ALJDEC decisions subject to certification as final

08F-2639-ROC · Registrar of Contractors · 2009-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 31, 2009. APPEARANCES: Rose M. Janton appeared personally. R N S Remodeling and Construction, Inc. was represented by its president and qualifying party, Ronald S. Schultz. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order:

FINDINGS OF FACT 1. R N S Remodeling and Construction, Inc. (“Respondent”) is the holder of License No. 152409, a Class B- contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Rose Janton (“Complainant”) accepted Respondent’s written proposal dated January 6, 2008, to perform the following scope of work: Remover all floor tile (existing and newly installed).

Due to the use of improper thin set mortar all tile that was installed up to this point will have to be removed and the mortar scraped off.

Scrape and remove all existing thin set mortar. Prepare floors for installation of new tile. Repair all cracks (tile to be supplied by owner). All debris to be removed from property.

R N S will supply correct thin set mortar. Original mortar used on installation was not approved for the tile that was installed and could have possibly caused improper bonding to the floor.

Install new floor tiles for all rooms as directed by owner. Price includes all labor and material.

Carpet and tack strips will be removed from living room and bedrooms. Floors will be cleaned and preped [sic] for new tile.

All carpet and pad to be removed from property.

3. The total contract price for the parties’ project was $9,350.00. Complainant paid Respondent 50% as a down payment, with the balance due upon completion. 4. By email to Respondent, Complainant further described her expectations as follows: Install tile and grout (C Cure Brand, color #40 Adobe) in entire house provided by owner

Hang plastic on cabinets, tape off closed doors, cover exposed furniture with plastic

Remove and discard old tile, carpet, pad and tack strip

Use Cure – Lastic crack suppression as needed

Provide Latex modified Porcelain quality mortar

Lay tile on diagonal angle

Move and reset refrigerator, washer, dryer and 2 toilets and replace wax ring (and bolts as needed)

Allow no more than [4 weeks] for completion of all work[1]

Existing wall base to remain

Remove and rehang doors as needed

Place tile around Murphy bed bolted to wall in small bedroom

Floor prep includes grinding to get ready for tile installation where needed

Close all air vents before starting work and be sure fan turned off each day on job

Repair broken or cracked tile or grout within one year of installation on one appointment

Move and reset 2 person furniture (I have 4 dressers, one table I need help moving)

Complete drywall repairs

5. Complainant continued to reside in a portion of her house, together with her two dogs, during the remodeling project. 6. On February 22, 2008, Complainant filed a written Complaint with the Registrar, which set forth the following Complaint items against Respondent: 1. Items stolen from home – waste baskets, dust pans, buckets, crescent wrench, screw drivers and more yet to be determined. 2. House left unlocked, door open. 3. Tile laid uneven, grout laid over spacers. 4. Tile laid with thin-set and grout same day without allowing time to dry. 5. Holes in wall caused during construction. 6. Faulty/poor dry wall repair. 7. Little dust abatement causing damage to kitchen appliances, contents of kitchen drawers. 8. Damage to garage door. 9. Damage to furniture, doors, molding. 10. Not working hours and days as promised. 11. Tile in several rooms laid with uneven spaces, removed and twice – owe for additional need of tile, thin-set + grout. 12. Deliberate destruction of property – hole dug under backyard gate allowing dogs to run away. 13. Hall bathroom tile torn up & toilet reset incorrectly. 14. Deliberate use of fans while house filled with dust twice.

7. The Registrar designated Complainant’s Complaint as Case No. 08-2639. 8. On March 1, 2008, Respondent’s License No. 152409 was suspended by operation of law for nonrenewal. As a result, Respondent was prohibited from performing any contracting. 9. As a result of the filed Complaint, the Registrar’s assigned inspector, Dennis Cook, performed a jobsite inspection to view Respondent’s workmanship. 10. After completing his jobsite inspection, Inspector Cook issued a Corrective Work Order dated April 4, 2008, which contained the following observation: Contractor should make the following corrections by appropriate means:

1. Properly complete all work, as specified in the contract documents. 2. Correct the poor tile cuts and inconsistent grout widths at the door jambs and baseboards, as per the jobsite agreement. 3. Correct carpet fibers embedded in the perimeter grout where they occur. 4. Remove toilet, properly tile completely underneath the base of the toilet, reset the fixture securely and re-caulk. 5. Properly complete repairs at drywall, texture, and touchup painting of same.

It was not possible to confirm the contractor’s responsibility for the following items at the jobsite inspection and no corrections is [sic] required at this time:

1. “Items stolen from home” 2. Loose baseboards 3. Marks on walls and doors. 4. Damage to furniture and appliances. 5. “Hole dug under backyard gate” 6. “deliberate use of fans while house filled with dust.”

Floor levelness was within standards and no excessive tile lippage was shown. Nominal centerlines of tile joints were straight. Variations in width of grout lines was acceptable, in the opinion of this inspector, due to the variations is [sic] size between individual tiles.

11. By letter dated April 14, 2008, Respondent requested Complainant’s cooperation in making arrangements for Respondent to comply with the Corrective Work Order. 12. Inspector Cook issued an Amended Corrective Work Order, which was identical to the original one but contained the following statement: “License # 152409 issued to R N S Remodeling was suspended for nonrenewal on 03/01/08 and cannot do or subcontract the following work until the suspension is lifted.” (Emphasis in the original). 13. The Registrar issued a Citation and Complaint in Case 08-2639 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (2), (7), (23) and (3), namely A.A.C. R4-9-108. 14. The Registrar forwarded Case No. 08-2639 to the Office of Administrative Hearings, an independent agency, for formal hearing. 15. On April 13, 2008, John Heltzel, a certified flooring inspector, performed a jobsite inspection of Respondent’s floor tile installation. 16. On April 13, 2008, Mr. Heltzel wrote a Hard Surface Inspection Report, which contained his following comments: I examined numerous uninstalled tiles on location (about 20) and found no more than 1/32 variance in the size. I also measured the installed tiles and found similar variances. Immediately upon entering the home I was able to see irregular spacing between the tiles and irregular spacing at corners, see photos. The photos are a true representation of all the irregular spacing problems throughout this tile installation. I also found exposed saw cuts at door jambs on custom cut tiles, spacing on tiles next to baseboards with tiles directly adjacent having no spacing between the baseboard and tile whatsoever and unnecessary amounts of grout left uncleaned from baseboards and corners, see photos.

17. In his Hard Surface Inspection Report, Mr. Heltzel concluded, among other things, the following: “This tile installation looks like it has been installed by someone who has never installed tile before or by someone who simply did not care about the outcome. 18. Also in his report, Mr. Heltzel made the following recommendation: I recommend this floor be completely removed and replaced by a quality oriented installer. Using the Bluebook Best 7.5 Estimating software, available at http://www.bluebook.net which shows average prices by geographic area, a reasonably close estimate for removal, floor prep, installation of new tile and cartage to dump for old material is $7,958.70. This does not include material (replacement tiles) or repairs to drywall, baseboards or repainting. An option to replacement is some other form of compensation agreeable to Ms. Janton.

19. At hearing, Mr. Heltzel testified that Respondent’s work fell below minimum workmanship standards. He opined that the tile work installed by Respondent needed to be removed and replaced. 20. Complainant’s neighbor, Ellie Seitz, testified that Complainant maintained an immaculate house. Ms. Seitz was not in Complainant’s residence during the time Respondent performed its work on the project. 21. Inspector Cook’s testimony was consistent with his Corrective Work Order and Amended Corrective Work Order. 22. Inspector Cook testified that the items listed in Complainant’s Exhibit 8, which were items allegedly stolen by Respondent or its workers, exceeded the list of items contained in Complainant’s Complaint. Complainant did not amend her Complaint to include the additional items. Therefore, the Administrative Law Judge ruled that fundamental due process required that such additional items be deemed outside the scope of the Complaint. 23. Complainant testified that Respondent’s remedial tile work depleted her inventory of tile. There is a dispute between the parties as to whether or not additional matching tile was available to complete the project. 24. Complainant testified that she had to leave her residence and stay with friends, and later stay at a hotel, to avoid the excessive dust generated by Respondent’s work. She seeks compensatory damages from the Registrar for such expenses, as well as expenses for her dogs. 25. Complainant’s request for reimbursement for compensatory damages should be resolved by a civil court of competent jurisdiction. 26. Ronald S. Schultz is Respondent’s president and qualifying party. 27. Mr. Schultz testified that Respondent covered and taped off everything in Complainant’s residence prior to commencing work. 28. Mr. Schultz further testified that the excavation of the existing tile in Complainant’s residence was unexpectedly messy. The removal of the existing tile took two and one-half days. He admitted that the removal of the existing tile created bad dust, but that it was unavoidable. 29. Mr. Schultz admitted that Respondent’s workers used fans, including Complainant’s kitchen exhaust fan, to remove the dust from the interior of Complainant’s residence. 30. Complainant failed to prove that the use of her kitchen’s exhaust fan caused damage to it. 31. After the removal of the existing floor tile, Mr. Schultz admitted that an individual named Ross, hired by Respondent to perform the new tile installation, did inferior work, as alleged by Complainant. Respondent terminated Ross and tore out his tile installation. 32. Respondent then hired an individual named Mario, who redid Complainant’s kitchen and bedroom work. During that work, Respondent had to move Complainant’s furniture and personal items in order to perform its work. 33. As to the allegation by Complainant that Respondent left her garage door open, Mr. Schultz testified that one of Respondent’s employees left the door from the interior of the garage to the interior of Complainant’s residence unlocked. Otherwise, the garage and the residence were secured. 34. At some point in time, Complainant put Respondent’s tools and equipment outside her residence. When Respondent’s workers returned to her residence, Complainant called the police, who escorted Respondent’s workers, with its equipment, off Complainant’s property. 35. Complainant testified that thefts of her property during the project caused her not to be trusting of Respondent and its workers. Mr. Schultz denied that Respondent was responsible for any thefts during the project. He noted that some items alleged by Complainant to have been stolen were later found. Complainant caused local law enforcement to remove Respondent from her property. 36. Complainant is found responsible for the quality and dimensions of the tile she furnished to Respondent for use in installing on her project. 37. Respondent should have raised any issues with the tile materials supplied by Complainant prior to installing such material. 38. Complainant’s allegation that Respondent damaged her side gate, resulting in her dogs escaping from her property, is not justified by the evidence. 39. Complainant’s additional allegation that Respondent caused damage to her drywall, baseboards, garage door, and other items listed in her Complaint are found to lack sufficient evidence of record to support a Finding of a violation. 40. Respondent’s installation of Complainant’s tile flooring is found to be deficient, as stated in Inspector Cook’s Corrective Work Order and Amended Corrective Work Order. 41. Respondent’s installation of Complainant’s tile flooring is found to be misaligned at every corner, as noted in Mr. Heltzel’s report. 42. Respondent’s installation of Complainant’s tile flooring is found to have failed to have removed at least one spacer, which was grouted over. 43. The suspension of Respondent’s contracting license by operation of law for nonrenewal is not legal justification for Respondent’s failure to comply with Inspector Cook’s Corrective Work Order and Amended Corrective Work Order, which required Respondent to perform remedial repairs to its deficient workmanship to minimum workmanship standards. Although Respondent was prohibited from performing such repairs due to its contracting license being suspended by operation of law, Respondent could have easily remedied that situation by renewing its license. 44. Respondent is not found to have deviated from plans or specifications, or local building plans, as alleged in Complainant’s Complaint. 45. Respondent’s failure to perform its scope of work to minimum workmanship standards, and its failure to comply with Inspector Cook’s Corrective Work Order and Amended Corrective Work Order, are wrongful acts that substantially injured Complainant. 46. Any allegations by Complainant not specifically addressed in the above Findings of Fact are deemed to lack sufficient evidence of record to support a factual basis of a violation by Respondent.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as cited in the Citation and Complaint in Case No. 08-2639 issued by the Registrar. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as cited in the Citation and Complaint in Case No. 08-2639 issued by the Registrar. Respondent failed to comply with those directives. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108 as cited in the Citation and Complaint in Case No. 08- 2639 issued by the Registrar. Inspector Cook’s Corrective Work Order and Amended Corrective Work Order set forth the factual basis for this Conclusion of Law. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. Respondent’s violations of A.R.S. § 32-1154(A) (23) and (3) provide the factual basis for this violation. 7. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license by operation of law for nonrenewal does not deprive the Registrar of authority to impose disciplinary penalties against Respondent’s license for the above-provided violations. 8. As a result of the suspension of Respondent’s contracting license by operation of law for failure to renew, Respondent is prohibited from performing the required remedial repairs to its substandard workmanship, and from subcontracting such remedial repairs to a properly licensed contractor.

RECOMMENDED ORDER Respondent’s License No. 152409 shall be revoked on the effective date of the Order entered in Case No. 08-2639. In addition to the above-provided license revocation, Respondent shall pay the sum of $500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective Order in Case No. 08-2639 shall result in the automatic revocation of Respondent’s contracting 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. § 32-1101(A)(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 will be 40 days from the date of that certification.

Done this day, April 20, 2009

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] Originally stated “12 working days,” but was amended with a handwritten notation.

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