ALJDEC decisions subject to certification as final

09F-6250-ROC · Registrar of Contractors · 2010-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 6, 2010 at 1:00 p.m. APPEARANCES: Complainant Raymond Kohler appeared on his own behalf; Respondent Brian Ray Bailey dba Bailey’s Custom Tile appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On May 24, 2005, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC207522, Class C-48 for dual ceramic, plastic and metal tile to Respondent Brian Ray Bailey dba Bailey’s Custom Tile, a sole proprietorship. On June 1, 2009, the Registrar administratively suspended Respondent’s license for nonrenewal. It remained suspended on the date of the hearing in this matter. On June 8, 2009, the Registrar received a complaint against Respondent’s license from Complainant Raymond Kohler, which alleged nine workmanship deficiencies in a tile floor that Respondent had installed at Complainant’s home, as follows: 1) Numerous tiles have hollow sound 2) Chipped & loose tiles 3) Tile is not aligned properly 4) Grout lines are of various widths 5) Crack control membrane not used at control joint 6) Tile is not flat, many high & low tiles 7) Poor workmanship overall 8) Thinset used on job is not a modified approved product for installation of porcelain tile 9) Porcelain tile used is a ceramic tile and is impervious as a finish[ed] product. The tile manufacture[r] requires installer of their product follow the Tile Council of North America when laying the tile purchased by owner of home. . On June 8, 2009, the Registrar revoked Respondent’s license as a result of his failure to appear for the rehearing in Case No. 08F-0395-ROC (the Registrar’s Case No. 08-0395), which was unrelated to Complainant’s complaint. Case No. 08-0395 involved Respondent’s alleged failure to pay an employee, not workmanship. Respondent appealed the revocation in Case No. 08-0395 to superior court. The Registrar sent a copy of the complaint in this matter to Respondent for his immediate attention. On June 9, 2009, the Registrar’s Inspector Dennis Cook informed the parties that, because Respondent’s license was revoked, the Registrar would not schedule a jobsite inspection and the complaint would be closed unless Complainant requested a hearing. On June 12, 2009, the Registrar received Complainant’s request for hearing. On August 31, 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). On September 15, 2009, the Registrar received Respondent’s written answer to the Citation and Complaint, which denied any statutory violation and affirmatively alleged that Complainant had refused to allow him access to complete the job and had refused to pay him $1,000.00. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. On October 29, 2009, the superior court set aside the Registrar’s revocation in Case No. 08-0395 pending the outcome of the appeal. The Registrar issued a Notice of Hearing in this matter on November 10, 2009. A hearing was held on January 6, 2010. Complainant testified, presented the testimony of licensed tile contractor Joshua Zavagli, and submitted four exhibits. Respondent testified on his own behalf. Inspector Cook also testified. Hearing Evidence Complainant is the qualifying party and managing member of Attic Tune Up Systems LLC, to whom the Registrar issued License No. ROC237397, Class K-05 for dual attic and garage ventilation systems on September 13, 2007. Approximately twenty-five years ago, Complainant himself built the house where Respondent contracted to install tile. Complainant testified at the hearing that he has “high standards.” On February 9, 2009, Respondent offered to install tile in approximately 789 square feet of floor and in the three showers at Complainant’s house. The proposal was later amended to omit the showers. The total of the amended proposal was $4,707.65. Complainant agreed to provide the tile. Complainant later purchased 20” x 20” porcelain ceramic tile. Because Respondent was busy, he did not begin the job until April 20, 2009. On that date, Complainant issued a check to Respondent in the amount of $700.00 to begin the job. Respondent and two crew members started the job. On April 29, 2009, Complainant paid Respondent a progress payment in the amount of $1,730.98. At the end of April 2009, after Respondent had been on the job less than a week and had completed less than half of the job, Complainant asked Respondent to leave the job because he was dissatisfied with Respondent’s work ethic, workmanship, and Respondent’s crew’s interactions with Complainant’s wife. After Complainant requested a hearing, both parties requested that Inspector Cook expeditiously perform a prehearing inspection. On November 17, 2009, Inspector Cook performed a jobsite inspection. Inspector Cook testified that the job was not complete on November 17, 2009. No grout had been installed, although at least some of the tiles had been laid. Inspector Cook testified as follows regarding his observations and the opinions he formed at the jobsite inspection about Complainant’s items of complaint: 1. Complainant demonstrated the “hollow sound” by bouncing a golf ball on some of the tiles. Inspector Cook testified that the sound was not extensive and that, if Respondent’s license had not been revoked in Case No. 08-0395, he would not have ordered Respondent to make any corrections with respect to this item of the complaint. 2. Complainant only showed Inspector Cook a few chipped or loose tiles. Although Respondent would have been required to correct these tiles, Inspector Cook noted that the job was incomplete. 3. Inspector Cook pointed out that the Registrar’s workmanship standards required as follows with respect to the alignment of tiles and the width of grout lines (Items 3 and 4 on Complainant’s complaint): Tile surface should be straight and reasonably flat, allowing for individual characteristics of the tile. Nominal centerline of all joints should be straight and even width, with due allowances for hand-molded and rustic tiles.[1]

Inspector Cook testified that even manufactured tile may vary in size. Most of the grout lines met the Registrar’s standards; however, three or four grout lines had excessive width. 4. With respect to the membrane material used to cover control joints and cracks in the concrete substrate, Inspector Cook testified that he could not confirm that Respondent had used a proper material for this kind of installation. He would have required Respondent to verify that the material used met industry standards and, if not, would have required Respondent to replace the membrane. 5. With respect to the so-called “lippage,” or elevation variances between individual tiles, Inspector Cook testified that the Registrar allows up to 1/16” difference between individual tiles. Most of the tiles he saw were within this tolerance but he would have required Respondent to correct five or six tiles. 6. With respect to Respondent’s alleged overall poor workmanship, Inspector Cook testified that this item of complaint was subjective. Especially since the job was incomplete, Inspector Cook would have overlooked this item of complaint. 7. With respect to the material that Respondent used to cause the tiles to adhere to the floor, Inspector Cook testified that he was unable to confirm at the jobsite that Respondent had used an appropriate material. As with the membrane used to cover cracks and control joints, Inspector Cook would have required Respondent to establish that he had used an appropriate material to adhere the tiles to the concrete and, if not, would have required Respondent to tear the tile out and replace it using an appropriate material. 8. With respect to Respondent’s alleged failure to follow the tile manufacturer’s directives when he laid the tile, Inspector Cook referred to the opinions set forth in Finding of Fact Nos. 25.4 and 25.7 above. After Inspector Cook’s inspection, Complainant hired Great West Tile Creations Inc. (“Great West”), License No. ROC204685, Class C-48 for residential ceramic, plastic and metal tile to remove and reinstall the porcelain tile that Respondent had started installing at Complainant’s house. At the time of the hearing, the removal and reinstallation had been completed. Complainant paid Great West $2,730.84 to remove and reinstall the tile. Complainant explained at the hearing that, because “babies were being born at his house,” he needed to complete the floor. Complainant submitted numerous photographs of Great West’s removal of the tile and showed the Administrative Law Judge as demonstrative evidence actual tiles that had been removed. Great West’s qualifying party Mr. Zavagli testified that the tiles just “popped up,” without breaking. Inspector Cook testified that, if the tiles just “popped up,” there may have been a problem with adhesion that would have required correction. Respondent testified that the large porcelain tiles were very strong. Usually, such tiles “pop up” whole if a screwdriver or other lever is inserted beneath them, regardless of the method of installation. Respondent had used Latex-Portland Cement MultiSet 917 C-Cure to set the tiles. Inspector Cook testified that Respondent’s use of Latex-Portland Cement MultiSet 917 C-Cure was an appropriate means to adhere the tiles to the concrete. Mr. Zavagli testified that, although Latex-Portland Cement MultiSet 917 C- Cure is an inexpensive way to set tile, in his opinion the large 20” x 20” porcelain tiles required a better product to properly adhere them to the concrete substrate. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 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.”[6] Construction is not a perfect art and, generally, a contractor should be afforded an opportunity to correct deficient workmanship before the Registrar suspends, revokes, or otherwise disciplines its license.[7] The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages.[8] The Registrar may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation cannot be remedied by corrective work.[9] Restitution may be appropriate when the contractor does not immediately respond to a property owner’s complaint and the workmanship deficiency is such that the property owner is justified in hiring another contractor to remedy a health or safety issue or to mitigate his damages.[10] That is not the case here. The floor was correctible and in fact has been corrected. Complainant excluded Respondent from the jobsite even before he completed the work. Complainant therefore has not established that he should not have allowed Respondent to complete installation of the tile or, before its license was administratively suspended, to correct if necessary the installation. Complainant therefore has not borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(2),[11] (7),[12] and (3)[13] in his installation of tile at Complainant’s residence. To the extent that Complainant suffered any damages, such damages were a result of his decision to hire another contractor, and not Respondent’s contracting law violations. Complainant may be entitled to some civil damages in a judicial forum. But he is not entitled to restitution or any other relief in this administrative forum. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order in this matter, the Registrar dismiss Case No. 09-6250 against Respondent Brian Ray Bailey dba Bailey’s Custom Tile’s License No. ROC207522, Class K-48, without prejudice to Complainant Raymond Kohler’s right to file a civil action for breach of contract or contractor malpractice in a judicial forum. 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, January 8, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Workmanship Standards for Licensed Contractors at 46-47 (February 2009). [2] See 32-1101 et seq. [3] 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). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary at page 1220 (8th ed. 1999). [7] See A.R.S. § 32-1154(A)(23), which includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [8] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). [9] See A.R.S. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (Ct. App. 1990). [10] In Sunpower, the Arizona Court of Appeals upheld the Registrar’s power to order a contractor to return to a property owner the cost of a solar heater where, although the contractor had made several attempts to repair the heater, he could not make it provide a habitable degree of heat. See id. [11] 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.” [12] 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.” [13] 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.”

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