ALJDEC decisions subject to certification as final

06F-M1912-ROC · Registrar of Contractors · 2007-03-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 18, 2006 and March 8, 2007. APPEARANCES: Douglas and Celia Stell appeared personally. Shawn Carroll Dikes appeared personally and was represented by his attorney, Michael A. Schern, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Shawn Carroll Dikes, doing business as S and R Construction Company (“Respondent”), is the holder of License No. 131611, a Class B- contracting license issued by the Registrar of Contractors. 2. On or about March 10, 2005, Douglas and Celia Stell (“Complainants”) entered into a written contract with Respondent for the construction of a new residence in Apache Junction, Arizona. 3. On or about October 11, 2005, a courtesy inspection was performed under the Registrar of Contractors’ Building Confidence Program. That inspection revealed that some floor tiles had lippage exceeding the 1/32” tolerance. 4. By letter dated April 1, 2006, Complainants informed Respondent that his company was denied further access to the property and requested the return of their house keys. The reason for the denial of access was the discovery of alleged damage due to Respondent’s workmanship. Complainants stated that the issue of further access “will be reconsidered after receiving an opinion and guidance from the ROC inspector.” 5. On May 16, 2006, Complainants filed a written complaint with the Registrar of Contractors alleging the following statutory and regulatory violations by Respondent:

After numerous attempts, phone calls, FAXes for the purpose of completing the outstanding work, we have had no response from the builder. Any final payment for “extras” is being held in escrow, as a motivation to complete the work and bring the contract to closure.

The itemized list of work to be completed is contained on the second sheet of this complaint. Supporting information is attached for your reference.

1. a. ROC Building confidence visitation (ZM06-059) by inspector Cook found that tile lippages exceeded the limit of 1/32”. Different colored grout was also observed, as a result of previously using all the spares to replace the tiles with the worst lippages. 1. b. Although we have repeatedly requested that the number of tiles needed be estimated by a competent, professional tile installer, this has not been done. 1. c. Without estimation of the number of tiles that need replacing, an arbitrary number of 30 tiles were ordered by Rebecca Dikes. (In our discussions with professional installers, we have been told that individual tiles can not be properly replaced and the number of tiles need [sic] was much higher.) 1. d. The 30 tiles arrived in December, 2005 and are in the builder’s possession. 1. e. As of the date of this complaint and in spite of numerous requests, no attempt has been made to have the tiles installed and no contact has been made with the selected installer. (We did request that the floor not be torn up during the month of February, but asked the builder to make preparations for the work during that time.) 1. f. We have repeatedly requested that proper precautions be taken to not make a mess throughout the house, when replacing tiles. When the master shower was replaced, the entire house had to be cleaned by the home owner, which took a number of days. 2. Grout, stain and/or glue haze and spots (possibly stain) on tile, mainly near rooms where wood floor was subsequently laid. 3. Nylon glides are missing on several sliding windows. Window subcontractor offer to mail glides to homeowner. 4. Rain water drips down the inside of the glass blocks in both the master shower and Jack-&-Jill shower. Stains were cleaned, but no fix appears to have been made. 5. Double closet doors are not hung at the same height. 6. Lower wall & molding on back of kitchen island is bowed out. Result of recent repair looks worse that the original problem.

Additional information and a complete list of fixed items are available upon request to establish a pattern of carelessness, negligence, and incompetence. Many items have been fixed by the home owner, rather than the builder, in order to ensure that work was done correctly. A copy of the ROC Building confidence visitation (ZM06-059) and complete Punch List are attached as reference material.

6. On or about May 16, 2006, Complainants filed the following addendum to their complaint:

April 3, 2006 addendum to complaint filed against S and R Construction on March 29, 2006

5. d. (New damage) During the last week of March, contractor attempted to straighten bowed pony wall by opening a hole in the wall and hammering a stud over. This broke open the sheetrock on the opposite side of the wall, which is the rear of the under-sink kitchen cabinet. Damage was discovered April 1, 2006. 1. h. (Update) It was discovered that most out-of-compliance lippages were addressed by building “grout ramps” between tiles of differing heights, rather than replacing tiles.

Due to several cases where recent corrective actions have resulted in damage that is worse than the problem then attempt [sic] to correct, Shawn Dikes has been excluded from the property. This exclusion was conveyed to Shawn on April 1, 2006 and will be reconsidered after receiving an opinion by the ROC inspector. It is my preference that all future corrective actions be performed by competent individuals, rather than Shawn Dikes.

7. In response to the filed complaint, the Registrar of Contractors’ assigned agency inspector, Ron Lamp, performed a jobsite inspection to view the alleged deficient workmanship. As a result of that inspection, Inspector Lamp issued a Corrective Work Order dated April 27, 2006, which provided the following:

Contractor to take any action to:

1. Properly repair tile lippage to meet industry standards. 2. Repair drywall in sink cabinet. 3. No Action on drywall dent by exterior door. 4. No Action on linen closet doors.

8. On June 8, 2006, Ralph Williamson, Director of the Ceramic Tile Institute of America, Inc. performed an inspection of Respondent’s tile installation at Complainants’ residence on their behalf. As a result of his inspection, Mr. Williamson’s prepared a report dated June 10, 2006. In his report, Mr. Williamson opined that the tile installation “failed for the following reasons: the finished floor tolerance is not within industry standards, the tile lippage is not within industry standards, the alignment of the tiles are not within industry standards, there were many hollow tiles, the grout joints are not within industry standards, cut tiles are irregular, there were no movement joints installed in the tile installation, tile was directly bonded to W.R. board in the master bath room, tiles were not centered in the master shower and the glass block ledge did not have the required pitch.” Mr. Williamson recommended that the entire tile installation be replace by a properly licensed contractor, who is bonded and insured. He further recommended that Complainants’ property be protected and that the house be cleaned by Respondent or his subcontractor. 9. On June 22, 2006, the Registrar of Contractors issued a Citation and Complaint in this matter and Respondent timely filed an Answer to it. 10. On August 16, 2006, Respondent’s expert, Priority One Inspections performed an inspection of the tile installation. That inspection resulted in a written Hardsurface Report dated August 22, 2006. The Priority One inspector made the following comments: 1) Inspector found 3 - 4 tiles in the back entry/dining area with lippage of .070 to .100”. 2) This same area had a raised area and then a dip that ran off 3/8” in 6 feet. ANSI Tile standard for subsurface tolerance is ¼” in 10 feet and 1/16” in one foot. This 3/8” in 6’ exceeds standard. 3) Inspector found an additional 5 – 6 tiles throughout the entire home that measured .060” to .070” of lippage which is right at 1/16”. H/O had marked two of the tiles. Note: Lippage standards for large bodied tiles is 1/32” or 0.031”. 4) Inspector found only one hollow sounding tile at time of inspection. There was no movement in this tile, no cracks in the tile and no cracks in the grout surrounding the tile. 5) Grout lines were 3/16” wide with only a minor 1/32” deviation at any joint intersection.

11. The Priority One Hardsurface Report contained the following Conclusion:

Hollow sounding tiles that are not cracked or loose do not require any correction. Lippage of 1/32” is allowed. There are about 9 – 10 tiles that have excessive lippage. The hump in the dining area exceeds the ¼” in 10’ for uneven subsurface tolerance.

12. By letter dated September 15, 2006, Respondent requested that Complainants grant him access to their home to perform remedial repairs to the tile floor and shower. 13. On or about September 15, 2006, Complainants responded to Respondent in writing denying his request for access and requested that he provide them with the following information before they would grant access:

• Procured sufficient, matching material. • Name and credentials, in writing, of the subcontractors who will be performing the work. • A written plan of action as to how all aspects of the project will be handled, including • Steps to be taken to minimize dust through out the house • Steps taken to move and protect contents of the house • What professional company will be responsible for cleanup • What plumbing contractor will be responsible for removing and reinstalling plumbing fixtures • Who will be responsible for replacing molding

14. By letter dated September 19, 2006, Respondent sent the Registrar of Contractors and Complainants a letter stating that he had been denied access to complete remedial repairs. 15. At the hearing Complainant Celia Stell testified that her first impression of the installed tile floor was that it did not look very good. That testimony is contradicted by a handwritten letter dated September 16, 2005 written by Ms. Stell to Respondent and his wife, which reads:

We are so excited. The house is beautiful. Obviously we will not be able to “occupy” our home even with an “occupancy permit,” without electricity – but are grateful that our belongings can be stored. I guess Doug and Shawn are planning a “walk – through” this afternoon.

16. Mr. Stell testified that the funds he identified in the Complaint as being placed in escrow while in dispute with Respondent were actually retained by Complainants. 17. There was credible evidence that Complainant Doug Stell performed some remedial repairs to tiles installed by Respondent. Mr. Stell did not take any extraordinary precautions to safeguard his residence or the contents of his home when he performed such repairs. Respondent is no longer responsible for any remedial work to the tile work performed by Mr. Stell. 18. There is credible evidence that deficiencies in the tile installation can be accomplished without a complete tear out of the floor. 19. Respondent’s installation of the tile floor is below minimum workmanship standards. 20. Respondent testified that he has sufficient number of replacement tile from the same lot of the tile installed to perform the required repairs. 21. Although not specifically mentioned in Complainants’ Complaint or addendum, Respondent had sufficient notice of the issues in Complainants’ shower and those issues were litigated at hearing. Respondent testified that green board and wonder board were used before the tile was installed. Complainants presented evidence of what appears to be green board at the shower head, but they did not perform any destructive investigation to prove or disprove Respondent’s testimony of the use of green board, wonder board and tile in the shower. 22. Respondent should take any required action to provide positive drainage at the shower ledge. 23. Complainants unreasonably denied Respondent access to the jobsite to perform remedial repairs, including those required by the Corrective Work Order. 24. Any allegation set forth in Complainants’ Complaint and addendum not specifically addressed above is deemed to either meet minimum workmanship standards or lacks sufficient evidence of record to support a finding of a statutory or regulatory violation by Respondent. 25. Respondent’s failure to install the tile floor to minimum workmanship standards is a wrongful act that substantially injured Complainants. 26. The instant record failed to establish any grounds to justify a departure from a long-standing policy of the Registrar of Contractors to allow a contractor a reasonable opportunity, after a hearing, to correct any determined deficiencies in his work. Although Respondent is free to choose the method of correcting the deficiencies and is not necessarily required to completely replace the tile floor, he is on notice that any contractor that elects to perform less extensive and less expensive remedial work does so at his peril to achieve results which are effective, adequate and otherwise acceptable.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar of Contractors. 4. Respondent violated the provisions of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar of Contractors. 5. Respondent did not violate the provisions of A.R.S. § 32-1154(A)(23), as cited in the Citation and Complaint issued by the Registrar of Contractors.

RECOMMENDED ORDER

Respondent’s Class B- license shall be suspended on the effective date of the Order entered in this matter until the Registrar of Contractors receives written proof that Respondent has repaired the tile floor and shower ledge to minimum workmanship standards.[1] If the Registrar of Contractors receives written proof that Respondent has repaired the tile floor and shower ledge to minimum workmanship standards on or before the effective date of the Order entered in this matter, then the above-provided license suspension shall not take place, and the Citation and Complaint in Registrar of Contractors’ Case No. M06-1912 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 will be 40 days from the date of that certification.

Done this day, March 28, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Any denial of reasonable and timely access by Complainants may result in Respondent being excused from the requirement that he perform those repairs as a condition to avoid disciplinary action.

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