ALJDEC decisions subject to certification as final

06F-M2162-ROC · Registrar of Contractors · 2007-03-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 21 February 2007 APPEARANCES: Complainant: Bob Burke. Respondent: Karl Kramer, Owner, KWK Inc.; Mike Fuentes, tile installer, KWK, Inc. Others: Paul Terek, Inspector, Arizona Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A). Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the under-signed Administrative Law Judge now makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the ROC.

FINDINGS OF FACT 1. Complainant purchased his home new in 1991, but decided to remodel in 2006. He went to Respondent in February 2006 to select floor tile to be laid throughout the home, and in March 2006, Respondent had the tile laid. Complainant was dissatisfied with the times as laid and ROC Inspector Paul Terek investigated in May and July of 2006, which resulted in the issuance of a Corrective Work Order dated 18 July 2006, which stated in pertinent part, “The Contractor should complete the repairs to the floor tile and grout joints at the entry, knee wall, kitchen, hall and master bath as per the agreement using appropriate means”. There is much disagreement between the parties as to what exactly the “agreement” was. 2. The price of the tile job was to be $7491.22. A balance of $1991.22 is still outstanding. 3. Respondent has done between 5000 and 6000 floor carpeting and tile jobs in the Sun Lakes area where Complainant’s home is located. Respondent was concerned with Complainant’s attitude and demeanor at the very outset of the job. Complainant’s confusion and inability to make a tile selection concerned Complainant greatly. It appeared that nothing Respondent did could make Complainant happy. 4. Complainant’s initial selection of tile was from a lot that had been discontinued, but there was enough tile on hand and available from other sources to complete Complainant’s job as initially envisioned. However, as the job progressed, Complainant demanded that the dining room be tiled also. There was now not enough tile to complete the job, with no chance of obtaining more. Accordingly, the entire job was ripped out, and Respondent started again with a new tile selection. 5. Respondent experienced Complainant’s rejection of crew after crew Respondent sent to install the tile. Complainant was continually displeased with the workmanship of the crews. Respondent had workmanship problems with Johnny Blanco, the initial installer of Complainant’s tile, but he was replaced, and Mike Fuentes was put on the job. 6. Mr. Fuentes went out to Complainant’s home in September 2006 to replace some hollow sounding tiles. He expected to replace 10-15 tiles. When he arrived, he saw that Complainant had marked ~200 tiles for replacement. He also noted the refrigerator water line faucet was leaking, and that the heat pump over the hallway was dripping condensate in the house. Fuentes confirmed the heat pump leak with “Woody”, who was inspecting the heat pump at the time. Both leaks were damaging the tile. In addition, concrete can retain water when kept wet, and will cause the thinset adhesive on tile not to adhere properly to the concrete. Many of the tiles Fuentes pulled up had not adhered to the concrete floor very well, and Respondent opined that the hear pump condensate leak could be responsible for the poor tile adhesion. 7. Fuentes replaced ~300 square feet of tile and regrouted the entire house in order to have the grout match throughout the house, and sealed the tile. He also tiled the laundry, at Complainant’s request. Fuentes left the house for a short time, and when he returned, Complainant complained that several of the laundry room tiles sounded hollow. Fuentes told Complainant that tiles will sound hollow when the thinset is still wet, and feared that Complainant had been walking on the newly laid tiles before the thinset had dried, thus moving them out of alignment. The work took about 4 days in September, which was the last work Respondent did on the job. 8. Inspector Terek examined the job in May 2006 and 13 July 2006, at which time the job still appeared to be in a state of repair. It was from these inspections that the Corrective Work Order was issued. A pre- hearing inspection was conducted on 12 February 2007, at which time he found some minor discrepancies in the work: A chip in the entryway threshold grout, two tiles with 1/32” excess lippage in front of the refrigerator, marginal excess lippage on one tile in the laundry, about 3’ of grout near the refrigerator that required re-grouting, about 18” of latex grout laid along a baseboard seam in the master bath that looks like it was used as a demonstration that should be replaced, and some broken tiles stacked on the patio that should have been carted away after the job was complete. He also noted some discoloration in the grout in the laundry room and toilet area, which was probably due to subsequent water staining. At the pre-hearing inspection, Complainant would not let Respondent into the home to observe any of the discrepancies that Mr. Terek detected.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. Construction work, such as that at issue in this case, is not an exact or perfect science. It is not uncommon in the industry to have corrections, repairs, and replacements of resultant poor workmanship prior or subsequent to completion of a particular project in order to bring the final work product up to appropriate industry standards. In this regard, a contractor should be given a reasonable opportunity to complete necessary remedial work. See ARS §32-1154(A)(23). 3. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant has failed to sustain the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated ARS §32- 1154(A). The evidence adduced at hearing make it amply clear that Respondent has done everything humanly possible to satisfy the demands of Complainant, from changing styles of tile in mid-construction, to tearing out all the tile and starting again. It also appears that Complainant was complicit in many of the problems Respondent faced with this job. The poor tile adhesion was most probably caused by the water-saturated concrete floor caused by the refrigerator waterline and the heat pump condensate leakage. The excess lippage of tiles are just as easily explained by the Complainant walking on the tiles before they were set and dry, as by poor workmanship. The discolored/mismatched grout was more due to subsequent water stainage caused by Complainant actions that by any color variation in the grout caused by Respondent. In short, those few discrepancies the ROC inspector detected could just a easily be explained by Complainant‘s actions as by an allegation of poor workmanship by the Respondent. All other enumerated items of the complaint, presented at the instant hearing, were either corrected, not found to constitute a prejudicial deviation from plans and specifications, not adequately shown to be workmanship deficiencies, or matters upon which Complainant failed to sustain the requisite burden of proof.

RECOMMENDED DECISION In view of the foregoing, it is recommended to the ROC that this citation, together with the complaint upon which it is based, be dismissed, that no action be taken against Respondent’s license, and that this case be remanded back to the ROC for further appropriate disposition. Done this day, March 12, 2007

______________________________________ Maurice McWhirter Administrative Law Judge

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

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

By ___________________________ -----------------------

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