ALJDEC

01F-L0198-ROC · Registrar of Contractors · 2001-10-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 13 September 2001 APPEARANCES: Complainant: Joseph and Constance Crotty. Respondent: Eddie Spencer, owner of Spencer’s Custom Floor Coverings; Marnell Spencer, wife of Eddie Spencer; Carolyn Bowen, Owner of White Glove Detailers. Others: Cliff Corlett, Inspector, Arizona Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A), specifically subsection 7, 23 and 3 (namely AAC R4-9-108) by improper installation of saltillo tile. Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the under-signed Administrative Law Judge now makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the ROC.

FINDINGS OF FACT 1. The Complainant’s kitchen area in their home suffered water damage as the result of water leakage from a water purifier. As a result, approximately 50 saltillo tiles needed to be replaced on the kitchen floor. Respondent contracted to do the tile replacement for approximately $1712. To date, Respondent has not been paid by Complainant for the replacement tile work. 2. Approximately 50 tiles were replaced by respondent’s mason in December 2000. During the installation process, a light-duty sealant called “cutback” was applied to the porous tile to protect it and prevent stains and discoloration during the grouting and cleaning process. Respondent’s mason grouted the tile, but did not clean the tile to the Complainant’s satisfaction. Complainant requested someone else clean the tile again prior to it being finally sealed with epoxy. 3. Ms. Bowen came to Complainant’s home at the behest of the Complainant in January 2001. It is disputed whether Ms. Bowen used an excessively abrasive brush or cleaner on the tile during the cleaning process; however, when the tile was covered with epoxy, it became apparent that some of the tile had been damaged with brush or scratch marks that penetrated the “cutback” and when the epoxy was applied, some of the tiles exhibited a white-ish, bleached appearance, rather than the deeper reddish tone of the other tile. 4. Mr. Corlett did an inspection of the tile job on 16 April as the result of Complainant’s complaint to the ROC. He revealed that approximately 15 tiles were in need of replacement due to the discoloration problem. As a result, he issued a Corrective Work Order (“CWO”) dated 17 April 2001 requiring replacement of the damaged tiles. The remaining replaced tile appeared to be adequately installed and colored, and (except for some minor differences due to age and wear of the unreplaced tile) blended appropriately with the rest of the tile in the kitchen, and were well within the standards of workmanship established by the ROC. 5. Respondent remains ready to replace the approximately 15 tile that experienced discoloration and can obtain the materials to commence replacement within a short period of time. However, Respondent indicates that Complainant has not allowed him to undertake the replacement, and has demanded certain additional requirements be met before such remedial work can begin. Complainant indicated at hearing that he is unwilling to allow Respondent to repair the tile without certain assurances being met, which are listed in Complainant’s statement of 13 September 2001 and is part of the record in this case.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The evidence adduced at hearing showed that there were certain deficiencies in the work undertaken by Respondent. However, notwithstanding such deficiencies, it is well established that construction work, such as that at issue in this case, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. See ARS §32-1154(A)(23). 3. Complainant elected to file its complaint with the Registrar of Contractors and pursuant to said election, he was required to allow the Registrar’s normal process to be followed; specifically, to allow the ROC to investigate the complaint and give the Respondent an opportunity to complete any remedial action that the ROC inspector deemed appropriate. See ARS §§32-1104(A)(4) and 32-1154(B). To this day, Respondent has been unable to complete the remedial work, despite being ready to do so, due to Complainant’s demands for certain assurances before the work begins. Complainant states these assurances are required due to Respondent’s demonstrated inability to properly lay a saltillo tile floor. However, Complainant’s position is not well grounded in the facts as presented at hearing. The mere fact that the vast majority of the tile were adequately installed and within the standards of workmanship of the ROC, as testified to by the ROC inspector in this case, is proof enough that Respondent has the requisite expertise to install such tile. Although it is unclear whether Ms. Bowen’s cleaning of the tile was improperly accomplished, it is clear that some of the tile were incapable of withstanding the additional cleaning. Although it is debatable as to who is primarily to blame for the additional cleaning that caused the damage (i.e., the Complainant for insisting upon the additional cleaning, or the Respondent for acquiescing in it), the Respondent stands read to correct it. Accordingly, he should be allowed to do so. 4. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant has sustained the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated ARS §32- 1154(A), specifically subsection 3, by failing to install the tile in a professional and workmanlike manner. Accordingly, Respondent should be afforded the opportunity to replace the damaged tile, without regard to Complainant’s demand for assurances.

RECOMMENDED DECISION

In view of the foregoing, it is recommended, commencing on the effective date of the ROC’s Order, that Respondent’s Class C-08 license be temporarily and actively suspended until the ROC receives proof adequate to the ROC that Respondent has replaced the tile identified by Inspector Corlett as damaged, in accordance with the 17 April 2001 CWO issued in this case, by appropriate and effective remedial work.

Done this day: 2 October 2001

______________________________________ Maurice McWhirter Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, 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