ALJDEC

00F-2130-ROC · Registrar of Contractors · 2000-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 7, 2000 APPEARANCES: Charles A. Randel appeared, representing Randel Construction. Gregory L. Davis appeared, representing Davis Tile and Marble. No person appeared representing the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ The hearing in this above captioned matter was held for the purpose of determining whether Respondent was in violation of statute as alleged by the Complainant and as Cited by the Registrar of Contractors. Evidence and testimony were presented, and based upon review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class K-05 license issued by the Registrar of Contractors (Registrar). This specialized license is for natural stone work and epoxy flooring work. According to the Registrar’s current computerized records, this license was issued on 2-29-2000. 2. Respondent is the holder of a Class K-48 license issued by the Registrar of Contractors (Registrar). This license is for installation and repair of ceramic, plastic and metal tile work. According to the Registrar’s current computerized records, this license was issued on 2-28- 2000. 3. Complainant testified that Respondent had done various floor tile work for him on other jobs, and that he had been happy with that work. There was no testimony regarding dates of that work. Complainant testified that he then contacted Respondent to install countertops at a residential construction job in Fountain Hills, asking if he did countertops. Complainant testified that Respondent said yes. The house in Fountain Hills apparently began as a spec home and was sold to a customer at some time thereafter. 4. There was no testimony regarding when Respondent’s work was begun or completed. 5. In March 2000, Complainant filed a formal complaint with the Registrar alleging complaints against Respondent’s work: faulty installation of granite countertops, with the island countertop being out- of-square with the cabinets and a 3/4 inch gap on the front and back; sink loose from the epoxy; carpet being visible at the hall closet, where it should be tile; joints rough and uneven; and that Respondent did not return phone calls. 6. Respondent’s proposal, dated 2-1-00, was attached to the filed complaint, which also indicated the date of the contract to be 2-1-00. The work listed on the proposal included kitchen, laundry and bath countertops and bath and shower areas per plans and approval of Complainant. The total on the contract proposal was $14,925.00. 7. Respondent’s invoice for the job was attached to the filed complaint to the Registrar; however, the copy was not unfolded and the bottom of the invoice is not present in the file. There may be a date indicated by Respondent on that invoice, but the date is unknown to this record. The top of invoice has a handwritten notation of it being paid on 2-28-00 with Check #3667. 8. As a result of receiving the complaint, Registrar’s Inspector (Inspector) Mel Purchase scheduled a site inspection. 9. On March 23, 2000, a Corrective Work Order (CWO) was issued regarding four of five specific items required to be repaired or corrected: tile and carpet union at the closet; loose kitchen sink; kitchen counter top not straight with cabinets or parallel with back wall; countertop seam to be buffed out; and a mark on a wall to be sanded. No action was required on a crack or chip on/near stove. Respondent was required to make corrections within fifteen days. 10. The corrective work was not all completed and the matter did not get resolved in that time period. 11. On June 1, 2000, the Registrar issued its Citation and Complaint against Respondent alleging violations of Arizona Revised Statutes (A.R.S.) §§32-1154.A.7, 32-1154.A.20, and 32-1154.A.23. 12. On June 14, 2000, Respondent filed its written answer, indicating they had fixed the items according to the contract and the job site agreement. 13. The matter remained unresolved, and was forwarded for formal administrative hearing. 14. The items remaining at issue at the time of the hearing were as follows: a. Security of kitchen sink being held by two clips and not four. b. Kitchen countertops, primarily on pony wall and island. 15. As to the kitchen sink, the CWO of Registrar’s Inspector had indicated that the Respondent “should have made sure that the sink was installed correct with clips as needed” and was to correct by appropriate means per job site agreement. Complainant’s testimony was that clips were discussed, that Complainant went and purchased several types of clips and that Respondent had used two of them to secure the sink to the countertop but argued that he needed to use more to secure the sink at the back. The Inspector’s testimony was that he was not sure this was the right kind of clips for this sink or that this sink was the right kind for stone countertops, and that it looked more like a sink for a formica top; Inspector was not certain how such a sink was to be secured. Respondent testified that sinks are mounted to stone with silicone or epoxy, depending on the type of sink, and that any additional support is only per a manufacturer’s recommendation. 16. As to the countertop, the CWO of Registrar’s Inspector had indicated that the top was not parallel with cabinets and the back wall, was not set straight with the cabinets. Complainant testified that the reveal on the countertop is not the same all the way around, and that it is one inch on one side and zero on the other. Complainant also is concerned that a popsicle stick was used to shim the countertop in one place. Photographic evidence shows the underside of one side of the countertop, with uneven reveal and the edge of a popsicle stick in one location. Complainant indicates that the plaster used nearby has cracked and fallen out in places. Complainant’s Hearing Exhibit 1. 17. Complainant’s witness, Richard Stoner, testified that a template is used when cutting the top to assure that the top is straight and that it’s equal as to spacing against walls and cabinets. Complainant’s witness believed that a fix for this situation is to cut the top away and slide it to have equal reveal at the front and the back. 18. The Registrar’s Inspector testified that the inside of the countertop was, in fact, demonstrated to him at the pre-hearing inspection to be set at 90 degree angle, and that the problem is that the cabinets/pony wall are not square with the back wall. The Inspector testified that this is the reason that the countertop is not exactly parallel with the back wall. The Inspector testified that there is a gap at the outer edge of the peninsula; that it is tight against the wall at the bottom, but is about an inch open at the far wall. The Inspector testified that he was told of the conversations at the time of making the template between Respondent and Complainant - regarding the cabinets not being square with the wall and Complainant telling Respondent to go ahead with it in that condition. The Inspector testified that he did not believe the countertop was made incorrectly, and that there were probably some things which could be done to fill the remaining gap, suggesting a filler on the drywall side or a trim to cover the gap. 19. Respondent testified that he brought this out-of-square problem to Complainant’s attention when making the template, and that he was to told the cabinet person could not come back in to reset the cabinets. Respondent testified that he offered to Complainant to make the top oversized to accommodate the problem and not pinch the outer square position, and that Complainant told him to proceed in that way. Respondent argued that the countertop matches the template he made, that the countertop is level, plumb and square, and that the tolerances for this industry are 1/16 out of level and 1/8 out of plumb for every eight feet. Respondent argued that no other fix is needed. 20. Complainant also testified that, after Respondent did the corrective work and left the house, there were two big gouges in the door of the closet which had not been there the day before. Complainant also testified that Respondent had broken his aluminum level in half and used it to prop a tile. Respondent denied any such damage to the door or to a level. 21. A respondent is required to appropriately and properly repair items as noted on Registrar’s CWO, absent proof that the CWO direction is inaccurate, inappropriate or unnecessary. 22. Based on the evidence and testimony of record, it was shown that the kitchen countertop was appropriately made per agreement by Complainant and Respondent at the time of template. It is determined that the record reflects that Respondent has installed that kitchen countertop to industry standards. 23. However, it the evidence and testimony also show that, after the installation, the finishing of the installation at the edge where the kitchen countertop meets the cabinet edge or wall could use additional attention. There was some discussion about the house having been sold, and the new owners probably being aware of the countertop situation and accepting it. Complainant does not want this Respondent to make corrective work on the countertop because he is not sure that a person can make his work better than he already was able to do. This was stated, despite Complainant having accepting the Respondent’s corrective work on the other items from the CWO which were not at issue in this hearing. Therefore, it is hoped that Complainant and Respondent will work together to resolve this aesthetic situation. 24. Based on the evidence and testimony of record, it is determined that Complainant did not show that the kitchen sink is incorrectly mounted. Complainant did not present any standard or manufacturer’s recommendation for this particular sink mounted in this particular type of countertop. If a problem surfaces within two years of the corrective work done [the clips installed], then it can be addressed at that time. 25. There was no information presented at the hearing regarding the issuance of either of Respondent’s licenses, or the impact of the Registrar’s cited allegation of violation of A.R.S. §32-1154.A.20. The information forwarded to this tribunal from the Registrar contained a copy of an October 27, 1999 facsimile sent to the Registrar’s Licensing area by Respondent, stating that it is a request for a K-5 Specialty License for natural stone work and ceramic tile work. Handwritten notations (unknown by whom written) at the bottom of this letter show two categories of license [K-48, and K-5] and also show “2 yrs.” with no indication that such licenses were “granted” and there is no handwritten indication of a date, such as an effective date. It is unknown whether the Registrar considers this October 27, 1999 letter to be the “application” for a license. No other Registrar “application” information was presented to this tribunal or available for tribunal review. The Registrar’s current computerized licensing records indicate that Respondent was issued License No. 152678, K- on 2-28-00 and was issued License No. 152679, K-05 on 2-29-00. No evidence of any other license for Respondent, or that he worked for another licensed contractor, was presented to this tribunal. Therefore, it appears that Respondent may have been unlicensed at the time of this contract. APPLICABLE LAW A.R.S. §32-1154.A. provides that a holder of a license or a person listed on a license shall not commit the following: … 6. Misrepresentation of a material fact by the applicant in obtaining a license. 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 10. Aiding or abetting an unlicensed person to evade the provisions of this chapter, knowingly combining or conspiring with an unlicensed person … with intent to evade the provisions of this chapter. … 14. Knowingly entering into a contract with a contractor for work to be performed for which a license is required with a person not duly licensed in the required classification. 20. Subsequent discovery of facts, which if known at the time of issuance of a license or the renewal of a license would have been grounds to deny the issuance or renewal of a license. … 23. 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 written directive from the Registrar. CONCLUSIONS OF LAW 1. Complainant has not shown sufficient proof of cited alleged statutory violations. The evidence and testimony at the hearing did not establish violations, by Respondent, of A.R.S. §§32-1154.A.7, 32-1154.A.20 or 32-1154.A.23. 2. The evidence of hearing record, as to Respondent’s licenses, is not clear. The hearing record is inconclusive as to any prior licenses or any “applications” for licenses and the alleged prior acts which may have been grounds to deny license issuance had they been known. The Registrar’s licensing records may indeed contain other applicable information which may lend strength to the alleged violation of A.R.S. §32-1154.A.20, or possible other violations by the parties. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Citation Nos. 00- 2130 and 00-2130X be closed and the matters be dismissed. RECOMMENDED this day, September 29, 2000.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Transmitted by mail this _____ day of _______________, 2000 to:

Registrar of Contractors Mr. Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 PH(602) 542-9826/ FAX 542-9827