ALJDEC

00F-G0018-ROC · Registrar of Contractors · 2000-05-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 18, 2000, at 1:30. APPEARANCES: COMPLAINANT: John Bosch, on his own behalf. RESPONDENT: No one appeared.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ This matter proceeded to hearing on May 18, 2000, to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Based on the testimony and evidence of record, and administrative notice of certain events and documents relative to the procedural history of the case, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made and submitted to the Registrar of Contractors:

FINDINGS OF FACT 1. Complainant John Bosch contracted with a general contractor to build his residence at 14920 West Watson Circle, in Surprise, Arizona. 2. The general contractor sub-contracted with Respondent Flynn's Floor Covering, Inc. (Flynn's Floor Covering), License No. 065121, Class C- 08R, for installation of ceramic tile flooring through much of the home (all but the 3 bedrooms and the living room/den), based on Bosch’s choices of tile and grout from those offered.

3. After construction and walk-through inspection had been completed, but prior to Complainant’s move-in date of June 25, 1999, Respondent acted to replace 12 damaged or otherwise unacceptable tiles (totaling about 12 square feet, or slightly more) found at various points throughout the house among the approximately 500 + square feet of tile laid. 4. After the move-in date, Respondent also laid additional grout to complete additional areas from which the grout was missing, the wrong color, or incomplete. 5. On October 5, 1999, Complainant Bosch filed a complaint against Flynn's Floor Covering with the Registrar of Contractors (Registrar) alleging that Respondent refused to once again replace the 12 tiles, [with the refusal apparently] because a matching dye lot could not be found, and further alleging that the [additional] grout laid did not match the other [original] grout. 6. Based on the complaint, the Registrar’s inspector John Ratcliff conducted a jobsite inspection on December 9, 1999, after which he authored correspondence directed to Complainant indicating that it appeared appropriate to close the complaint, absent sufficient evidence to show proof of a violation by the contractor. Relative to the two items complained of by Bosch, the inspector stated: Floor Tile A) Color of replaced tile The color is not a 100% match, however it is very close and within acceptable standards. B) Grout color The color is not a 100% match, however it is very close and within acceptable standards.

7. By correspondence dated December 23 and filed with the Registrar December 30, 1999, and additional correspondence dated January 11 and filed January 14, 2000, Complainant appealed the inspector’s determination. 8. In correspondence dated January 5, 2000, the Registrar’s inspector notified Respondent that while the company held a Class C-8R Carpet license, the Registrar’s information indicated the company was performing or offering to perform work in its project at Complainant’s residence address which would be covered under a Class C-8 Floor Covering license. 9. The Registrar then issued CITATION AND COMPLAINT in Case No. G00- 0018 on March 3, 2000, charging Respondent with possible violations of A.R.S. § 32-1154.A.3 (and the workmanship rule, A.A.C. R4-9-108), A.7, and A.17. 10. Respondent’ representative timely filed the company’s written answer to the CITATION AND COMPLAINT with the Registrar on March 10, 2000, contending that in reliance on the inspector’s determination that its work was within acceptable standards, the company did not believe further corrective action was required, and providing documentation indicating that the replacement tile was from the same dye lot as the original. 11. Respondent’s representative also stated why the company had not knowingly contracted beyond the scope of its license, and that after learning of the problem from the Registrar, had taken action to have the appropriate license and bond by March 31, 2000. 12. With the issues thus joined, NOTICE OF HEARING was issued to the parties by the Registrar of Contractors on April 10, 2000, setting the time and place for hearing before the undersigned administrative law judge of the Office of Administrative Hearings. 13. At hearing, Complainant Bosch appeared and testified, and offered Exhibit 1/A - E (seven color photographs depicting grout); Exhibit 2/A - C (three color photographs depicting tile); and Exhibit 3 (grout chips and a grout sample color bar). The exhibits were marked and admitted, without objection. 14. No one appeared on behalf of Respondent, and no explanation was received for such absence, although the record remained open for one hour from the scheduled starting time. 15. With regard to the replacement tile color variation, Bosch testified to confirm that the 12 tiles replaced were a small percentage of the total tile and distributed throughout the tiled rooms of the house, but that they were a lighter shade than the majority, to the degree that they “stuck out” from the remainder, such that the color variation was unacceptable to him. 16. Bosch referenced the 3 color photos of the tile (Exhibit 2) to demonstrate that the replacement tiles were lighter than the surrounding tiles originally laid. It was his understanding from his telephone calls to Respondent’s workers - whom he said did not show up as scheduled in July or August, 1999, to observe the variations in color - that replacement tile could not be matched from the original dye lot. 17. Based on Bosch’s testimony, and observation of the photographs of Exhibit 2, the undersigned finds that the several replacement tiles depicted therein (and by reasonable inference, all 12 replacement tiles), do present with a lighter cast or color than the original tiles laid, although all the tile was quite light in overall color. 18. With regard to the color variation in the additional grout laid by Respondent’s workers, Bosch testified that the additional grout was unacceptably different in color than the color he had chosen, and that the workman had not used the extra bag of grout that Bosch had available, left over from the original. 19. Bosch stated that he had originally ordered grout color “102 -Topaz” , and as part of Exhibit 3, he submitted a two-sided sample color bar representing that color (and another color, irrelevant here, on the other side) which he explained he had been provided when he originally chose tile and grout color at the builder’s design center. The remaining part of Exhibit 3 consists of three small (about ½” by ¼”) portions of grout which Bosch stated he had removed from the additional grout to show its redder color in comparison to the more brown sample color bar. 20. Bosch also referenced the 7 color photos of the additional grout (Exhibit 1) to demonstrate its color variation from the original grout laid, as depicted in those photographs. 21. Based on Bosch’s testimony, and observation of the photographs of Exhibit 1, and the sample color bar and chips of Exhibit 3, the undersigned finds that the additional grout laid after the original appears to be somewhat more reddish in color than the original more brown-toned grout. 22. It was Bosch’s desire that if the tile could not be matched, then all the tile laid should be removed and replaced with tile that should be identically color-matched, and that the grout color should match consistently, both either to be corrected by Respondent or at Respondent’s expense.

APPLICABLE LAW Arizona Revised Statutes (A.R.S.) §32-1154.A provides, in relevant part, that a holder of a license or a person listed on a license shall not commit the following:

3. Violation of any rule adopted by the Registrar. … 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 17. Knowingly contracting beyond the scope of the license or licenses of the licensee. …

The CITATION AND COMPLAINT names A.A.C. R4-9-108 as the rule charged pursuant to A.R.S. § 32-1154.A.3. That rule provides that all work shall be done in a professional and workmanlike manner, and in accordance with any applicable building codes and professional industry standards.

CONCLUSIONS OF LAW 1. To warrant action by the Registrar pursuant to the statutes above, Complainant Bosch must demonstrate by a preponderance of the evidence that Respondent Flynn's Floor Covering, Inc. violated any one or more of the statutory sections cited. Culpepper v. State of Arizona, 187 Ariz. 431, 437- 38, 930 P.2d 508 (Ariz. App. 1996). A “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 2. Based on the factually-credible and uncontroverted testimony and evidence provided by Complainant Bosch, there is no doubt that there exists, observable to the undersigned, a color variation between the original and replacement tile, and between the original and additional grout, such that this tribunal concludes that the replacement tile and additional grout are something less than a perfect aesthetic match with the original; indeed, even Respondent, through its representative’s correspondence and answer to the CITATION AND COMPLAINT, has conceded such a conclusion, but with the assertion that at least the replacement tile was from the same dye lot and lot number as the original tile (which assertion was disputed but not disproved by Complainant in his testimony). 3. In that regard, although Complainant would understandably prefer a subjectively “perfect” color match by Respondent relative to the particular replacement ceramic tile and additional grout, the Registrar of Contractors can and must only apply a minimum standard of acceptable workmanship, and not perfection, in determining whether disciplinary penalties against a contractor’s license are appropriate. 4. Administrative notice is taken that tile, even within the same dye lot, and grout, particularly when laid from different batches at different times, inherently tend toward shading variations, and a certain degree of such variation must be deemed acceptable as within minimal standards of workmanship. This is so, notwithstanding that at some point along the aesthetic continuum from color-match perfection at one end to objective imperfection at the other, the degree of variation would and must be deemed unacceptable, i.e., black tile to replace white. The difficulty is in determining where on the scale the subjectively-perceived variation would go beyond minimally-acceptable standards of workmanship. 5. Complainant Bosch has not provided any probative evidence - beyond his own strongly-held but nevertheless subjective opinion, and the color variation observable in his demonstrative exhibits - which is contrary to the determination of the Registrar’s inspector that the work done by Respondent met the minimum industry standards of workmanship required. 6. Such determination must be accorded some degree of deference relative to the sufficiency of this contractor’s workmanship to meet those industry standards of workmanship, given the inspector’s presumed degree of knowledge and expertise relative to those standards. “A workmanlike manner means doing the work in an ordinary skilled manner as a skilled workman should do it.” J.W. Hancock Enterprises, Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (1980) (quoting Brown v. Eakins, 220 Or. 122, 348 P.2d 1116, 1117 (1960)). 7. In this instance, however, the variation in both tile and grout, while observable, is subtle, and subjective, and has been found within the minimal standard required by the Registrar’s own inspector. Therefore, in the absence of sufficient evidence to the contrary that the work fails to meet industry standard (rather than any one individual’s subjective perception of perfection), that inspector’s determination must be deemed compelling. 8. Thus, while the evidence does show imperfection in the color match of the replacement tile, and the additional grout, the undersign concludes that Complainant has not demonstrated, by the necessary preponderance of the evidence, unworkmanlike efforts or fraudulent or wrongful conduct on the part of Respondent, and no violation of A.R.S. § 32-1154.A.3 or .7 has been proven. 9. With respect to the allegation that Respondent knowingly contracted beyond the scope of its license, the evidence simply does not demonstrate that any such contracting beyond the scope of its license was done intentionally or purposefully, and is therefore inconclusive. Accordingly, no violation of A.R.S. § 32-1154.A.17 has been demonstrated.

RECOMMENDED DECISION On the basis of the foregoing, IT IS RECOMMENDED by the undersigned that the CITATION AND COMPLAINT in Case No. G00-0018 be dismissed. Done this day, June 6, 2000.

______________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors 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 (602) 542-9826