ALJDEC decisions subject to certification as final

07F-1320-ROC · Registrar of Contractors · 2007-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 22, 2007

APPEARANCES: Complainants appeared on their own behalf and Respondent appeared through its employee, Ted Bradford (“Bradford”). 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. Complainant retained Respondent to install marble tile in specified areas of their home. Complainants allege certain deficiencies in the work performed by Respondent and same are discussed in the findings below.

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

a. Complainants presented testimony that the tile floor installation was deficient due to hollow tiles, loose tiles, uneven tiles, crooked grout lines and failure by Respondent to install a sealant for the field tiles and an enhancer for the decorative border tiles. Ultimately, Complainants filed the instant Complaint with the Registrar of Contractors. b. After receiving the filed Complaint, the matter was assigned to one of the Registrar’s inspectors. The inspector appeared at the instant hearing and presented testimony in regard to his findings. c. The inspector initially convened a jobsite inspection, in order to investigate the issues on the Complaint. As a result of the inspection, the inspector issued a Corrective Work Order (“CWO”), requiring Respondent to accomplish specified remedial work within a stated period of time. The report indicated that the project was not completed, there were numerous hollow tiles, lippage was evident on a number of tiles, missing areas of grout, and tiles were loose. d. The inspector returned to Complainants’ home for a pre-hearing inspection and testified that the hollow tiles were corrected, the project was completed, and the loose tiles had been fixed. However, he still found lippage issues in numerous areas, wherein the tile was set into the floor beyond 1/32 of an inch, there were areas of missing or inadequate grout, the deco-tiles were not set level, there were tiles missing on the garage service door threshold, and grout lines were not lined-up properly. e. The inspector could find no documentation, indicating that Respondent was obligated to install the sealant and the enhancer. f. Bradford testified that he had merely advised Complainants regarding what type of sealant and enhancer to buy, if they wished to apply same to their floor. However, he stated that he never agreed to install these products to the floor. g. Complainants were unable to produce any written evidence at the hearing to show their entitlement to an enhancer or sealant application on the floor. h. Letha Tiburzi presented uncontroverted testimony that she has found thin-set material on her garage floor and on the sidewalk.

3. The weight of the evidence of record was sufficient to support a finding that the tile floor installation remains substandard and unacceptable, as manifested by excessive tile lippage, grout lines that are not properly lined-up, deco-tiles that are not set level, missing or inadequate grout, missing tiles on the garage service door, and thin-set spillage on the garage floor and areas of the sidewalk. These deficiencies are attributable to Respondent and need to be corrected.

4. The items set forth in Finding of Fact no. 3, above, demonstrate a failure by Respondent to fully comply with the issued CWO.

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. Therefore, Respondent’s prior record is properly deemed to be good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

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 K-48 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has complied with one of the following conditions:

a. Corrected the deficiencies set forth in Finding of Fact no. 3 in a proper workmanlike manner, or b. concludes other mutually acceptable arrangements with Complainants.

It is further recommended that if Respondent complies with one of the above-described conditions on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the foregoing license suspension, if any, that Respondent’s Class K-48 license be placed on a period of 60 days disciplinary probation. This additional disciplinary penalty shall commence on the effective date of the Order entered in this matter or the date on which notice of Respondent’s compliance with the terms of this Order is filed with the Registrar, whichever is later. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $200.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent , as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered. 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, October 29, 2007.

______________________________________ Mark A. Silver 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826