ALJDEC

00F-H0267-ROC · Registrar of Contractors · 2000-12-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 5, 2000 APPEARANCES: Complainants Ronald and Diana Hughes appeared representing themselves. Richard Schott, Vice-president and Qualifying party of Respondent, Dynasty Cultured Marble, Inc., appeared representing Respondent. 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 (Registrar). 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 was a contractor for a portion of the bathrooms at Complainants’ new residence which was being built in Kingman, Arizona. At the time, Respondent was the holder of a Class C-30R license issued by the Registrar. 2. At the hearing, Respondent’s representative advised that they had been a corporation for two years now, and the caption should no longer be Joseph Berry Schott dba Dynasty Cultured Marble. The available records of the Registrar did not confirm corporate status. The available records show Joseph Berry Schott to be the owner and Richard Hugh Schott to be the qualifying party. 4. On May 24, 2000, Complainants filed a formal complaint with the Registrar against Respondent. Complainants’ original complaint in this matter stated that: faulty mastic was used throughout the home; that damage was done due to expanding foam used in the walls; and that four panels were still loose. 5. As a result of receiving the complaint, the Registrar’s Inspector scheduled a site inspection. The Inspector determined that there were problems with some cultured marble panels, and that there was no problem with other panels (in the front master bathroom). On June 9, 2000, the Inspector issued Registrar’s Corrective Work Order (CWO) indicating that Respondent was to properly secure the [cultured marble] panels to the walls in the guest bathroom and in the rear master bathroom. Additionally, Respondent was to repair the drywall in the front bathroom, and retexture and repaint to match the existing walls. The CWO calls for Respondent to make these repairs within fifteen days. 6. As directed in the CWO, Respondent sent workmen and took down the existing marble panels, replacing the marble panels in the two noted bathrooms and repairing the drywall, etc., in the front bathroom. 7. Complainants were still not satisfied that the marble panels in the front master bath were appropriately attached, and requested a hearing. Their complaint does indicate that they complained of faulty mastic throughout the house. 8. On July 26, 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.23, and 32-1154.A.3, specifying Arizona Administrative Code (A.A.C.) R4-9-108. 9. On July 28, 2000, Respondent filed his written answer with the Registrar. Overall, Respondent indicates that the work on the CWO was completed in the appropriate time frames, and that Respondent agreed with the Inspector that the panels in the front master bathroom meet industry standards. 10. At the hearing, Complainants testified that they believe all the mastic used was faulty, and that the panels in the front master bath are loose. Complainants’ proof that the panels are loose was a tape recording made of Mrs. Hughes pushing on the panels and the sounds of the panel flexing as she pressed and released that pressure from the panels. Complainants also brought in several of the approximately 6 inch flat roundish white globs that Mrs. Hughes had found on the floor as the workmen removed and replaced panels. It was her contention that these globs had been on the walls to hold the back of the panels in one of the repaired bathrooms as evidence that the panels in all the bathrooms had not been properly secured. Complainants requested that the panels in the front master bath be properly secured. 11. Respondent testified that the marble panels are appropriately secured, that they have replaced the panels as was instructed in the CWO (at great expense to Respondent) and that the remaining panels complained of, in fact, do meet and continue to meet industry standards. Respondent testified that he thought the roundish globs were drywall mud. 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: … 3. Violation of any rule adopted by the Registrar; specifically Arizona Administrative Code (A.A.C.) R4-9-108[1]. … xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … xxx 23. Failure to take 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... .

Additionally, A.R.S. §32-1154.D provides that Registrar may impose on a contractor a civil penalty not to exceed five hundred dollars for each violation of A.R.S. §32-1154.A.23, i.e., for each failure to take appropriate corrective action after receiving a written directive from Registrar. . CONCLUSIONS OF LAW 1. The hearing testimony showed that Respondent did complete the corrective work as directed by the Registrar’s CWO. Credible testimony and evidence also established that the cultured marble panels in the front master bathroom meet industry standards. Complainants did not prove that the panels in the front master bathroom were either defective or that the installation work was not performed to meet industry standards. The evidence and testimony at the hearing established no violation, by Respondent, of A.R.S. §§32-1154.A.23. 2. There was insufficient evidence of any wrongful or fraudulent act by Respondent in this matter. There was insufficient evidence of violation by Respondent of workmanship standards. RECOMMENDED ORDER In view of the foregoing, based on finding no violations, it is recommended that this Citation No. H00-0267, together with the Complaint on which it is based, be dismissed and the case be closed. RECOMMENDED this day, December 26, 2000.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Copy transmitted by mail this _____ day of December, 2000 to:

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

By ___________________________

----------------------- [1] A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner which is described to be in compliance with local building codes of express application to the types of work done and complained of.

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