ALJDEC

02F-P0023-ROC · Registrar of Contractors · 2001-12-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 14, 2001. APPEARANCES: The Complainant appeared through its member and qualifying party, Lauren Adams. The Respondent appeared through its president and qualifying party, Michael Tovar. Also appearing as witnesses were Richard Bilbie, Joel A. Weeks, Dirk Gardner and Wayne Martineau. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Facts, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Complainant, Mountain Design L.L.C., is a contractor licensed by the Registrar of Contractors. However, a review of the official records of the Registrar of Contractors reveals that Complainant’s name appearing on its three licenses reads “Mountain Design and Decor, L.L.C.”. 2. Respondent is the holder of License Number 139469, a Class B-01 general commercial contractor license, issued by the Registrar of Contractors. 3. Respondent served as the general contractor for the Show Low Aquatic Center renovation project. The center is owned by the City of Show Low.

4. The Respondent’s contract with the City of Show Low was a time and materials contract. 5. Respondent and Complainant entered into a time and materials subcontract. Complainant was to install mosaic tiles, thinset and grout over a Bithuthene® System 4000 waterproofing substrate membrane. 6. On May 3, 2001, Complainant’s worker spent six hours doing preparation work on the jobsite. 7. On May 5, 2001, Complainant’s worker spent eight hours installing Bithuthene® on the women’s locker room. 8. On May 9, 2001, Complainant’s worker spent four hours installing ceramic tile in the men’s locker room. 9. On May 10, 2001, two of Complainant’s workers spent 14 total hours installing ceramic tile in the locker rooms. 10. On May 11, 2001, Complainant’s worker spent eight hours on the project. 11. Also on May 11, 2001, Respondent’s president and qualifying party, Michael Tovar, met with Richard Bilbie, an employee of the Complainant, regarding shoddy installation of the ceramic tile and Complainant’s failure to properly float the walls prior to tile installation. Mr. Tovar further stated to Mr. Bilbie that the ceramic tile installation in the men’s locker room and the sink portion of the women’s locker room were unacceptable. Mr. Tovar requested that Complainant work the following Saturday with several installers to perform required remedial repairs and to accelerate the pace of work. Mr. Bilbie agreed with Mr. Tovar’s assessment and advised him that installers would be on the jobsite the following day. 12. Mr. Tovar communicated Respondent’s concerns to Mr. Bilbie because he believed him to be Complainant’s representative on the job at that point in time. It is determined that Mr. Tovar had a reasonable basis for his belief that Mr. Bilbie had apparent authority to represent the Complainant, if not the actual authority claimed by Complainant’s qualifying party, Lauren Adams. 13. On Saturday, May 12, 2001, only one of Complainant’s installers appeared on the jobsite. The installer spent eight hours performing ceramic tile installation and wall preparation in the long corridor of the women’s locker room entryway. Respondent had expected more than one installer onsite based upon the previous discussion between Mr. Tovar and Mr. Bilbie. 14. On May 14, 2001, one of Complainant’s installers spent eight hours installing ceramic tile in the women’s locker room. 15. Also on May 14, 2001, Mr. Tovar contacted Mr. Bilbie regarding continued ceramic tile deficiencies. He also requested that additional installers be supplied by Complainant. Mr. Tovar did not receive a definitive response to his request. 16. On May 15, 2001, Complainant’s installer performed seven and one-half hours of ceramic tile work in the women’s locker area. An additional one and one-half hours was spent by the installer performing remedial work to the original tile installation. 17. On May 15, 2001, Mr. Tovar met again with Mr. Bilbie regarding Complainant’s deficiencies in the ceramic tile work and its inadequate staffing of the work. Mr. Bilbie stated to Mr. Tovar that four tile setters would be on the job on May 16, 2001 to both perform remedial work and to increase productivity of the tile installation. Mr. Tovar informed Mr. Bilbie that if the additional workers did not show up on that date, then Respondent would remove Complainant from the project. 18. Later on May 15, 2001, Mr. Tovar met with city officials regarding the overall project status, the project cost and the ceramic tile deficiencies. Mr. Tovar informed the officials that Respondent intended to remove Complainant from the project if it refused to correct its deficient workmanship and properly staff the project. The city officials were in agreement with Respondent’s intentions regarding Complainant. 19. On May 16, 2001, Complainant had two installers on the job working. Wayne Martineau, who is employed by Complainant, appeared at the jobsite at approximately 8:00 a.m. He informed Respondent’s staff that there would be more installers showing up that day as promised. Mr. Martineau left the site at approximately 8:30 a.m. and later returned at 10:00 a.m. When he returned to the site Mr. Martineau then indicated that only one additional tile setter was on the way. 20. On May 16, 2001 at approximately 1:00 p.m., Mr. Tovar contacted Mr. Bilbie because no additional installers had shown up for work. The promised third installer never appeared. 21. On May 16, 2001, Complainant’s two installers performed a total of 13 hours of tile installation and an additional two hours performing remedial work. The primary installer left the job at approximately 3:30 p.m. The second installer was asked to leave at 3:35 p.m. by Respondent’s staff because his work was unacceptable. 22. By letter dated May 16, 2001, Respondent advised Complainant that it was terminated from the project effective at 5:00 p.m. on that date. Respondent further stated that it intended to backcharge Complainant for the costs associated with remedial work to its deficient workmanship. 23. On May 17, 2001, Respondent’s superintendent spent 11 hours on the jobsite. Respondent backcharged ten of those hours to Complainant. 24. On May 17, 2001, Respondent’s tile installer spent 11 hours on the job. Respondent backcharged nine of those hours to Complainant. 25. On May 17, 2001 at approximately 12:00 p.m., Ms. Adams, Mr. Martineau and a tile setter walked the project and inspected the various areas of Complainant’s improper tile installation. Later that day the deficient tile installation was also viewed by city officials. 26. On May 18, 2001, Respondent’s superintendent spent ten hours on the jobsite. Respondent backcharged to Complainant eight of the superintendent’s hours associated with remedial repairs to Complainant’s deficient workmanship. Respondent also had two tile installers perform a total of 20 hours of work, with 16 of those hours being backcharged to Complainant as remedial repairs. The scope of remedial work performed that day included the tear out of the bad tile installation at the shower wall, the grinding and sanding of the substrate, re-floating the walls and the re-installation of tile at the shelf side. Respondent also backcharged the Complainant for sanding disks, belts, mortar, dremmel[1] bits and knotched[2] trowels used in those repairs. 27. On May 19, 2001, Respondent’s superintendent spent 12 hours on the jobsite. Respondent backcharged Complainant 9 of those hours for remedial work. Respondent also had two tile installers perform a total of 20 hours of work with 16 hours backcharged to Complainant for remedial work. The scope of work performed on that date was similar to the areas of remedial work performed on May 18, 2001. 28. On May 20, 2001, Respondent’s ceramic tile installers spent a total of hours performing remedial work to Complainant’s installation. All of that time was backcharged to Complainant for remedial work. 29. On May 21, 2001, Respondent’s superintendent spent 12 hours on the jobsite. Respondent backcharged Complainant 5 hours of the superintendent’s time. Respondent’s two tile installers spent a total of hours performing work. Respondent backcharged the Complainant 8 hours of the installer’s time. 30. On or about July 16, 2001, Complainant filed a complaint with the Registrar of Contractors alleging that Respondent had violated the provisions of the State’s contracting laws by failing to pay its invoice for the work performed and the materials supplied by it on the project. 31. On or about July 20, 2001, Respondent sent Complainant a check in the amount of $1,945.73. Respondent claims that Complainant is not entitled to further payment due to backcharges resulting from Respondent’s remedial work to Complainant’s deficient workmanship. Complainant contends that it is owed additional funds because of excessive backcharges and for materials left onsite after it was terminated from the project which were used by Respondent. 32. The claim made by Complainant’s qualifying party, Lauren Adams, that she was unaware of the extent of the Complainant’s deficiencies is unpersuasive. As the Complainant’s qualifying party, she had the responsibility to properly supervise Complainant’s scope of work. 33. Ms. Adams’ further claim that Complainant was not given an opportunity to correct its deficient workmanship is also unpersuasive. Respondent made numerous requests for Complainant to perform remedial repairs to its deficient workmanship and to properly staff the Complainant’s scope of work. If Ms. Adams was unaware of those requests, then she did not properly supervise the Complainant’s scope of work as its qualifying party. 34. There is found to be a bona fide dispute between the parties as to the amount of backcharges to Complainant for Respondent performing remedial repairs to its deficient workmanship and Complainant’s entitlement, if any, to reduced backcharges and to payment for materials left on the jobsite when it was terminated from the project. That dispute should more properly be resolved in a civil court of competent jurisdiction.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over this matter. 2. The evidence of record is insufficient to establish that Respondent has violated the provisions of A.R.S. § 32-1154(A)(7) and (11) as alleged in the Complaint and as charged in the Citation. 3. The Citation and Complaint in this matter should be dismissed.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Citation and Complaint in this matter be dismissed. Done this day, January 2, 2001

______________________________________ Brian Brendan Tully Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] This is the spelling found in Respondent’s Exhibit 5. [2] Ibid.

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