ALJDEC decisions subject to certification as final

08F-3920-ROC · Registrar of Contractors · 2009-04-14

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 7, 2009.

APPEARANCES: >The Complainant appeared in her own behalf. >The Respondent appeared through Clifford K. Winham, a member of the LLC entity and Samuel K. Winham, its qualifying party and a member of the LLC entity.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

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. Pursuant to a contractual agreement, Respondent agreed to and did perform installation work in Complainant’s residence consisting of the placement and grouting of porcelain ceramic tile that was to be and was obtained, paid for and provided by Complainant. The flooring tiles were shown to be of a 12-inch by 24-inch size. The work was to include not only approximately 1675 square feet of flooring but also a hall bathroom shower.

2. The agreed cost price for Respondent’s contemplated installation work was $5,630.00. Although the testimony at the hearing was somewhat conflicting, the credible evidence is found to support a finding that Complainant had paid to Respondent the aggregate total amount of $4,000.00 in three separate installments, leaving an unpaid contract balance of slightly over $1,600.00. There was no dispute that Complainant had additionally paid a sum of $11,205.17 to a distributor for the porcelain tile materials, which included the cost of the extra tile for the shower.

3. Respondent was shown to have returned to the jobsite several times for the purposes of addressing reported lippage problems as well as for attempts to improve the extent of misalignment and unevenness in the width of numerous grouting materials in the spaces between the individual tile pieces.

4. Prior to the completion of the shower tile installation, Complainant caused the stoppage of Respondent’s work when she learned that there were fastening and spacing problems with the partially installed backer board material. Complainant filed the within complaint with the Registrar, and both parties appeared to reach a decision to await the results of the agency’s scheduled jobsite inspection before Respondent’s attempting or Complainant’s allowing any further remedial measures on the asserted deficiencies resulting from the flooring tile and grout installation or on the shower problems.

5. Following a jobsite visit, the Registrar’s assigned Inspector confirmed most all of the complaint items as constituting deficiencies that required Respondent’s corrective action by appropriate means. More specifically, the Inspector determined that excessive and unacceptable lippage existed at numerous and scattered locations throughout the flooring and also that excessive unevenness was visible with respect to the grout spacing as well as to the grout line misalignment bordering many tile pieces. Additionally, the colors of the applied grout were excessively different and a few tile

pieces were utilized, perhaps during earlier replacement work by Respondent, that were shiny in texture and appearance, not matching the matte finish of the adjacent previously installed tile pieces. Finally, the Respondent was required to perform appropriate clean-up of debris from its work that had been deposited in the front yard of the home.

6. The above-described deficiencies were encompassed within a written Corrective Work Order issued to Respondent by the Inspector. Although Respondent communicated its disagreement with the determinations made by the Inspector based upon a purported absence of sufficient testing and the claimed vagueness of applicable guidelines for lippage and grout lines as applied to the materials being installed, it is found and determined based upon the testimonial and documentary evidence presented at the hearing that Complainant’s filed complaints as to the results of the tile installation were adequately supported and that the confirmed deficiencies reflected adversely upon Respondent’s workmanship.

7. It was admitted that Complainant had subsequently resorted to another contractor for the correction and completion of the shower installation. Respondent was never given the opportunity to correct and/or complete the contemplated shower tile work, but conversely, after the issuance of the Inspector’s directive, Respondent’s disagreement with the said directive resulted in its effectively declining to undertake and complete any further action on either the flooring or the shower pending the convening and outcome of the instant administrative hearing. In any event, since there was some indication that the unpaid contractual balance due from Complainant to Respondent was more or less equal to the added costs of the shower tile work, no findings or conditions will be made or recommended in this decision with respect to the shower tile portion of the overall installation work by Respondent.

8. It is further found from the credible evidence presented at the hearing that the quantity and locations of the various lippage and grout deficiencies would tend to render

any piecemeal addressing of individual tile pieces, floor surface areas or grout lines futile and unsuccessful. The evidentiary presentations generate a conclusion that appropriate remedial work would consist of the Respondent’s removal or demolition of the flooring tile installation and the replacement of the removed tile with new tile materials of the same or similar cost and quality, to be obtained and paid for by Respondent, and to be reasonably approved in advance by Complainant. The remaining debris in the front yard, shown to consist probably of excess thin set materials, must also be appropriately removed from the premises by Respondent.

9. Respondent was shown not to have substantially or even minimally complied with the terms of the issued Corrective Work Order. Additionally, by failing or refusing to undertake and complete corrective measures over a much prolonged time period, Respondent is further determined to have committed a wrongful (but not fraudulent) act resulting in significant detriment to Complainant within the meaning of another provision of the State’s contracting laws charged herein as having been violated by Respondent.

10. Notice is taken of the Registrar’s license files which reveal that Respondent has maintained a very fine prior record as a contractor in this State. This record warrants some quantum of consideration as a matter in mitigation hereunder. Additionally, Respondent’s failure to comply with the Inspector’s issued directive was shown to be attributable to its good faith, albeit mistaken, belief with respect to the correctness of same. Consequently, other than a provisional license suspension conditioned on the accomplishment by Respondent of extensive and costly tile removal and replacement work, the Registrar should be prompted NOT to impose any civil penalty or any additional discipline against Respondent’s contracting license.

CONCLUSIONS OF LAW

1. At these administrative hearings, the complaining party generally has the burden of proof, Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (1952) and the

standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (1996). See also Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (1985); Utah Construction Company v. Berg, 68 Ariz. 285, 205 P. 2d 367, (1949); Rule R2-19-119, A.A.C. A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). 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 (6th ed. 1990)

2. The totality of the evidence of record sufficiently established that Respondent has violated the provisions of A.R.S.§32-1154(A)(7), (23) and (3) namely Rule R4-9-108, A.A.C.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the date of the Registrar’s Order that Respondent’s Class C-08 license be suspended until the Registrar receives written proof that Respondent has properly accomplished the removal and replacement of floor tiles, to be paid for and furnished by Respondent after reasonable approval by Complainant, as set forth in Finding of Fact Number 8.

It is further recommended that If written proof is filed with the Registrar on or before this Order’s effective date that Respondent has accomplished the above-described remedial work in a proper workmanlike manner, or if Respondent is unable to accomplish such work because of Complainant’s refusal to approve comparable replacement tile materials, her refusal to accept Respondent’s valid tender of demolition and replacement work or her refusal to grant Respondent reasonable and timely access to the premises, then no license suspension shall be imposed and the entire Citation and Complaint in Case Number 08-3920 shall be closed.

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 forty (40) days from the date of that certification.

Dated: April 15, 2009. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

William A Mundell, Director Registrar of Contractors Legal Department 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906

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