ALJDEC decisions subject to certification as final

06F-T1197-ROC · Registrar of Contractors · 2007-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 7, 2007, at 1:30 p.m. APPEARANCES: The Complainants appeared through Jerry Riddle. The Respondent appeared through its attorney, Bryan Folger. ADMINISTRATIVE LAW JUDGE: M. Douglas

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 is the holder of a Class C-48 License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed a new custom floor in the Complainants’ residence. The floor consists of travertine tiles surrounded by strips of cherry colored wood flooring. 3. The Complainants were extremely dissatisfied with the Respondent’s workmanship and demanded that it correct its work to their satisfaction. When the Respondent failed to properly correct its work despite an opportunity to do so, the Complainants filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 5. The Corrective Work Order provides, in pertinent part, as follows: “…the following action must be taken no later than 15 calendar days from the date of this letter…1. Correct/replace kitchen floor covering defects throughout by appropriate means, including unacceptable tile and wood lippage and poor wood joints (gaps and vertical and side offsets). 2. Color of tile is acceptable.” 6. The Respondent then performed corrective work on the Complainants’ floor and on August 4, 2006, mailed a written communication that it was in compliance with the Corrective Work Order. 7. On August 24, 2006, the Complainants filed a request for an administrative hearing. The Complainants’ request provides, in pertinent part, as follows: “We are very dissatisfied with the work done before and after the Corrective Work Order assigned to Emery Tile on July 18, 2006. We are requesting a hearing please, as the work is not even close to be satisfactory.” 8. The matter was then set for an administrative hearing. Prior to the date of the hearing the assigned Agency Inspector conducted a pre-hearing inspection. 9. The assigned Agency Inspector testified that while the floor looked much better but compliance of the terms and conditions of the Corrective Work Order had not been achieved. 10. Credible testimony and evidence, presented at hearing, established the combination of the travertine tile and the strips of cherry colored wood flooring is an extremely difficult floor to properly install and will be equally difficult to properly maintain. 11. Credible testimony and evidence, presented at hearing, established the Respondent was fully aware of the composition of the flooring selected by the Complainants and had assured the Complainants that it could properly install the selected flooring. 12. Credible testimony and evidence, presented at hearing, established the following items in the Complainants’ floor still require proper correction: a) There are kitchen floor covering defects throughout the floor, including unacceptable tile and wood lippage, poor wood joints, damaged wood joints, and cracked tiles. The Respondent shall properly correct all kitchen floor covering defects throughout the floor by appropriate means. b) The Respondent failed to install a wood strip in front of the Complainants’ refrigerator. The Respondent shall properly install the missing wood strip. 13. The Complainants have expressed a reluctance to allow the Respondent another opportunity to correct the deficiencies in their floor. Although Complainants concerns, frustrations, and aggravation regarding the problems they have experienced with the construction of their new floor are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, a contractor must be given one last opportunity to complete necessary remedial work on their floor. 14. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. (32-1154 (A) (23) (Failure to take appropriate corrective action) and (3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, the Respondent’s Class C-48 License be suspended until the Registrar of Contractors receives proof that the Respondent has properly complied with the terms and conditions of the written Corrective Work Order issued in this matter and has properly installed the missing wood strip in front of the Complainants’ refrigerator. It is further recommended, if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter be closed. In the event of certification of this 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 the certification. Done this day, May 8, 2007.

______________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ Day of ____________, 2007, 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 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488