ALJDEC decisions subject to certification as final

07F-S0186-ROC · Registrar of Contractors · 2008-07-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 9th, 2008; 9:00 a.m. APPEARANCES: Complainant, Mr. Charles Sturgill, represented himself. Respondent, Arizona Premier Tile Company, LLC, doing business as AZ Premier Tile and Stone Co., was represented by Mr. Rick Averiano, Managing Member ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The administrative hearing of this matter was held in the Office of Administrative Hearings, Tucson. Testimony was heard and other evidence admitted to the record, and based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. Respondent, Arizona Premier Tile Company, LLC, doing business as AZ Premier Tile and Stone Company, is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class K-05 License number 195726.

2. Complainant, Mr. Charles Sturgill, contracted in writing with Respondent on or about April 3rd, 2007, for Respondent to fabricate and install granite countertops in Complainant’s Sierra Vista, Arizona residence for $6,244.00. 3. Respondent timely performed the installation, but after doing so, Complainant was dissatisfied with the workmanship and Respondent’s allegedly unprofessional conduct. Complainant filed the instant Complaint in the Registrar of Contractors on April 18th, 2007. The Complaint lists six alleged instances workmanship defects or otherwise unprofessional conduct by Respondent. 4. The Complaint was assigned to Registrar of Contractors Inspector Mike Nieves who conducted a job site inspection on April 30th, 2007. As a result of his inspection Inspector Nieves issued a written Corrective Work Order to Respondent dated May 2nd, 2007. The Inspector’s CWO states his opinion that as to five of the six items, no corrective action is required under all applicable industry and agency standards. However, as to one item, that of the alleged “Chipped Granite Master Bathroom Countertop, Sinkholes, fixture unable to cover,” the Inspector did conclude that the Respondent needed to correct that one item by appropriate means. The CWO allowed Respondent 15 calendar days to make the correction, which was a reasonable amount of time. Respondent did return within the allowed time frame and did make corrections to the countertop. Inspector Nieves testified at the hearing, and part of his testimony was that he returned to the job site on July 3rd, 2008, and saw that Respondent had made corrections to the countertop in conformity to his CWO. 5. There remained a balance due on the contract amount, but the parties had fallen into a dispute over the workmanship, and therefore payment became an issue. Prior to the filing of the administrative Complaint in the Registrar of Contractors, Respondent placed telephone calls to Complainant in which Respondent threatened to place a lien on Complainant’s residence if payment was not forthcoming. The record contains no evidence that Respondent was using any profanity in the phone calls. These telephone calls formed the basis of another of Complainant’s allegations of unprofessional conduct. 6. At the administrative hearing the only issues remaining and about which any substantial evidence was placed into the record, concerned the telephone calls and one area on the master bathroom marble countertop that Inspector Nieves had not ordered to be corrected. This Complainant referred to in his Complaint as a crack. 7. As to that area on the countertop, it is found to be located in a line running from the front of the sink to the face of the counter, a length approximately 4” to 5”. 8. The central issue as presented to the record by the parties is whether the line is a fissure or a crack. Evidently, a crack is more serious than a fissure and requires rather extensive repair work, while a fissure is a naturally occurring and commonly found condition in marble, and requires much less in the way of corrective action, if any at all. 9. Inspector Nieves testified that the line appeared to him to be a fissure, but he could not say with absolute certainty. Respondent Mr. Rick Averaino, the owner of Respondent LLC, testified. He has years of experience in the industry, and testified that the line in Complainant’s marble is a fissure, not a crack. 10. Complainant produced a hearsay statement of a Mr. Greg Davis, who operates The Granite Gallery, Inc., another granite fabricator and installer in Sierra Vista. According to the statement, Mr. Davis saw the line in the countertop and he stated that it is a crack, not a fissure. There is equally conflicting hearsay evidence as to whether or not Mr. Davis is accredited by the Marble Institute of America. 11. So the evidence as to whether the line is a crack or a fissure is almost evenly divided. The Respondent who has nearly a quarter- century experience in the field says it is a fissure, but he is obviously an interested party, which must be taken into consideration. Mr. Davis said it is a crack, but he did so in hearsay, not in testimony at the hearing subjecting him to cross- examination by the Respondent, and his business is in direct competition with Respondent’s in a relatively small town, all of which must be taken into consideration. The only independent voice is from the Inspector, who testified that the line appeared to be a fissure, but he could not be absolutely sure. If any finding can be made, the evidence would seem to preponderate slightly, perhaps no more than 51%, that the line is a fissure. 12. Nevertheless, Respondent did return and took some corrective action to improve the condition of the fissure. The Respondent used a flowing epoxy to seal up the veining, and buffed the entire area to consistent sheen. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S 32-1156, and A.R.S. 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. 32-1145.A.7, 23, and 3 (namely, A.A.C. R4-9-108, Workmanship Standards). 3. Complainant has brought this Complaint and must prove the allegations contained therein by a preponderance of the evidence. A.A.C. R2-19-119. See: Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 4. There is insufficient evidence in the record as a whole to prove that Respondent’s workmanship or conduct as a licensed Arizona contractor violated A.R.S. 32-1154.A.7, 23 or 3 in any particular as alleged in the instant Complaint. All workmanship items appeared to have been appropriately performed and/or corrected, and a contractor telephoning to inform a customer who has not paid in full that he intends to place a lien on the property, without more, is no violation of the Arizona contractors’ laws. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint S07-0186, together with the Complaint on which it is based, be dismissed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, then the effective date of the Order shall be 40 days after the date of that certification.

Done this day, July 14th, 2008.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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Office of Administrative Hearings 100 N. Stone Ave.,, Suite 704 Tucson, Arizona 85701 (520) 628-5488