ALJDEC decisions subject to certification as final

06F-G0922-ROC · Registrar of Contractors · 2006-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 18, 2006

APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its owner and qualifying party, Jim Tanner. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. Respondent was retained by Complainant’s “significant other” to install tile in Complainant’s home. Complainant claims that Respondent caused specified damage to the tile and this issue is discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. The tile in question is a soft marble stone material and it was supplied by Complainant. Respondent merely performed the labor to install the tile. b. Complainant contends that Respondent is responsible for excessive scratch type marks in the tile. c. Kim Farrar (“Farrar”) testified at the hearing. She is employed at a natural stone care and restoration company. Farrar testified that the stone obtained by Complainant was not a high quality stone, due to the fact that she was convinced the stone came from the factory with swirl marks in the stone. d. Bartha Baria (“Baria”) also appeared and testified at the instant hearing. Baria was shown to be a quality control specialist, employed at a stone quarry. He examined a sample of the tile purchased by Complainant and indicated that the tile in question is not first quality tile, based on the swirl marks which were present in the sample tile. He further testified that there is a difference between swirl marks from the factory and scratches. e. Baria stated that the stone tile in question is quite soft and could easily be scratched during installation by knee pads and buckets. f. Although the record is not clear regarding the exact date that Respondent completed the tile installation, it appears that the work was completed in the latter part of January 2006 and Complainant filed the instant Complaint shortly thereafter, on or about February 2, 2006. g. Subsequent to filing the instant Complaint, the matter was assigned to one of the Registrar’s inspectors. The inspector convened a jobsite inspection and issued a Corrective Work Order (“CWO”) on April 3, 2006, directing Respondent to accomplish specified remedial work within a stated period of time. Respondent was required to remove haze from the tiles and to correct the operation of a sliding family room door which failed to operate properly after the tile installation. h. The April 3, 2006 CWO did not require Respondent to do anything about the scratches, based on the inspector’s conclusion that Complainant failed to report the scratches in a timely manner. i. Notwithstanding the findings contained in his April 3, 2006 CWO, on May 4, 2006 the inspector issued a second CWO, revising his earlier conclusion, indicating that Complainant found the scratches in the tile in a timely manner and directing Respondent to correct the scratched tiles. j. Eventually the parties convinced the inspector to convene another jobsite inspection to show which tiles were referenced in his May 4, 2006 CWO. On June 19, 2006 the inspector issued a third CWO, in order to clarify which tiles he believed were damaged by Respondent during installation. This directive specified numerous tiles that required corrective work from Respondent and also indicated that the inspector determined that the scratched tiles on this directive were most likely caused by knee pads and/or buckets. k. Complainant was not satisfied with the inspector’s final CWO, because she believes that Respondent damaged many more tiles. l. Although Respondent disagreed with the inspector’s findings in the June 19, 2006 directive, he testified that he tendered the performance of corrective work on the specified tiles but Complainant denied him access unless he corrected the entire floor. m. Complainant contends that Respondent merely offered to replace the scratched tile and wanted her to pay for replacement tile. Respondent testified that he knew Complainant had about ½ of a pallet of leftover tile in her garage. Complainant contends that she does not have any leftover tile. However, the Registrar of Contractors’ inspector also testified that he viewed tiles in Complainant’s garage and that the swirl marks on the tile in the garage were similar to the swirl type marks that he found on the tile installed in the home. n. Although Respondent apparently complied with the original CWO requirements, compliance with the June 19, 2006 CWO was not accomplished. However, the facts presented herein would militate for the conclusion that the failure to comply with this CWO was due to communication problems with Complainant and Complainant’s denial of access. o. Complainant has not paid Respondent any portion of the contract price for this project.

3. It is determined and held that the weight of the credible evidence of record is sufficient to support a finding that during the course of the tile installation Respondent scratched the tiles described in the June 19, 2006 CWO. The remaining tiles claimed as damaged by Complainant are found to have swirl marks caused at the factory and thus, not the responsibility of Respondent.

4. The scratching of the tiles set forth in the June 19, 2006 CWO is found to constitute substandard and unacceptable workmanship and, as such, is also viewed as a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

5. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed the absence of any prior disciplinary sanctions on the Registrar of Contractors’ current record regarding Respondent. However, the record does show that three (3) matters were resolved or closed subsequent to issuance of a Corrective Work Order or Citation. Therefore, Respondent’s prior record is properly deemed to be fair and thus, is viewed as neither a matter in mitigation or aggravation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (7), and (3); namely Rule R 4-9-108.

2. Complainant did not present any evidence regarding the charge that Respondent violated the provisions of A.R.S. § 32-1154A (13); namely A.R.S. § 32-1124B.

3. The facts presented herein were inadequate to support any finding of a violation of the spirit and intent of A.R.S. § 32-1154A (23).

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-48 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished one of the following:

a. Performed appropriate and effective remedial work on the scratched tiles set forth in the June 19, 2006 CWO, a copy of which is attached hereto, or b. Concludes other mutually acceptable arrangements with Complainant.

It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and, in that event this Citation (no. G06-0922), together with the Complaint upon which it is based, shall be closed. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

Done this day, December 28, 2006.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2006, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 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