ALJDEC decisions subject to certification as final

07F-M0127-ROC · Registrar of Contractors · 2007-09-19

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 30, 2007 APPEARANCES: Complainant: Bill and Rachel Johnston appeared, pro per. Respondent: Registrar of Contractors: Inspector Dennis Cook appeared on behalf of the Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The matter came for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated July 18, 2007. 2. At all times here relevant, Complainant Bill Johnston (“Complainant”) was the owner/occupant of a residence located at 11303 E. Flintlock Dr., Chandler, Arizona (“premises/project”). 3. Respondent Power Carpet and Tile LLC (“Respondent”) is a limited liability company which holds Arizona Contractor’s License No. 201817, Class C-08 (Residential Floor Covering) issued by the Registrar of Contractors (“ROC”) November 22, 2004. A review of the licensing database maintained by the RIC indicates that this license is current and that its qualifying party, Alaniz Dion Guajardo, resigned effective August 31, 2007. 4. Complainant filed a complaint with the ROC on July 19, 2006 wherein he alleged, inter alia, that the “tile chosen does not reflect tile installed in house [in that] the tile installed does not have the same characteristics as the tile sample picked such as: chipped edges, detailed on surface of tile, color contrast and overall tones are not present at all.” 5. Registrar of Contractors Inspector Dennis Cook (“Cook”) conducted a jobsite inspection on September 26, 2006. Thereafter, on October 10, 2006, Cook issued a letter wherein he determined that no action was required by Respondent and stated “it is the opinion of this inspector that the contractor has properly fulfilled the terms of the contract and the workmanship meets or exceeds the standards of the industry. The variation in the floor tiles is within the expected range for ceramic tile.” 6. On November 27, 2006, Complainant filed a correspondence with the Registrar of Contractors wherein he formally disputed Inspector Cook’s findings regarding the tile, requested that the complaint be re-opened and requested a hearing. 7. On April 19, 2007, the Registrar issued a CITATION AND COMPLAINT in Case No. M07-0127 charging Respondent with possible violations of A.R.S. §32-1154A 7 and 3 (namely, R4-9-108, the workmanship rule). 8. Respondent filed an answer on May 2, 2007 wherein it asserted, inter alia, a general denial and affirmatively asserted that the tile issue should be between Complainant and the tile distributor and/or manufacturer. 9. Prior to proceeding with the presentation of evidence, Complainant made an oral motion to amend his complaint to add his wife, Rachel Johnston (“R. Johnston”), as a co-complainant. Respondent did not object to the motion which was thereafter granted. 10. At the hearing, Complainant testified and submitted Exhibit B which was marked, admitted over objection and considered. R. Johnston also testified and Ralph Kaiser (“Kaiser”), owner of the subject tile distributor, Kaiser Tile (“Kaiser Tile”), was also called to testify by Complainant. 11. John Michael “Jack” Lapota (“LaPota”), member/manager[1], testified on behalf of Respondent and submitted Exhibit 1 which was marked, admitted and considered. 12. Inspector Williams testified on behalf of the Registrar of Contractors and described his observations and conclusions regarding his September 26, 2006 jobsite inspection. 13. From the evidence elicited at the hearing, the following salient facts are important to note: a. Complainants acted as owner/builders of the subject residence. b. Prior to and/or during the process of construction of the project, Complainants went to Kaiser Tile and selected “Tuscany Noce” to be installed in the premises. c. A factual dispute exists as to whether the tile installed in the premises is the same as observed and ordered by Complainants at the tile distributor. R. Johnston testified that on the second day of installation Complainants noticed that the tile being installed was “drastically different” from what they purchased at Kaiser Tile specifically as it related to texture. R. Johnston further testified that Complainants did not dispute the color differences in the tile. R. Johnston further testified that a “Dion” from Kaiser Tile related that he believed there was a difference in the tile. Kaiser testified that the tile ordered by Complainants was the same as installed by Respondent, i.e., Tuscany Noce. Kaiser further testified that the subject tile is made from four (4) different mold patterns which result in four different texture markings and that it is common for a dye lot to have tiles from all four molds. LaPota opined that the tile installed on the project was of a dye lot consistent with the Tuscany Noce observed at Kaiser Tile though there might have been a slight difference in shade. Inspector Cook testified that a “V-3 variation” of the tile installed in the hallway of the premises existed which means that the amount of color in the tiles may vary in a dye lot. Cook further stated that the subject tiles are not identical but that the differences are very slight and minimal. Cook maintained the position originally set forth in his October 10, 2006 letter that the variation between the tiles was within acceptable Registrar of Contractors standards. d. Cook further opined that it is the responsibility of Complainants, who acted as the owner/builders on this project, to monitor work on the tile and ensure that was the correct tile being installed by the contractor.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. G06-1612 charged Respondent with possible violations of A.R.S. §32- 1154A 7 and 3 (namely R4-9-108). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. … 3. Violation of any rule adopted by the Registrar.

A.C.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. §32-1154A (3). Rule R4-9-108 provides that all work shall be done in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. This tribunal determines and concludes that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (3) and A.A.C. R4-9-108, the workmanship rule, as they pertain to any work performed by Respondent on the premises. Complainants presented no evidence that the installation of the subject Tuscany Noce tile did not meet minimum workmanship standards. 5. It is also determined and concluded that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (7). A factual dispute exists between the parties regarding whether the tile installed on the project was the same as that observed and selected by Complainants at the distributor’s showroom. Although they assert that it is not, this tribunal determines and concludes, given applicable ROC standards and Inspector Cook’s testimony regarding same, that evidence submitted by Complainants was of insufficient weight to carry the burden of proof. Based on the foregoing, it cannot be said that Respondent committed a wrongful or fraudulent act which caused Complainant substantial injury. Therefore, no violation of A.R.S. §32-1154A (7) has been proven.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that the entire Citation and Complaint in Case No. M06-0127 be dismissed.[2] Done this day, September 19, 2007.

______________________ Brian E. Smith 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 ________________________ ----------------------- [1] Mr. LaPota identified himself as a member/manager/owner of Respondent and the qualifying party for the license. However, a review of the ROC database does not reflect Mr. LaPota as being the qualifying party. [2] 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.

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