ALJDEC decisions subject to certification as final

06F-G1844W-ROC · Registrar of Contractors · 2008-03-11

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 4, 2008.

APPEARANCES: >The Complainants appeared in their own behalf. >The Respondent was represented by its attorney, Michael W. Wright, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

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

FINDINGS OF FACT

1. Respondent, Creative Touch Interiors (herein called “C.T.I.” or “Respondent”), is a corporate entity holding several contracting licenses issued by the Registrar. Such licenses consist of the following classifications, all cited in this administrative action; namely, a Class C- (Ceramic, Plastic and Metal Tile); a C-08 (Floor Covering), a Class B (General Residential Contractor) and a Class C-05 (Countertops, Stone and Solid Surface Materials).

2. Respondent was the specialty subcontractor, selected by the project’s general contractor, for the furnishing and installing of travertine tile and carpet floor coverings throughout Complainants’ residence.

3. The underlying complaint in this action was filed by Complainants in late June, 2006. Following a jobsite visit, the Registrar’s assigned Inspector confirmed the existence of various deficiencies and issued a written Corrective Work Order to Respondent in early August, 2006. It was shown that the original travertine tile installation work, as performed by Respondent, contained several relatively minor deficiencies that necessitated the undertaking and completing of remedial measures.

4. While attempting to comply with the Inspector’s directive, the unavailability at that time of sufficiently close matching additional travertine tile materials ultimately, after a prolonged search, led to a determination for Respondent to remove and to replace the entire interior tile flooring, shown to be over 1,600 square feet in area.

5. Following the aforesaid replacement work by Respondent, which was admittedly a great improvement over the prior installation, the sole items of complaint at the present time related to an excess of grout materials previously deposited on the surfaces of a great majority of the individual travertine tile pieces, as well as on some

adjacent door jamb and baseboard wood surfaces, and additionally to a very small section of carpeting that had pulled away from the tack-strip at a point where the two flooring materials abutted near the dining room and hallway.

6. Although the above-described grout deposits were shown to be generally unavoidable when performing the flooring installation work, it was not effectively disputed that the present quantity of unremoved grout materials that were allowed to remain in pockets commonly existing in the various surfaces of the natural travertine stone products was excessive, thereby indicative of a substandard condition. Further removal efforts on the part of Respondent are found to be required. It was understood that a total removal of all grout materials was impractical and virtually impossible.

7. In addition to the adversely affected floor tile surfaces, the credible evidence tended to indicate that excess grout materials had been allowed to remain on adjacent surfaces at several door jambs or casings and also on portions of the baseboards. These grout deposits must be effectively removed by Respondent from each of the identified locations, and arrangements for any necessary re-finishing or re-painting of the disturbed wall or baseboard surfaces resulting from such grout removal work must be concluded by or on behalf of Respondent.

8. Additionally, the carpeted area that had been disturbed during Respondent’s work is found to necessitate appropriate repair work on the part of Respondent to securely re-attach the lifted carpet material to the tack-strip.

9. The evidence demonstrated the existence of a visible stain on one portion of the tile surface. However, although Respondent had expressed a willingness to accomplish proper removal of such stain as well as to adequately address all of the tile and carpeting problems mentioned above, it appeared that the staining on the tile was not caused by any act or omission of Respondent in its original or replacement work or

by any inherent defect in the tile materials it had furnished. Instead, the stain was shown to have been traceable to wood-staining work on the staircase that was performed by other specialty tradespersons on this residential project. Consequently, while recognizing the commendable nature of Respondent’s expressed willingness to address the staining problem, no valid basis is found to exist for the inclusion in any Registrar’s Order of a requirement or condition for Respondent to remove the stain on the tile piece or pieces.

10. The Registrar’s assigned Inspector, who had visited the jobsite and issued a Corrective Work Order soon after the filing of the original complaint and prior to the floor tile replacement work, credibly testified that although the excess grout removal work and re-attaching of the loose carpeting still remained to be rectified, he concluded that Respondent had substantially complied with the spirit and intent of the issued directive. The perhaps overly long time duration for the almost fully completed remedial efforts was shown to have been attributable to the attempts to locate matching tile and thereafter to arrange for the selection of different and possibly upgraded tile materials.

11. A separate issue included in the filed complaint and mentioned in the issued Corrective Work Order was the alleged failure of Respondent to honor a prior promise to pay Complainants a specified daily sum for expenses and inconveniences resulting from the necessity to vacate the residence during the replacement tile work. However, this tribunal determined and so informed the parties that any such claims for consequential damages fell beyond the proper purview of the statutory powers of the Registrar and are matters more properly pursued in a civil court of competent jurisdiction and not as part of these administrative disciplinary hearings. It must be noted that the Respondent disputed any responsibility for payment of any previously promised daily amount based upon its subsequently incurred obligation to pay the project’s general contractor a portion of the total overall rental expenses in providing

alternate housing for Complainants’ family. Such portion appeared to be in a total sum that would be approximately equal to monies otherwise promised to Complainants for the 10-day work period involved at the stated daily rate.

12. No evidence was presented at the hearing that would tend to establish that Respondent abandoned or refused to perform after submitting a bid. Nor was there any sufficient showing that Respondent had committed a wrongful or fraudulent act resulting in substantial detriment to Complainants within the meaning of another charged subsection of the State’s contracting laws.

13. The evidence adduced at the hearing did not establish that any of the subject work by Respondent was undertaken or performed under is Class B General Contracting license. At all times material herein, Respondent was acting as a specialty subcontractor on Complainants’ project, bidding and performing construction work under its other three licenses cited in this proceeding.

CONCLUSIONS OF LAW

1. The evidence of record adequately established that Respondent, with respect to its Class K-48, Class K-08 and Class K-05 licenses, has violated the workmanship provisions set forth in A.R.S.§32-1154(A)(3); namely, Rule R4-9-108, A.A.C. However, no violations by Respondent of the provisions of A.R.S.§32-1154(A)(1), (7) or (23) were sufficiently proven hereunder. Additionally, no proof was presented that Respondent under its Class B license had committed any contracting law violations. ……. ……. …….

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that Respondent’s Class K-48, K-08 and K-05 licenses be suspended until the Registrar receives written proof that Respondent has accomplished proper grout removal remedial work on the floor tile, door and baseboard surfaces and has reattached the loose carpeting to the tack-strip, as set forth in Findings of Fact Numbered 6, 7 and 8, above.

It is further recommended that if written proof is filed on or before this Order’s effective date that Respondent has accomplished the above- described corrective work in a proper, workmanlike manner, then no license suspensions shall be imposed and the entire Citations and Complaints against Respondent’s said licenses, under Cases Numbered G06-1844, G06- 1844W and G06-1844Y, respectively, shall be closed.

It is further recommended that the entire Citation and Complaint against Respondent’s Class B license under Case Number G06-1844X be dismissed.

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 will be forty (40) days from the date of that certification.

Dated: March 12, 2008. OFFICE OF ADMINISTRATIVE HEARINGS

___________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906 -----------------------

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