ALJDEC decisions subject to certification as final

07F-G1276-ROC · Registrar of Contractors · 2007-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 13, 2007 APPEARANCES: Complainant appeared through its president and qualifying party, Donald Geise (“Geise”) and Respondent appeared through its owner, Josh Ertel. 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. Pursuant to contract, Complainant retained Respondent to install a new ceramic tile floor on the second floor of residential construction project. Complainant alleges 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. Uncontroverted evidence of record established that the tile installation performed by Respondent, began to exhibit cracking in the tiles themselves. b. The tile was installed over a wood floor substrate, using a type of “wonder” board material, known as Hardibacker. Respondent installed the Hardibacker before he installed the new tile. c. Due to the cracking of the tile, Complainant filed the instant Complaint with the Registrar of Contractors. d. A jobsite inspection was convened by the assigned inspector for the Registrar of Contractors. The inspection took place on February 16, 2007. The inspector appeared at the instant hearing and provided testimony. e. The inspector testified that he observed the cracks in the tile. According to the inspector, he heard Respondent advise Geise that he would not repair the floor but that Geise could use the $1,000.00 retention money, that Complainant was still holding on the project, to use toward fixing the floor. f. After concluding his inspection, the inspector issued a Corrective Work Order (“CWO”), directing Respondent to correct the issue of the tile cracking . It needs to be noted that the CWO was not issued until February 21, 2007 (several days after the above-described jobsite inspection). g. Evidence of record showed that Complainant would not or could not wait any longer to have the floor repaired and therefore, on the same day as the above-described jobsite inspection, Complainant replaced the tile floor. In this regard, Geise worked on the remedial project, as well as hiring another licensed contractor, Jose Hugo Armendariz (“Hugo”) , to work on the project. h. Hugo appeared at the instant hearing and provided testimony. According to Hugo, the Hardibacker was not installed by Respondent in a correct manner. He found that the Hardibacker laps were not staggered and there was no taping of the joints of this material. He found that all of the cracking of the tile, seemed to follow the un-taped joint lines of the Hardibacker boards. i. Geise testified that he had no alternative but to replace the floor on the day of the jobsite inspection, due to the fact that he had been given a deadline from the general contractor on the project and said deadline was on or about the date of the jobsite inspection. In addition, the homeowners had taken the day off, in anticipation of having their floor replaced. j. Geise testified that he advised Respondent, at the jobsite inspection, that if he failed to correct the floor immediately, Complainant would take over the responsibility and replace the floor on that day. k. Justin Allen (“Allen”) appeared and testified for Complainant. Allen works for Complainant and apparently he was also involved in the jobsite inspection, as well as the floor replacement work performed by Complainant. Allen was shown to have extensive experience in the tile installation business. l. Allen corroborated the need to have the joints of the Hardibacker boards staggered, in order to provide adequate strength for the tile installation. He also did not find evidence that the "thinset" material, used to install the tile, was bonding properly to the Hardibacker boards. m. Geise also testified of the need to have the Hardibacker joints staggered, as well as the need to tape the joints of the Hardibacker boards. n. Respondent testified that he had information that there had been a flood in the home that soaked the tile installation area. He contends that this may have been a factor in the cracking of the floor. In addition, this water penetration information made him reluctant to perform any further work on the tile project.

3. It is determined and held that the weight of the evidence of record was sufficient to support a finding that the tile floor installation performed by Respondent was indicative of substandard and unacceptable workmanship, as evidenced by the areas of cracked tile, which are found to be attributable to the improper installation of the Hardibacker material. In addition, it is determined that Respondent failed to use the type of thinset material which would bind to the tile and the Hardibacker material.

4. The failure of the tile installation is also found to constitute a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

5. Since the remedial work performed by Complainant occurred prior to the issuance of the CWO, Respondent was effectively prevented from any opportunity to comply with the terms and conditions of said Agency directive. Therefore, the instant record does not support a finding of a violation of A.R.S. §32-1154A (23).

6. The instant matter is an administrative, disciplinary proceeding relating to a contractor’s license. The Registrar’s role in this matter is not one of a collection agency or judicial tribunal, but merely one duty- bound to determine whether a violation of this State’s contracting laws has occurred and, if so, impose a proper disciplinary sanction. Neither the filing of a complaint with the Registrar, nor a demonstration that a contractor violated state law, vests in a Complainant the right to receive any particular individualized relief or an order imposing any particular discipline. Moreover, the record presented herein is inadequate to support any finding that Complainant suffered a monetary loss over and above the amount of the $1,000.00 retainer that it has not paid to Respondent.

7. 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 that the instant complaint was the only Complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent 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 (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 C-08 license of Respondent shall be placed on a period of disciplinary probation for sixty (60) days. 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, November 13, 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