ALJDEC - Licensing
2023A-04340-CHC-ROC · Registrar of Contractors · 2024-01-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kevin Cooke,
COMPLAINANT
v.
Driller Custom Homes Inc.
License No. ROC 209954,
RESPONDENT
No. 2023A-04340-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 4, 2024
APPEARANCES: Justin Fouts, Esq., appeared on behalf of Complainant. Megan Schandle, Esq. appeared on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Amy M. Haley
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein. Additionally, Complainant’s Exhibits 12 and 13 were admitted and Respondent’s Exhibits 1, 4, 5, 6, 7, 10, 12, 20, and 22 were admitted.
_____________________________________________________________________
FINDINGS OF FACT
Driller Custom Homes Inc. (Respondent) is the holder of License No. 209954 issued by the Arizona Registrar of Contractors (Registrar).
On or about February 16, 2022, Complainant entered into a contract with Respondent for construction of a new home on a vacant lot.
On or about April 12, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the complaint to Investigator Robert Di Alto. After a jobsite inspection, Investigator Di Alto issued a written directive to Respondent that, in relevant part, 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 10/23/2023.
RESTRICTIONS
• You may not perform or hire other contractors to perform work that is outside the scope of your license.
• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1- Floor tile was improperly installed by an unlicensed subcontractor under the direction of the general contractor. A licensed tile contractor was contacted to assess the workmanship and submitted a bid to the builder for complete replacement. It was not recommended to attempt to fix the work. Contractor refused to use the licensed contractor, did not offer a second licensed contractor, and is insisting on bringing in the original unlicensed contractor to fix, rather than replace, the floor. Bathroom wall tile was also installed by the same unlicensed contractor and the workmanship is not acceptable and poses safety issues.
Investigator’s Observation: Verified. The majority of the floor tiles installed and grouted are 12” in width and 48” in length, and are rectified, per the manufacturer’s specifications. I observed several rooms where porcelain floor tile is installed in a running bond pattern. The rooms include: Kitchen, Formal Dining Room, Entry Way, Breakfast Nook, Great Room, Living Room, Wet Bar, Owners Suite, His and Her Water Closets, Bathrooms, Powder Room, Guest Bedrooms 1 and 2, and hallways. The tiles in the media room are large format and approximately 30” x 30” and are installed in a running bond pattern. I verified tile lippage in the locations identified above, both visually and with my steel notched lippage tool. I also found several areas that caught my shoes during the jobsite inspection and I also identified areas where tile edges were chipped. Lippage was excessive and varied by location and exceeded 1/32”. I also observed that the majority of floor tiles installed in the locations identified above are not installed per the manufacturer’s suggested installation tips (uploaded to the case file 05/17/2023) and the American National Standards Institute. Tile surface should be straight and reasonably flat, allowing for individual characteristics of the tile. Nominal centerlines of all joints should be straight and even width, with due allowances for hand molded or rustic tiles.
• ANSI A108.02-2013, Section 4.3.8.2., States: Tiles being installed in a running bond where the side being offset is longer than 457 mm (18 in.), the running bond offset cannot exceed 33 percent of the tile length, unless otherwise specified by the manufacturer.
The Respondent acknowledged lippage issues and stated that the installer he hired was unlicensed and that they did not use a tile leveling system during installation. There are several areas that exhibit grout joint width variation throughout the residence. I also observed that the base molding appears to be in the process of installation but is incomplete, and that there are grout joints that appear larger than 3⁄4”-1 1⁄4” particularly in the Media Room and in the Hallways. There are full and uncut tiles in these locations that are short of the finished walls on one side and it appears that the base board (5/8”) when installed, will not allow for consistent grout joint width. installed. I observed areas in the owner’s suite bathroom shower walls where tile is missing, and a hump is visible in the wall tile possibly due to the framing or the substrate. The glass tiles installed at the shower wall entrance outside corners is uneven and grout line variation is visible in both the owner’s suite bathroom, and the guest bathroom.
• ANSI A108.02-2013 Section 4.1.4.3.1 (“Horizontal Subfloor Surfaces”) and .2 (“Vertical Surfaces”), the substrate needs to be prepared before the tile installation such that the maximum allowable variation from the required plane for tiles with all edges
The tile cuts at the arched openings appear rough and jagged and the grout joints and the finish cuts do not follow the concave shape of the arch and exhibit both an increase and decrease at areas as they follow the arch shape. The Respondent will need to correct the above described complaint items by the appropriate means, using an appropriately licensed contractor to address all tiles exhibiting excess lippage, chipped tiles, and grout joints that do not meet industry standards.
. . . .
Compliance Item: 4-Damage to the entry door caused by failure to maintain a protected work environment for subcontractors or workers. Iron door was not protected as agreed by the general contractor and the homeowner as stone and concrete work was being performed in and around the entry.
Investigator’s Observation: I observed some abrasions and light scratches at the entry door. Respondent stated that he would touch up the door upon completion. The entry door is a finish item and efforts/provisions should be made to protect finished items if construction is out of sequence or may affect finished products due to proximity of work. This would be considered not showing diligence in workmanship. Respondent shall correct by the appropriate means.
. . . .
Following the initial written directive, which contained a compliance deadline of June 14, 2023, Respondent and Complainant entered into a verbal agreement to attempt to resolve the issues amongst themselves without the involvement of the Registrar.
Following the issuance of the final written directive dated October 5, 2023 and after the deadline in the directive expired, Investigator Di Alto conducted a compliance jobsite inspection and noted no corrective work had been performed.
The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A), and Ariz. Rev. Stat. § 32-1154(A)(22).
Investigator Di Alto testified that the complaint was submitted to the Registrar on April 12, 2023, and the matter was assigned to him on April 13, 2023. He conducted a jobsite inspection on May 2, 2023, that both parties attended.
Investigator Di Alto further testified consistently with the observations outlined in his written directive.
Subsequent to his jobsite inspection, Investigator Di Alto was contacted by Complainant with a request to close the complaint because the parties were attempting to correct the issues amongst themselves.
Investigator Di Alto testified that on October 5, 2023, he was contacted again by Complainant and asked to reissue the written directive because the parties were at an impasse. He completed a compliance jobsite inspection on October 23, 2023, and noted no work had been completed.
Complainant testified Respondent was hired to build a new home on a vacant lot in February of 2022. With regard to written directive Item 1, Complainant testified that Respondent hired GT Tile, an unlicensed contractor, to install the tile. The tile was installed “so poorly” that Complainant himself fired the contractor and advised the contractor that he was no longer allowed in his home. He testified that Respondent agreed the tile needed fixing, but did not want to hire the contractor that Complainant recommended due to the amount of his bid for the project. Ultimately, Complainant filed the complaint with the Registrar when he felt there was no progress in remedying the issues.
Complainant continued his testimony by stating that, following the filing of the complaint, he felt retaliated against when he then received four invoices, totaling over $191,000.00, all within the course of one month. He chose to withhold payment out of concern with the work that had been performed thus far. He was then advised that a mechanic’s lien was placed on his home. He testified that he and Kent Couchee (qualifying party for Respondent) came to an agreement wherein Complainant would agree to pay the sum of the invoices and withdraw the complaint, and Mr. Couchee agreed to hire a licensed contractor to correct the tile.
Complainant testified that he advised Mr. Couchee that he wanted to be involved in the process of selecting the next contractor, to include interviewing them and seeing their work. While he would have preferred to have hired Tanner Tile, ultimately he testified he was open to any reputable licensed contractor. However, Respondent never returned to correct the items so he reopened the complaint.
After the issuance of the written directive dated October 5, 2023, no corrective work was completed.
Mr. Couchee testified on behalf of Respondent. Mr. Couchee testified that even prior to the complaint being filed, he acknowledged that the tile work performed was substandard and would require fixing. He stated that the contractor he hired to originally install it, GT Tile, attempted to correct the work until Complainant “kicked him off the property.” He further testified that, post the initial filing of the complaint, he brought three different licensed contractors to the property in order to receive bids to complete the work; however, all three declined to engage in the project due to the size of the project and the lack of time they could offer.
Following those attempts, Mr. Couchee further testified that he “had a subcontractor” that would do the work (Reyes Tile), but that ultimately he did not retain them because they were going to charge too much money. Thus, as a result, Mr. Couchee testified that he and “workers that were on his payroll” went to the property to attempt to correct the issues themselves. He personally replaced approximately eighty tiles, but there was still more work to do. He continued with his testimony, stating that he ultimately stopped work when Complainant failed to pay his invoices that he issued on May 10, 2023, May 16, 2023, May 22, 2023, and June 6, 2023. Subsequent to Complainant’s failure to pay the amounts owed, Respondent then filed a mechanic’s lien against the property.
It was at this time that the parties made an agreement to attempt to resolve their issues without the Registrar’s involvement and the complaint was withdrawn, but held at the Registrar for sixty days.
During this time, Mr. Couchee testified he was paid in full for the May 2023 and June 2023 invoices and he was at the home every day working to attempt to correct the tile work.
He again stopped work on the tile sometime after he issued another invoice in September 2023 which was subsequently not paid. Between June and September, he believed he had completed 90% of the tile correction. Furthermore, during this time period, he testified that Complainant allowed him on the property and did not hinder any attempt at correcting the work.
Mr. Couchee admitted no one attempted to work on the issues identified in the written directive between October 5, 2023, and October 23, 2023. He further admitted that he believed that Complainant would not have denied him access to the property during that time had he attempted to return to the property to make the corrections.
Finally, with regard to Item 4 in the written directive, Mr. Couchee testified that this typically would have been fixed at the conclusion of the project and Respondent was not given an opportunity to finish the project. It, therefore, was not fixed.
Administrative notice is taken of Respondent’s prior License record on January 4, 2024. Such prior License record reflects that Respondent’s License No. 209954 was first issued on July 7, 2005, and is currently active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.
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 preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
All parties agreed that the work was not conducted in a workmanlike manner. Therefore, the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).
Unpaid balances as the reason for ceasing work is not a legal justification defense for alleged violations of Ariz. Rev. Stat. § 32-1154(A)(22) without proof of Ariz. Rev. Stat. § 32-1185 having been satisfied. Respondent did not present any evidence that he satisfied this statute in order to legally suspend the contract and/or performance of work for lack of payment.
The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Even if Mr. Couchee’s testimony was taken as true that he believed he corrected 90% of the tile work, (1) correction needs to be 100% completed and (2) Investigator Di Alto was unable to see any difference from his first inspection. Thus, any corrective work that was allegedly completed would not be deemed an appropriate correction.
Additionally, Respondent had the opportunity to hire, at a minimum, two licensed contractors (Tanner Tile and Reyes Tile) to complete the project, but chose not to because of their bid amounts.
Lastly, any attempt at corrective action was done prior to the issuance of the ultimate written directive. The parties agreed that no attempt to correct the work was made during the relevant period of October 5, 2023 through October 23, 2023 or any time thereafter.
Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 209954 for a period of 1 day.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.
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, January 11, 2024.
/s/ Amy M. Haley
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Driller Custom Homes Inc
8498 E Twisted Leaf Dr
Gold Canyon, AZ 85118
[email redacted]
Megan Schandle
[email redacted]
[email redacted]
Justin D. Fouts
Degnan Law Group
4105 N 20th St., Suite 220
Phoenix, AZ 85016
[email redacted]
By: OAH Staff