ALJDEC decisions subject to certification as final

08F-T0227-ROC · Registrar of Contractors · 2008-09-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 4th, 2008; 9:00 a.m. APPEARANCES: Complainants, Mr. David & Ms. Lisa Rooyakkers, represented themselves. Respondent, S and T Custom Floors, Inc., was represented by Mr. Rene Alcoverde, Attorney-at-Law. 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, S and T Custom Floors, Inc., is, and during all time material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C-08 License number 210329. 2. Complainants, Mr. David and Ms. Lisa Rooyakkers, contracted Respondent in 2007, for Respondent to install extensive amounts of custom tile, listelles, and a large circular medallion at their Tucson, Arizona residence. This was part of a more extensive remodeling project the Complainants were having done to their home.

3. Following completion of the installation, Complainants were dissatisfied with the appearance and asked Respondent to remove and reinstall tiles. Respondent did this. In removing the tiles the greater weight of evidence proved that Respondent’s crew damaged several tiles by chipping them in the process. Respondent suggests that the other trades working on the remodel could have done that, or that the tiles were chipped coming out of the manufacturer’s box, but there is no substantial evidence to support these suggestions. It is highly more likely that the Respondent’s crew chipped the tiles. Moreover, even if the tiles were chipped to begin with, Respondent has a responsibility not to install visibly defective products. That alone would be poor workmanship. 4. The tiles were reinstalled over the same areas, but the Respondent never removed the first application of thinset which, naturally, had hardened by then. There is no industry or Registrar of Contractors standards prohibiting laying tile over existing cured, thinset, but in doing so the contractor accepts that the surface is acceptable for receiving the tile, and any defective condition resulting from that is the contractors’ responsibility to correct. 5. The tile in the main room where the work was performed is 18”x18”, and in the middle of the floor is a laser cut, circular medallion, which, judging by the photographs in evidence, appears to be about 5’ in diameter. The medallion was installed by Respondent. The record proves that there is unacceptable lippage at the edges of the medallion where it meets the adjacent tiles. 6. In fact, there are several areas of tile meeting tile where there is excessive lippage. The photographs depict examples of lippage appearing to be between 1/8” and ¼”. 7. Many areas of the tile in the main floor area and each of the two bathrooms were misaligned. Respondent’s testimony is that the nature of the tile being what it is, there are inherent irregularities between each tile, and this is why the alignment only appears to be incorrect. However, the photographic evidence depicts several areas where the two adjacent tiles are severely misaligned, and it is not credible that even with this particular tile it could be acceptable for the misalignment to be so severe as it appears. 8. The grout work is probably the most chronic defect in the workmanship. The grout throughout the job displays areas of inconsistent width, areas where there is a total absence of grout, significant color mismatch, and grout smeared over surfaces where it does not belong. 9. The greater weight of evidence also proved miscuts made by the Respondent at areas where the tile meets the carpet, and overcuts in the bathrooms. Respondent said these cuts anticipated other trades covering them with their work, which did not occur. Nevertheless these exposed miscuts need to be corrected by appropriate means. 10. Lastly, there is substantial credible evidence of drywall damage caused by the Respondent during its removal and replacement of the bathroom listelles, and at least a few “hollow” tiles down the center of the hallway, all of which need to be corrected by appropriate means. 11. Following the filing of this Complaint, the matter was assigned to a Registrar of Contractors Inspector, Mr. Greg Koeneman, for his inspection. Inspector Koeneman performed a job site inspection on September 5th, 2007, and as a result issued a written Corrective Work Order (CWO) dated September 12th, 2007, directing the Respondent to properly correct all the items of defective workmanship as found hereinabove. The CWO allowed 15 calendar days for the corrective work, which was a reasonable amount of time. Respondent did not perform any corrective work, being of the opinion that the workmanship was up to all minimum agency and workmanship standards. After the 15 calendar days, he proposed to have another inspector outside the Registrar of Contractors inspect, and give his or her opinion of the workmanship, and that the parties accept that report over the Registrar of Contractors’ Inspector’s report. This was unacceptable to the Complainants, who went on to request this administrative hearing. 12. At the administrative hearing Respondent produced copies of industry standards as published by the Tile Council of North America (TCNA), and called the American National Standards. One standard tended to prove that acceptable lippage for 8”x8” tile is a mere 1/16”. Inspector Koeneman noted that the industry standard is 1/16”, but Respondent pointed out that is incorrect and conflates the standard for 8”x8” tile with that for 18”x18” tile. However, other than his own testimony, Respondent produced no documentary evidence of the industry standard from the TCNA. Be that as it may, as found hereinabove, many of the lippage areas exceeded 1/8” and even approached ¼”. 13. Notice is taken of Respondent’s prior license record with the Arizona Registrar of Contractors. 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. 32-1154.A.7, 23, and 3 (namely, A.A.C. R4-9-108, Workmanship Standards), and 13 (namely, A.R.S. 32- 1124.B.) 3. The greater weight of evidence proved that Respondent violated the workmanship standards at A.A.C. R4-9-108, and therefore A.R.S. 32- 1154.A.3, and A.R.S. 32-1154.A.23, by failing to take appropriate corrective action pursuant to the CWO, without valid justification.

4. There is no substantial evidence that Respondent violated A.R.S 32- 1154.A.13 by violating A.R.S. 32-1129.B., or that it violated A.R.S. 32-1154.A.7, by any wrongful or fraudulent act independent of the violations already concluded to have occurred. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Respondent’s Class C-08 License number 210329 be suspended until the Registrar of Contractors receives written proof that the Respondent has properly accomplished the corrective action set forth in the Inspector’s Corrective Work Order of September 12th, 2007. It is further recommended that if the Respondent properly accomplishes the above-described corrective action, on or before the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order), then the above-provided license suspension shall not take place, and Citation and Complaint T08- 0227 shall be closed. 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 he Order shall be 40 days after the date of that certification. Done this day, September 11th, 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, AZ 85701 520-628-5488 Fax: 520-628-5575 www.azoah.com