ALJDEC decisions subject to certification as final

08F-G0620-ROC · Registrar of Contractors · 2009-04-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 3, 2009 with further hearing on March 11, 2009; the record closed on March 25, 2009 APPEARANCES: On February 3, 2009, Sandra Ashley appeared on behalf of Complainant Split Endz, L.L.C., and John Drazkowski, Esq. represented Respondent Marblelife of Arizona, Inc. On March 11, 2009, David Brnilovich, Esq. represented Complainant Split Endz, L.L.C., and John Drazkowski, Esq. represented Respondent Marblelife of Arizona, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Marblelife of Arizona, Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Respondent Marblelife of Arizona, Inc. (“Marblelife”) is the holder of a Class L-05 license (No. 176574) issued by the Registrar of Contractors (“ROC”). Jim Mannari is Marblelife’s qualifying party and corporate officer. In November 2006, Complainant Split Endz, L.L.C. (“Split Endz”) contracted with Marblelife for Marblelife to stain the existing concrete floor of a salon owned by Sandra Ashley. According to the filed complaint, a copy of which is contained in the case file, the contents of which administrative notice was taken, the contract price was $8,549.00. Split Endz has paid Marblelife $5,049.00 of the contract price. In January 2007, Marblelife performed the staining of the concrete floor. 4. On January 30, 2007, Ms. Ashley requested that Marblelife perform corrective work to some areas of the floor. Marblelife performed the corrective work in mid-February 2007. 5. On October 17, 2007, Split Endz filed a complaint against Marblelife with the ROC. In the complaint, Split Endz alleged the following: Breach of Contract due to lack of performance. Work was never completed. Contractor was released on 2/8/2007 after unsatisfactory repair of flooring.

6. ROC Inspector Jim Hennessy investigated Split Endz’s complaint. 7. Inspector Hennessey did not conduct a jobsite inspection because he believed that the job had been abandoned based upon the contents of the filed complaint. On January 30, 2009, Inspector Hennessey conducted a pre- hearing inspection. Present for the inspection were Ms. Ashley, Mr. Mannari, Adin Armendariz, a former employee of Marblelife, and John Drazkowski, Esq., Marblelife’s attorney. 8. Inspector Hennessey testified at hearing that there is a visible seam running West and South on the East side of the salon, and the seam is telegraphing. There is a part of a seam that is telegraphing on the West side of the salon,. Inspector Hennessey testified that there is one area on the West side that shows a wearing of the stain, and one area on the West side approximately 22” x 12” that had been covered by a mat that is efflorescing. Inspector Hennessey further testified that there is an area toward the rear of the salon, and another area by the counter where stain is deteriorating and flaking. 9. Inspector Hennessey testified that the area where the color has worn off is near a chair with wheels. Inspector Hennessey opined that the discoloration is due to wear and tear, and the placement of a mat over the polyurethane seal, not poor workmanship. Inspector Hennessey testified that the seam is visible due to the fact that it is raised because it is over a control or expansion joint, not because of discoloration. Inspector Hennessy opined that the seam may have risen due to expansion after the floor was completed. Inspector Hennessey acknowledged that his inspection took place approximately two years after the floor was completed. 10. Ms. Ashley testified that she ordered Marblelife off the job on February 8, 2007, because Mr. Mannari had advised her that Marblelife would not perform any further corrective work, and Ms. Ashley felt the floor “was a mess” and she could not “take staying until midnight” (notwithstanding that Marblelife was working after hours to accommodate the salon’s hours of operation). 11. Ms. Ashley testified that she contracted with Marblelife on November 6, 2006, for a stained concrete floor in her salon, that she wanted a multi- colored appearance, and for the stain to look like tile. Mr. Mannari advised her that the impression left on the concrete from the removal of the old tile would be visible through the stain, and the only way to alleviate this would be to install a micro-topping overlay. Ms. Ashley agreed to the installation of the micro-topping overlay. Ms. Ashley testified that in late January 2007, she advised Mr. Mannari as to the size of the saw cuts for the tile appearance. 12. Ms. Ashley acknowledged that the job was delayed due to delays caused by the general contractor, and as such, Marblelife could not commence its work until January 22, 2007. Ms. Ashley further acknowledged that notwithstanding the fact that she asked Mr. Mannari to leave the premises on February 8, 2007, Marblelife’s crew continued to perform repair work that she requested through February 12, 2007. Ms. Ashley acknowledged that the repair work performed by Marblelife did not interfere or prevent her from conducting her business as the repairs were performed when the salon was closed from Saturday after 5:00 p.m. through Monday. Ms. Ashley did not incur any cost for moving furniture or equipment. 13. Ms. Ashley testified that she believes she has a right to withhold payment from Marblelife because Marblelife contacted her general contractor. Ms. Ashley requested an award of $110,000.00 based upon an estimate that she personally prepared for the removal and replacement of the floor. 14. David Thomas, a friend of Ms. Ashley, assisted Ms. Ashley in compiling a scope of repairs. Mr. Thomas has a background in residential construction and remodeling. Mr. Thomas acknowledged that he does not have a contractor’s license, has no experience in commercial construction, concrete flooring, or with the materials utilized for this project. Mr. Thomas further acknowledged that he did not view the floor prior to when Marblelife performed its work, and that he first became familiar with the project after the work was completed. Mr. Thomas testified that the $110,000.00 estimate is based upon the hours Ms. Ashley estimated it would take to move the furniture and equipment in and out of the salon, for the rental of pods, the removal of the floor, and the installation of an “acid micro-finish overlay”. Mr. Thomas testified that he “called around” to get an estimate for the flooring and that the prices he obtained were between $8.00 and $10.00 per square foot and that the salon is 1,900 square feet. Mr. Thomas acknowledged that he has no personal knowledge of how much it would cost to replace the floor, and that he does not have any knowledge about the product used on the floor with the exception of his internet research. Mr. Thomas further acknowledged that he has no idea whether the flooring issues are due to workmanship deficiencies or wear and tear. 15. Split Endz called Raymond Anger as a witness. Mr. Anger has been in the decorative concrete stain business since 2003. Mr. Anger first viewed the floor in February 2009. Mr. Anger testified regarding photographs of the floor in the salon. Mr. Anger testified that as to Exhibit 10, the line in the floor is caused by crowning of the control joint. Because the control joint was overlaid with concrete topping, when the control joint pushes up as the concrete expands, it causes the topping to break. Mr. Anger testified that it is not proper to place a topping over a control joint because control joints are designed to crack in order to control cracking of the concrete. 16. Mr. Anger testified as to Exhibit 2, a photograph of a control joint, that the floor is “coming up in the control joint”, and that the breaking away and peeling of the floor will continue and cannot be stopped as water will find its way underneath the floor and cause lifting. 17. Mr. Anger testified regarding technical data sheets submitted into evidence by Split Endz. See Exhibits 13 and 15. Mr. Anger testified that the technical data sheets for MegaLite Crack Prevention Mortar and Metzger/McGuire (MM80) joint filler, indicate that these products should not be used on expansion or control joints. Id. These technical data sheets pertain to materials that were not utilized by Marblelife in the installation of the floor. Mr. Anger testified that the control joints need to be “honored” and re-opened because they are designed to crack. 18. Split Endz submitted into evidence an example of material that was taken from a control joint. See Exhibit 14. Mr. Anger explained that because concrete continues to cure, the putty that was installed in the control joints by Marblelife will bulge as it is pushed up due to the expansion and contraction of the concrete, and this will cause crowning that breaks away as chairs move and people walk on the surface of the floor. 19. Mr. Anger testified that the remedy for these deficiencies is problematic because the corrected areas need to blend with the rest of the floor. Mr. Anger testified that the control joints can be saw cut, but because of the decorative scoring, the control joints should have originally been part of the design. Mr. Anger recommended removal and replacement of the floor. Mr. Anger estimated the time for the removal and replacement of the floor would be ten to twelve days, that there would be a great deal of dust and debris, and that everything would need to be removed from the premises. On cross examination, Mr. Anger acknowledged that the deficiencies in the floor can be repaired by saw cutting the joints and repairing the area, assuming the repair can be made to blend with the existing floor, and that the saw cutting can be accomplished with a saw cutter with attached dust collector, so as to alleviate the dust issue. Mr. Anger further acknowledged that the floor is a variegated color and roughness. Mr. Anger testified that the white areas on the floor were abraded by moving chairs and the staining on the floor is due to water staining. 20. Mr. Mannari testified that he began working in the floor staining industry in 1994 and has been licensed since 2002. Mr. Mannari has assisted manufacturers in developing their products for use in the industry. Mr. Mannari has extensive experience in the staining of commercial floors and the products used for such purpose. 21. Marblelife utilized Semco products in this installation. Mr. Mannari contacted Semco to advise as to the particulars of the project and what product he proposed to use. Mr. Mannari testified that Semco’s representative suggested using a semi-rigid epoxy in the joints with an overlay. Mr. Mannari also spoke with a representative from Metzger/McGuire, and was informed that the proposed installation was an appropriate use of the product. Mr. Mannari testified that there were too many imperfections in the floor not to use an overlay. Mr. Mannari explained that a semi-rigid product was used because it “gives a little” and Marblelife could not use the joint lines for the tile cuts because Ms. Ashley requested that the tile cuts be on a 45 degree angle and she specified the size and pattern of the cuts. Mr. Mannari acknowledged that he did not advise Ms. Ashley that the tile cuts should be made according to the control joints. Mr. Mannari testified that when the job was completed in 2007, the ridges were not visible, and had they been, Marblelife would have addressed them at that time. Mr. Mannari would have further advised Ms. Ashley that the tile cuts could not be made on a diagonal as she requested, as they would need to follow the underlying control joints. 22. Mr. Mannari testified that he saw the floor for the first time in almost two years on January 30, 2009, and that it was obvious that the floor had not been maintained, as spills, trapped moisture, gouges, and abrasions from chairs were apparent. Mr. Mannari testified that Ms. Ashley had acknowledged to him that she had used a buffer on the floor, but then retracted her statement. Mr. Mannari explained that a buffer could aggravate any issues with the floor. Mr. Mannari also testified that there were no cracks in the floor and that the overlay has adhered to the floor. At the pre-hearing inspection, Ms. Ashley complained of the raised joint, and Mr. Mannari explained that Marblelife can repair the joint by saw cutting it out, and either filling it again or using a surfacing material. Mr. Mannari testified that the removal of furniture and equipment is not necessary for the repair of the floor and that certain equipment can be utilized during the repair process that significantly reduces dust. CONCLUSIONS OF LAW In this proceeding, Split Endz bears the burden to prove, by a preponderance of the evidence, that Marblelife is subject to discipline for violations of A.R.S. § 32-1154(A)(1), (A)(3), and/or (A)(7) as charged by the ROC in its May 6, 2008 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 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). The Administrative Law Judge concludes that Split Endz met its burden of proof as to two of the ROC’s three charges. 4. Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” The Administrative Law Judge concludes, based upon the credible, probative, and substantial evidence of record, that Marblelife did not abandon its contract with Split Endz. To the contrary, Marblelife completed the project and returned to perform corrective work at the request of Ms. Ashley. It was during the course of the corrective work that Ms. Ashley asked that Mr. Mannari leave the premises and not return to the jobsite. Notwithstanding such directive, Mr. Mannari directed his crew to complete the corrective work. Therefore, the Administrative Law Judge concludes that Marblelife did not violate A.R.S. § 32-1154(A)(1). 5. Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Marblelife with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes based upon the evidence of record, that Marblelife failed to perform portions of its work at the salon in a professional and workmanlike manner, as evidenced by the crowning of the control joints, resulting in the displacement of the micro-topping as the surface of the floor is walked upon or equipment is moved. Therefore, the Administrative Law Judge concludes that Marblelife violated A.R.S. § 32-1154(A)(3). 6. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that Marblelife committed a wrongful act that substantially injured Split Endz by failing to perform portions of its work at the salon in a professional and workmanlike manner. Therefore, the Administrative Law Judge concludes that Marblelife violated A.R.S. § 32- 1154(A)(7). 7. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Marblelife’s Class L-05 license. 8. The ROC’s authority in disciplinary matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case, and preferable to imposing discipline against Marblelife’s license without providing a condition to reduce or eliminate same. 9. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should suspend Marblelife’s Class L-05 license subject to the condition that Marblelife can avoid such suspension by performing effective, professional, and workmanlike corrective work to the control joints in the salon. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: Within 30 days of the effective date of the Order entered in this matter, Marblelife’s Class L-05 license (No. 176574) shall be suspended until the ROC receives written proof that Marblelife has performed in an effective, professional, and workmanlike manner, the necessary corrective work to the control joints in the salon, during hours and days that the salon is not open for customers. If the ROC receives written proof that Marblelife has complied with the foregoing condition on or before the date specified above, then the above provided license suspension shall not take place and the Citation and Complaint in Case No. G08-0620 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 40 days from the date of that certification.

Done this day, April 6, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

William A. Mundell, Director Registrar of Contractors 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

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