my Credit card. Between the time they picked up the slabs and moved to the fabricator one of the slabs broke. Jake was aware of this but didn't tell us. Jake called the gentleman that was at the house that day and told him that one of the slabs broke, the gentleman told Jake there is nothing we can do, to get over it, and we will make due to what we have to work with. The gentleman didn't know my wife was standing there waiting to ask him a question because his back was turned to her as he was looking out the garage speaking to Jake.

Inspector’s Observation: This is not a Title 32 violation to which I can inspect or make a ruling" statement.

The Registrar set September 29, 2022 as the deadline for Respondent’s compliance with the Directive.

On September 20, 2022, Respondent reached to Investigator Klein for an extension of the time frame with information about the obtaining of a permit and the City inspection regarding Directive Items #5, #21, and #46. Respondent noted the following:

As you are aware, Respondent and Complainant met with City of Phoenix inspectors Monday (9/19/2022) at 9:00am. At the time, Respondent obtained the permits it believed to be correct per the Written Directive items: #5, #21, #46, and requested the final inspection on the foregoing. Based on the representations made by Complainant to the City of Phoenix prior and during the inspection, Respondent has been instructed to obtain a "CTR" permit for the work at Complainant's Property. The "CTR" permit requires a full set of building plans for the renovations performed including the completion of numerous "building code upgrades" to Complainant's existing property which were noted by the inspectors. I believe that Mr. Oenning provided that list to you via email yesterday. The drafting of the plans will require that Respondent retain architectural and engineering firms to complete the plans for submission with the City of Phoenix, which Respondent's emails to Complainant (RoC cc'd therein) have shown are scheduled to visit Complainant's property from Wednesday - Friday (9/21-9/23) if access is granted. Respondent expects to submit the plans with the City of Phoenix timely after completion. Unfortunately, the timeframe for processing this particular permit could take up to 6-8 weeks for final approval; per the City of Phoenix's own verbal estimate. Respondent has provided a written inquiry for the timeline presented by the clerk at the City but no response has been received yet (See Attached). Respondent has inquired, but there is no option for the Respondent to expedite this process. This timeline is outside of the Respondent's control due to the system implemented by the City of Phoenix. As such, Respondent is hereby requesting an extension for compliance to the Written Directive for a period of ninety (90) days from the current deadline so that it may obtain the necessary permits as instructed by the Registrar. Please let me know if you need a formal document request of the foregoing or anything further from myself. Thank you for your time and attention to this matter.

On May 23, 2023, Investigator Klein issued a Directive Compliance Inspection report, indicating that Respondent was not in compliance with the Directive.

Investigator Klein forwarded the cases to ROC legal Department for issuance of a Citation.

On June 9, 2023, the Registrar issued a Citation in this matter, charging Respondent with possible violations of: Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code Section R4-9-108; and, Ariz. Rev. Stat. § 32-1154(A)(22).

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code Section R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

On June 23, 2023, Respondent filed its Answer, denying the charges and arguing that it made diligent efforts to comply with the Directive but was “prevented access from conducting the [corrective] work in the manner, and pursuant to the means and methods, it saw necessary to comply ...”. Respondent noted that it had attempted to unilaterally terminate its work on the project on February 18, 2022 and, thereafter, that Complainant had terminated Respondent in February 2022. Finally, Respondent indicated that it provided a final invoice in the amount of $139,063.57 to Complainant on February 14, 2022.

The Registrar noticed the matter for hearing.

At hearing, Investigator Klein discussed his involvement in the matter, highlighting the two job site inspections and his Directive findings. Investigator Klein noted that the workmanship issues he found included issues regarding the kitchen layout and specifications; Investigator Klein further noted that many of the Directive items had been completed with the exceptions of the floor level and the cabinet/measurements issues. Complainant had provided to him a “cabinet layout plan” asserting that this was the “approved” plan, although the parties indicated to Investigator Klein that there had been some verbal changes. Investigator Klein indicated that, as to items determined to be remaining uncorrected, it was important to be able determine whether the item complained of had been completed as per the contract, per the plans or per any verbal changes. Investigator Klein noted that, as to the discussed or asserted verbal changes, Respondent had indicated to him that the changes were all verbal changes and agreements at the times of those discussions by the parties.

Regarding the leveling of floors in the home, Investigator Klein had been shown a letter from the insurance company which indicated the insurance company had not approved any ramps or “additional” floor leveling.

A review of the September 13, 2021, scope of work approved by the insurance company documents that “floor leveling cement” is to be placed in the following rooms or areas where tile had to be taken up off the cement slab: kitchen (#53), pantry (#66), laundry (#82), entry (#97), dining room (#107), living room (#116), hallway (#134), bathroom (#162), master bedroom (#186), master bathroom (#213), water closet (#241), and shower (#280). The insurance scope does not provide for floor leveling cement in the master bedroom closet and does not include “building up” of any floor area that was lower than the existing cement slab.

Respondent provided its September 21, 2021, estimate for new floor coverings in the home including the use of self-leveling “setting” material, i.e., the underlayment, needed in areas where new tile was being installed. This estimate also mentions a two hour labor charge for carpeting to be laid in the mater closet, stating: “[r]eflects additional labor charge for carpet build up to new height of floor covering in master bedroom.”

New tile being laid in multiple areas of the home resulted in variances in floor levels at the junction between certain rooms and adjacent areas and also affected the kitchen regarding installation of the cabinets and/or island and the resulting counter height.

At hearing, Complainant presented arguments about certain remaining complaint items: the kitchen cabinet layout measurement inaccuracies; floor leveling and the “ramp” in the bedrooms (transitioning from carpet), including the master bedroom to the master closet; the shower drain and window; and the lazy susan.

Regarding the kitchen layout inaccuracies and the missing lazy susan, Complainant relied on a layout plan provided by to him by Chelsea Wagner of Homegrown Interiors on August 18, 2021. Complainant’s position is that was the “approved” layout and the cabinets and layout were not built to the approved plan. Complainant argued that he never received any other document with measurements for the kitchen layout.

At hearing, Ms. Wagner testified that the August 18, 2021 layout drawing was the result of discussions with Complainant at the beginning of their project regarding the kitchen design.

On September 28, 2021, Ms. Wagner emailed Complainant the final design representations that had been created by Ruben Romero Sanchez (the custom cabinet maker) after Complainant, Ms. Wagner, and Mr. Sanchez met on site and discussed the kitchen design and layout. Ms. Wagner noted that, as part of that process, they lay tape down on the floor for the cabinet locations so that they can see the pathways and flow of the kitchen, and Mr. Sanchez then installs the cabinets per the taped layout. Ms. Wagner testified that Mr. Sanchez’s design representations do not include specific measurements; his design representations incorporate Ms. Wagner’s drawings. As an example of the process for the kitchen design, those meetings resulted in agreement that, if a lazy susan were to be installed in the corner, there would not be room for the kitchen sink to be able to be centered under the kitchen window; the parties then agreed they wanted the kitchen sink to be centered under the window.

At hearing, Mr. Sanchez testified regarding pre-build meetings with Complainant and his wife, and Ms. Wagner to discuss the kitchen design and layout. Mr. Sanchez testified that he did not see any “approved” plans and that, after these pre-build meetings, he creates the drawings he uses to custom build the cabinets. Mr. Sanchez also indicated that, as part of that process, they lay tape down and place marks on the floor for the cabinet locations and he then installs the cabinets per the taped layout. Mr. Sanchez testified that, after he had installed the cabinets, Complainant had raised an issue about the height; as a result, Mr. Sanchez pulled the cabinets and later reinstalled them. Mr. Sanchez testified that he had subsequently gone to the residence to fix the drawer glides and some panel scratches near the dishwasher and the oven. Mr. Sanchez testified that when they discussed that building in the lazy susan (in the corner cabinet) would cause the sink/cabinet to be off-center of the window, Complainant’s wife had decided she wanted the sink centered under the window.

Ms. Wagner testified that, at the time of the final payment on the kitchen design in March of 2022, Complainant had not raised any issues with her regarding the kitchen design or layout.

Regarding the floor leveling, Complainant relied on the insurance scope of work and the Respondent’s additional scope of work. Complainant testified that Respondent did try to bring the master closet floor issue within the insurance scope but the insurance did not allow that and, further that Respondent had offered to “float” the floor in the closet. Complainant testified that Respondent “leveled” the transition in the two bedrooms but, at the master closet, had put in a “shingle” type transition ramp.

Regarding the shower drain, this issue was intertwined with a change in the location of the plumbing within the walls (centering the faucets) and the after-the-fact requisite permit requirements. Complainant argued that Respondent should not have tiled the shower until the drain issue was resolved. Complainant argued that the window that Respondent installed was not the planned or approved window, was bigger than the approved window, and resulted in the lintel not being appropriate. Complainant argued that a bigger window was never discussed with him and he had not approved a bigger window. Complainant testified that Respondent had begun work on the window but did not finish because the window was not being installed correctly “from the outside;” regarding this installation, Complainant stated that he had not instructed the workers to leave.

Ms. Wagner also designed the master bathroom shower. At hearing, Ms. Wagner did not recall any specific discussions regarding the design or the build out, but recalled discussion(s) about the faucet being centered and understood that led to a concern about the drain. Ms. Wagner believed the window issue was likely discussed between Respondent and Complainant and, at this time, only knew that a different window had been installed.

Apparently before the time at which the floor level in the master bedroom closet was being discussed as a complaint item, Complainant had already the California closet cabinet system installed. At hearing, Investigator Klein indicated that Complainant did not want to have the closet system removed; Respondent’s witness testified that he did not want to remove the closet system due to possible damage that might be caused.

Complainant testified that Saltillo tile had been removed from the master bedroom and master closet floor, and that the new flooring in the bedroom was plank flooring while the new flooring in the closet was carpet. Complainant testified that Respondent told him they would not take out the California closet system to raise the closet floor because it would result in the California closet system not fitting back into the closet.

In Closing, Respondent argued there were justifications to be considered in this matter. Respondent argued it was prevented from being able to correct the Directive items. Respondent argued that Homegrown Interiors had determined the kitchen layout to be used and that the kitchen cabinets/island were installed per the parties’ on-site discussions, which essentially became the final kitchen layout. Respondent’s position is that there should be no discipline on its license.

In Closing, Complainant argued that Respondent did a poor job which left workmanship issues on the project. Complainant argued that there never before had been a “ramp” at the master closet and that, while the other two transitions were “fixed,” the master closet transition was not corrected. Complainant argued that he had “approved” the August 21, 2021 kitchen layout and no other layout, and that the kitchen was not installed per those “approved” plans; Complainant acknowledged discussions with Ms. Wagner about the layout but argued that he had not approved any details from those discussions. Complainant argued that the master shower drain was inappropriate and not done correctly, and the tile should not have been laid until it was corrected. Complainant argued that Respondent had refused to install the lintel per Complainant’s instructions. Finally, Complainant argued that Respondent’s license should be disciplined.

Directive items #1, #2, #35, #36, #37, #42, #43, #44 and #45 relate to floor leveling and “ramps” (at the bedrooms). The hearing record documents that the insurance company specified the residential areas requiring floor leveling; the hearing record documents that the insurance company did not authorize any “additional” floor leveling or any “ramps.” The hearing record documents that Respondent leveled those specifically authorized areas and also, to appease Complainant, offered to level the master closet floor. Neither party stated that Complainant agreed to level the floor in the master closet to resolve that issue. The hearing record demonstrates that Respondent had installed a transition in the two bedrooms; in his Closing, Complainant indicated those two were “fixed.” Complainant continues to dispute the workmanship as to the transition in the master closet. The ROC Investigator opined that the installed “ramp like transition is not proper.”

Directive items #5 and #46 relate to the master shower drain and red marks on the ceiling. The hearing record is clear that a permit was pulled to address the plumbing being moved without a permit; however, the hearing record is not clear regarding whether the drain was included in the permit subsequently pulled and/or whether the drain was, thus, corrected as would apparently be demonstrated by the City’s “conditional pass.” The hearing record does not demonstrate whether the alleged roof leak was fixed and, thereafter, the red marks subsequently corrected by painting the ceiling.

Directive items #13, #15, #21, #22, #23, #24, #25, #26, #31 and #39 relate to the kitchen layout. While Complainant’s position is that the August 18, 2021 layout was the final plan that he had “approved,” the hearing record is clear that, at the on-site meetings between Ms. Wagner, Mr. Sanchez, Mr. Watzke and Complainant and his wife, the actual layout which was going to work and was going to be done was discussed and that specific taping and measurements were made at those meetings so that the custom-built cabinet and island could be built according to the space available and would fit in the kitchen. In preparing his Directive, Investigator Klein was unaware of any of the verbal discussions and verbal agreements with regard to the kitchen layout; the sworn testimony at the hearing demonstrated that the August 18, 2021 layout was not the final layout or plan with regard to the kitchen installation.

Directive items #14 and #41 relate to the lazy susan. The hearing record demonstrated that Complainant’s wife decided to forego the lazy susan in a corner cabinet due to determining the sink would be centered under the window. The hearing record demonstrates that there was a verbal agreement to delete the lazy susan.

Administrative notice is taken of Respondent’s License record with the Registrar, which reflects that this case is the only open case regarding issues with Respondent. The Registrar’s record documents that, from 2023 cases, Respondent resolved or settled two cases and, from a 2023 case, had that one case result in discipline on Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code section R2-19-119.

In this case, Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. § 41-1092.07(G)(2); Ariz. Admin. Code Section R2-19-119(A) and Ariz. Admin. Code Section R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

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

7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

8. Construction is not a perfect art and, normally, contractors must be allowed an opportunity to correct poor workmanship before their licenses may be suspended or revoked as a result of a failure to comply with workmanship standards.

9. Based on the hearing record, the Administrative Law Judge concludes that the transition ramp in the master closet in Complaint item #2 is not appropriate as to workmanship. Further, that the red marks in Complaint item #5 were not corrected. Therefore, based on the foregoing, Respondent failed to complete these two specific items as had been determined were required by Investigator Klein to be corrected pursuant to the May 23, 2023 Directive, by the stated completion date. The Administrative Law Judge concludes that two above-specified Investigator-determined workmanship items existed with regard to the project and, thus, Respondent is in violation of Ariz. Rev. Stat. § 32-1154(A)(3), specifically Ariz. Admin. Code Section R4-9-108 for failure to perform all work in a professional and workmanlike manner and in violation of Ariz. Rev. Stat. § 32-1154(A)(22) for failure to take appropriate corrective action to comply with the Directive by the Directive deadline.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge recommends that the Registrar impose discipline on Respondent’s ROC License 315545 as follows: a one-business-day suspension on the effective date of the Registrar’s Order in this matter.

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 Administrative Law Judge Decision. If the licensee accepts the Administrative Law Judge Decision, the Administrative Law Judge 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, June 25, 2024.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

Registrar of Contractors

Legal Department

[email redacted]

Justin V. Niedzialek, Esq.

DUNN DESANTIS WALT & KENDRICK, LLP

[email redacted]

Andrew R. DiCarlo, Esq.

[email redacted]

Courtesy Copy to

Steve Klein

[email redacted]

By: OAH Staff