ALJDEC

01F-T0021-ROC · Registrar of Contractors · 2001-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Thursday, January 25th, 2001; 9:00 a.m. APPEARANCES: The complainants were represented by complainant Ms. Elaine Leasure. The respondent, Mr. Bradley Carroll Breckenridge, represented himself. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ This matter convened for administrative hearing in the Office of Administrative Hearings, Tucson, Arizona. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondent, Bradley Carroll Breckenridge, doing business as Breckenridge Tile, is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C-48 License number 105229. 2. The complainants, Elaine and John Leasure, own their home located in Tucson, Arizona. Complainants contracted through Home Depot for the installation of 8” ceramic tile in their master bathroom on or about June 1st, 2000. The work was subcontracted to the respondent. 3. The bathroom is divided into a “his” and “her” side with a shower stall in the middle. Each side has a door to the master bedroom. 4. Respondent performed the tile installation on the east side of the bathroom first. In performing this work the respondent first removed the existing tile. He then installed the new tile. 5. The work on the east side was satisfactory to the complainant, and she and the respondent then entered into a contract for the respondent to install new tile on the west side of the same bathroom. The complainant contracted for the installation of the same tile and in the same manner as respondent had installed the tile in the east side. 6. The problem between these parties arose when the respondent failed to remove the existing tile in the west side of the bathroom, and simply laid the new tile over the old. This manner of installation resulted in a serious discrepancy between the two transition areas from the bathroom to the master bedroom. 7. The transition area where the master bedroom’s carpet meets the east bathroom door is acceptable. There the top of the carpet pile is approximately ¼” higher than the tile. 8. The transition area where the master bedroom’s carpet meets the west bathroom door is unacceptable. There the top of the carpet pile is approximately ½” lower than the tile. 9. Thus the tile laid on the west bathroom floor is approximately ¾” higher than that on the east. 10. Respondent failed to correct this difference when the complainants requested him to do so. Therefore, the complainants filed the instant complainant with the Registrar of Contractors on July 7th, 2000. 11. The complainant was assigned to Registrar of Contractors Inspector Mr. Richard C. Allen. Inspector Allen conducted a job-site inspection on August 22nd, 2000. As a result of his inspection, the inspector issued a Corrective Work Order to the respondent dated August 23rd, 2000. The inspector ordered the respondent to make the following correction: “Correct the west portion of the master bathroom ceramic floor tiles to obtain a proper/acceptable match with the east portion of the master bathroom ceramic floor tiles and transition to master bedroom carpet.” The CWO allowed the respondent 15 calendar days from its date to make this correction, which was a reasonable amount of time. 12. The respondent failed to make the corrections directed by the CWO. Complainants requested a hearing. A Citation and Complaint was issued from the registrar’s office on October 18th, 2000, charging the respondent with possible violations of A.R.S. §32-1154.A.7., 23., and 3.

13. At the hearing the respondent testified that he could not remove the old tile before laying the new because, first, doing so could damage the existing tile running along the edge of the base of the shower, a tile which is now discontinued, and second, there is a problem with the placement of the toilet plumbing fixture. Respondent blamed the problem of the area where the west door meets the master bedroom on the carpet installers, claiming that they could have done away with the ½” difference by leveling or ramping beneath the carpet up to the doorway.

14. There would have been no problem with removing the existing tile in the west bathroom as respondent claims. The respondent succeeded in removing that same tile along the same shower stall in the east side without damaging any of the same type of adjoining tile. The respondent never proved how the placement of the toilet fixture placed an insurmountable obstacle to removal of the old tile and replacing it with the new. Respondent produced no evidence to show that this toilet was somehow defective or defectively installed. From the evidence it appears to be a normal toilet. A reasonable inference is that all sorts of tile is commonly laid around toilets without the sort of problem claimed by respondent. Finally, it is not the responsibility of the carpet layers to make amends for respondent’s defective workmanship. 15. Notice is taken of the respondent’s prior license record with the Registrar of Contractors. . . . . . . CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092. 2. The respondent herein is charged with possible violations of A.R.S. §32- 1154.A.7. 23., and 3. 3. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited in the Citation and Complaint is A.A.C. R4-9-108, Workmanship Standards. Respondent violated section A. of this rule when he installed the tile in the west side of the bathroom, by doing so in an unprofessional manner, and with poor workmanship by failing to remove the existing tile first and leaving the ¾” discrepancy between the two sides. In violating A.A.C. R4-9-108, respondent violated A.R.S. §32-1154.A.3. 4. A.R.S. §32-1154.A.23., prohibits a licensed contractor from failing to take appropriate action to comply with the Arizona contractors’ laws, without valid justification, within a reasonable period of time, after receiving written directive from the registrar to do so. The written directive from the registrar in this case is the CWO. It allowed a reasonable period of time for the respondent to correct the problem with the tile installation. Respondent did not correct the tile. Respondent offered the record no valid justification for his failure. Respondent violated A.R.S. §32-1154.A.23. 5. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor which results in another person being substantially injured. There is no evidence of fraud. There is no evidence of any wrongful act on the part of the respondent as a contractor, constituting a violation of this section, independent of the poor tile installation. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the respondent’s Class C-48 License shall be suspended until such time as the Registrar of Contractors receives proof that the respondent has properly accomplished the corrective action set forth in the inspector’s Corrective Work Order (quoted above at Finding of Fact #11). It is further recommended that if the respondent properly accomplishes the above-described corrective action on or before the effective date of this order, then the above-provided license suspension shall not take place and Citation and Complaint No. T01-0021 shall be closed. Done this day, February 7th, 2001.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of February, 2001, to:

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

By _______________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488