ALJDEC decisions subject to certification as final

09F-2592-ROC · Registrar of Contractors · 2009-12-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 17, 2009 at 1:00 p.m. APPEARANCES: Complainants Clayton and Jackie Mulville appeared on their own behalf; Respondent American Wholesale Flooring LLC dba American Interiors appeared through Brian Frost, its managing member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On April 11, 2002, the Registrar of Contractors issued License No. ROC174129, Class B- for residential general contracting to Respondent American Wholesale Flooring, LLC dba American Interiors, a limited liability company. On October 31, 2008, the Registrar received a complaint from Complainants Clayton and Jackie Mulville against Respondent’s license, which alleged five specific deficiencies in Respondent’s installation of flooring at their residence. According to the complaint, Complainants had moved into the residence on March 8, 2008 and Respondent had last performed work at the residence on November 6, 2008. The Registrar referred the complaint to Respondent for its immediate attention. The Registrar’s Inspector Geoff Galgan performed a jobsite inspection and, on January 2, 2009, informed the parties that he had determined that Complainants’ complaint should be closed for the following reason: [I]t is the opinion of this inspector, from documents provided by the respondent and in the absence of documentation to the contrary, no action is required of the contractor, the reason being the work was performed beyond the ROC’s two year jurisdictional limit.

On January 21, 2009, the Registrar closed Complainants’ complaint as unverified. On February 11, 2009, Complainants requested that the complaint be reopened and set for hearing. On July 10, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(2), (7), and (3) (namely A.A.C. R4-9-108). Respondent timely answered the complaint, denying any statutory violations and affirmatively alleging that Complainants had made the complaint more than two years after Respondent completed work at the residence. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a fair hearing. A hearing was held on December 17, 2009. Complainants testified and submitted four exhibits. Respondent presented the evidence of three witnesses: (1) Brian Frost, its managing member; (2) Robert Arnett, President and qualifying party of Elite Cabinets and Countertops dba Majestic Stone Fabrication and Installation, License No. ROC246413, Class K-05 for dual solid slab countertops and facings; and (3) Marc Vanderwalker, President and qualifying party of Elements of Home Flooring and Interiors Inc., License No. ROC207258, Class K-08 for dual floor covering. Respondent submitted four exhibits. Inspector Galgan also testified. Additional Evidence On the Timeliness of Complainants’ Complaint Complainants purchased the residence in February 2008. The previous owner, Kathryn Gunsten, had hired Respondent to install granite tile countertops and laminate flooring. Mr. Frost testified that Respondent’s usual business practice is to require customers to pay 50% of the cost of a job before Respondent begins the job and the remaining 50% upon completion. Mr. Frost testified Respondent contracted with Ms. Gunsten in August 2006 to install the countertops and flooring. Ms. Gunsten had paid the deposit on August 26, 2006. Mr. Frost testified that the mud used on the granite tile is so thick that the countertop may end up slightly higher than the stove. Usually, the last thing that Respondent does on a job involving installation of a granite tile countertop is adjustment of the customer’s stove. Respondent submitted Invoice #36893 to Ms. Gunsten, acknowledging payments/credits of $2,683.88, with a balance due of $0.00. Ms. Gunsten had signed the invoice to accept its terms. Invoice #36893 was dated September 1, 2006. Mr. Frost testified that Respondent completed installation of the countertop and flooring and adjusted Ms. Gunsten’s stove by September 1 or 2, 2006. Complainants submitted a printout of an e-mail from Megan at [email redacted], who was Complainant’s real estate agent, dated May 29, 2008, in relevant part as follows: I had a chance to pull your file and the sellers did disclose on line 136 of the SPDS “Flooring new Oct 2006, tile new 2006, kitchen counter new Oct 2006.”

Mrs. Mulville testified that the seller’s agent was Melinda McClure. Alleged Workmanship Deficiencies Complainants’ October 31, 2008 complaint to the Registrar against Respondent’s license alleged the following specific workmanship deficiencies: #1. The granite tile countertops were installed unlevel and incorrectly so that they slope at an angle to the wall in the corners, the grout between the backsplash and counter has disintegrated and any liquid on the counter runs to the wall and goes behind the counter behind the cabinets. None of the grout lines on the countertop have cracked so it is evident that it was installed that way. It appears that the countertop is sinking in the corners. There is an area behind the sink where the countertop was installed with a dip and two cracks in the tile, patched with grout and is sinking. 2. They used styrofoam when installing and it is visible when sitting on the living room from the underside of the bar installed on the ponywall. 3. The weight of the bar installed on the ponywall with no corbels has pulled the top of the wall to the point that the cabinet on the kitchen side of the wall has separated from the wall. 4. The laminate flooring was installed without leveling the floor. The floor sags in the areas and cracks when walked on in entire floor. Flooring manufacturer warranty is void because it was laid on an unlevel floor. There are visible areas where the floor dips. 5. The baseboard through out was reinstalled with caulk instead of pneumatic nailing, and is freely moveable on all bottoms.

1. Allegedly unlevel countertops, cracked grout, and cracked tiles Inspector Galgan testified that the corner of the countertop did sag and that there was a visible gap in the grout. If complaint were timely, he would have advised Respondent to correct these deficiencies. Inspector Galgan testified that there was a visible crack in a tile on the backsplash behind the sink. He also would have advised Respondent to correct this deficiency. Mr. Frost suggested that the deficiencies that Inspector Galgan identified were caused by Ms. Gunsten’s or Complainants’ abuse of the countertop. In support of this argument, Respondent submitted a Complainant Mrs. Mulville’s e-mail to Complainant’s real estate dated June 19, 2008 to the effect that Complainants’ home inspector’s inspection prior to closing had missed certain items, including deficiencies in the countertops. Mr. Frost argued that a crack in the backsplash behind the sink is not the kind of deficiency that a homeowner or home inspector would likely miss. 2. Alleged use of Styrofoam as substrate for countertops Inspector Galgan testified that he did not believe that Respondent had used Styrofoam as a substrate. He would not have required Respondent to take any action with respect to this complaint. Mr. Frost testified that Respondent had used the Rockrite product as a substrate for the granite tile countertop it installed at the house that Complainants later purchased. Respondent submitted a printout from the Rockrite website, which stated that the product provides “a strong, water- durable tile base for tile counter top installations without the need for a plywood underlayment.” Inspector Galgan testified that he was familiar with the Rockrite product and that it is used as a substrate for granite tile installations in Arizona. Not all installations require a plywood substrate. Mr. Arnett testified that Majestic Stone Fabrication and Installation uses Rockrite as a substrate for the granite tile countertops it installs in Arizona. The Rockrite product has Styrofoam on the underside of the product. Mr. Vanderwalker testified that he is familiar with Rockrite. It is an accepted product to use as a substrate for the installation of granite tile countertops in Arizona. Mrs. Mulville testified that she has performed extensive research on acceptable substrates for the installation of granite tile countertops. All of her authorities stated that plywood must be used. 3. Pony wall allegedly pulling away from cabinets Inspector Galgan testified that the overhang on the countertop was pulling away from the pony wall. The overhang was 8½“ wide; corbels are not required until the overhang is at least 10” wide. Inspector Galgan testified that he was not sure about this item of complaint. Mr. Arnett testified that he has installed similar overhangs on pony walls. A solid granite countertop would be 1/3 heavier than a granite tile countertop installed on a Rockrite substrate. If the wall were properly constructed, the countertop would not pull away from the cabinet, even if the countertop were solid granite. Mrs. Mulville suggested that a countertop that was not installed to be level might pull away because the weight was not evenly distributed. Mr. Arnett responded that countertop contractors always check to see if the countertop is level. Regardless, he could not testify on the cause of the pony wall pulling away from the countertop. It could be a defect in the pony wall or the result of someone having stood on the overhang of the countertop. If the countertop were only ¼“ out of level, it would not cause the pony wall to pull away from the cabinet. 4. Laminate flooring allegedly installed on unlevel floor Inspector Galgan testified that the laminate floor appeared to be acceptable. His testimony was the only evidence submitted on this item of complaint. 5. Baseboard allegedly installed with caulk, not pneumatic nails Inspector Galgan testified that the baseboard appeared to be installed tight to the wall. He would not have ordered any corrective action with respect to this item of complaint. His testimony was the only evidence submitted on this item of complaint. If the Registrar determines that Complainants’ complaint is timely and that, as a result of the complaint, Respondent’s license should be disciplined, notice is taken of the Registrar’s record of Respondent’s disciplinary history. On the current record, Respondent’s license is current and in good standing and no pending complaints or discipline appears on the license history. CONCLUSIONS OF LAW Complainants bear the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[1] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[4] Respondent bears the burden to establish that the complaint should be dismissed because it is untimely.[5] Timeliness of Complaint A.R.S. § 32-1155(A) provides that the Registrar may investigate claimed contracting law violations and, if violations are found, discipline a contractor’s license “[u]pon the filing of a written complaint charging a licensee with the commission, within two years prior to the date of filing the complaint,” of the contracting law violation. [Emphasis added.] Mr. Frost had first-hand knowledge of when Respondent performed and completed the job. Respondent submitted credible evidence, consisting of Mr. Frost’s testimony, which was subject to cross-examination, and Respondent’s Invoice #36893, to establish that Respondent completed its work at the house on September 1 or 2, 2006. The e-mail printout and Complainant Mrs. Mulville’s testimony about what the seller’s agent told her are hearsay.[6] Although hearsay may be admitted in an administrative hearing,[7] it should not be relied upon if it is unreliable or not the kind of evidence that reasonable persons would rely upon in serious matters.[8] Ms. Gunsten did not testify at the hearing. Her alleged statement that Respondent performed work sometime in October 2006[9] to her real estate agent, who allegedly put the statement on the seller’s disclosure, where Complainants’ agent saw it and recounted it to Complainants in the e-mail printout that was submitted at the hearing, is not the kind of evidence that reasonable persons would rely upon to determine whether to penalize a contractor’s license and livelihood. Respondent has established the affirmative defense that Complainants’ complaint was untimely. The Registrar therefore should dismiss the complaint. Merits of the Complaint If the Registrar rejects the Administrative Law Judge’s recommendation and determines that Complainants’ complaint is timely, it is recommended that the Registrar find that Complainants have borne their burden to establish that Respondent violated A.R.S. § 32-1154(A)(7)[10] and (3)[11] with respect to Item #1 of Complainants’ complaint, the unlevel countertops, cracked grout, and cracked tile in the backsplash behind the sink. Complainants did not bear their burden to establish that Respondent violated A.R.S. § 32-1154(A)(2)[12] or that its workmanship was deficient in any other respect. RECOMMENDED ORDER In view of the foregoing, on the effective date of the Registrar’s final order, it is recommended that the Registrar dismiss Complainants Clayton and Jackie Mulville’s complaint in Case No. 09-2592 against License No. ROC174129, Class B- previously issued to Respondent American Wholesale Flooring LLC dba American Interiors. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, December 23, 2009.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [2] See A.A.C. R2-19-119(B)(2). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at page 1220 (8th ed. 1999). [5] See A.A.C. R2-19-119(B)(3). [6] See Ariz. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). [7] See A.R.S. § 41-1092.07(F)(1). [8] See Plowman v. Arizona State Liquor Board, 152 Ariz. 331, 337, 732 P.2d 222, 228 (App. 1986) (citing Begay v. Arizona Department of Economic Security, 128 Ariz. 407, 626 P.2d 137 (App. 1981)). [9] The Registrar received Complainants on complaint until October 31, 2008. To be timely, Complainants would have had to establish that Respondent performed work at the residence on October 31, 2006. [10] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [11] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [12] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.”

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