ALJDEC decisions subject to certification as final

07F-Y0244-ROC · Registrar of Contractors · 2008-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 28, 2008, at 9:00 a.m. APPEARANCES: The Complainants appeared through Phillip Rangel. The Respondent appeared through its attorney, Larry Suciu. 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 B- License issued by the Registrar of Contractors. 2. This is a residential matter where the Complainants purchased a new residence constructed by the Respondent. 3. There was no dispute that the original wood flooring in the Complainants’ new residence failed and the Respondent agreed to replace the failed wood flooring with a new porcelain tile floor. 4. There was no dispute that the Respondent completed the installation of the new tile floor, the Complainants were dissatisfied with the porcelain floor tile installation, and complained to the Respondent. 5. The Respondent inspected the new tile floor and agreed that corrective work was required but the parties were unable to agree to the extent of the corrective action needed. 6. The parties agreed to have the tile floor inspected by an independent tile expert from the Ceramic Tile Institute of America. The agreed upon floor expert inspected the tile floor and recommended the following: “There was a discussion with all parties that if the tiles were measured and marked by Ernie representing Flooring of America and myself with the homeowner viewing all procedures that the homeowner would accept our result of tile that had lippage, that were hollow and the wrong dye lot. This procedure took about 2 ½ hours and I had a total of 83 but after reviewing my figures the total is 92. After all tiles were measured we again had a discussion about the amount of tiles with the same dye lot that were available and we all agreed that we would need approximately 25 to 50 additional tiles in case adjoining tiles were chipped. It was also discussed that Flooring America would bring the new tiles to the Rangel residence for viewing before any tiles were removed. There was additional discussion on how the tiles would be removed and it was agreed upon by all interested parties at the inspection that Flooring America and the homebuilder would do a test area to determine the best way to proceed…After the tiles with lippage exceeding ANSI 137-1 standards, replacement of the hollow tiles and tiles with the wrong dye lot are removed and exchanged this installation would meet industry standards.” 7. The Respondent’s subcontractor (Flooring America) then started corrective work on the Complainants’ tile floor. During the corrective work the Complainants, the Respondent, and the Respondent’s flooring subcontractor became embroiled in an argument regarding the exact number of floor tiles which should be replaced. 8. When the Respondent failed to comply with the Complainants’ demands regarding the number floor tiles to be replaced the Complainants filed a formal Complaint, against the Respondent, with the Registrar of Contractors. 9. 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. 10. The Corrective Work Order provides, in pertinent part, as follows: “THE CONTRACTOR IS TO CORRECT BY APPROPRIATE MEANS THE FOLLOWING ITEMS: 1) The missing grout in the master bathroom, master bedroom, hall bathroom and the hall. 2) the missing tiles in the hallway, front entry, living room and dining area need to be replaced and grouted. 3) The lippage in the laundry room, kitchen-dining area and by the sliding back door area of the tiles needs to be corrected.” 11. Credible testimony and evidence, presented at hearing, established the Respondent’s flooring subcontractor once again began corrective work on the Complainants’ floor tile. During the construction process the Complainants became concerned about the ease with which the flooring contractor was removing the floor tiles. The Complainant felt that their tile floor was not properly installed, required removal and replacement, and caused the flooring subcontractor to stop the corrective work on their tile floor. 12. The Complainants actions, in stopping the performance of the corrective work set forth in the Corrective Work Order, are found to constitute an unreasonable denial of access. 13. When the parties were unable to resolve their differences regarding the method of correcting the tile floor the Complainants retained an alternative floor contractor to properly correct the tile floor. No further corrective action by the Respondent is required. 14. The Complainants seek, as restitution, their costs of correcting the tile floor, their costs of expenses relating to their expense incurred as a result of the problems with their tile floor, and damages inflected as a result of the tile floor. 15. The credible evidence of record adequately demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to the Complainants from the Respondent. 16. The Respondent’s position in this dispute is found under all of the circumstances to have been asserted in good faith; therefore, precludes a finding that a liquidated sum is owed to the Complainants for their alleged damages. CONCLUSIONS OF LAW 1. The Registrar of Contractors, acting through an administrative disciplinary hearing, is not empowered by law to adjudicate amounts alleged to be due and owing in the face of a good faith dispute on such amounts. 2. The Credible evidence or record supported a finding that the Complainants unreasonably denied access to the Respondent. Consequently the credible evidence of record is inadequate, and fails, to support any finding of the charged violations of A.R.S. § 32-1154 A. RECOMMENDED ORDER In view of the foregoing, it is recommended this Citation, together with the Complaint upon which it is based, be dismissed. 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 5, 2008.

______________________________________ M. Douglas 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 Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 www.azoah.com