ALJDEC decisions subject to certification as final

2009A-44032646-ROC · Registrar of Contractors · 2010-06-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 27, 2010 at 1:00 p.m. APPEARANCES: Complainant Ralph Niess appeared on his own behalf; Respondent James Alexander Dowling Jr. dba Epic Stone and Tile appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On July 12, 2002, the Arizona Registrar of Contractors (“the Registrar” or “R.O.C.”) issued License No. ROC176923, Class K-48 for dual ceramic, plastic, and metal tile to Respondent James Dowling dba Epic Stone and Tile, a sole proprietorship. On February 11, 2009, the Registrar received a complaint against Respondent’s license from Complainant Ralph Niess, which alleged twelve specific workmanship deficiencies in Respondent’s installation of tile in the bathrooms at Complainant’s residence at 5508 W. Melinda Lane in Glendale. According to the complaint, Complainant had paid Respondent the full contract price of $10,867.50 to install the tile. The complaint was assigned to the Registrar’s Inspector Jim Hennessy for investigation. Inspector Hennessy performed a jobsite inspection and, on March 24, 2009, issued a Corrective Work Order (“CWO”) to Respondent to correct certain specific items of complaint within fifteen days, in relevant part as follows: *Note* This license 176923 issued to EPIC STONE AND TILE was suspended for Lack of Bond on 11/2/08 and cannot do or sub- contract the following corrective work order until the suspension is lifted.

The following complaint items do not meet industry or R.O.C. Standards. Therefore the contractor is to correct by the appropriate means. • Tile is loose in Master Bath at various areas around apron of whirlpool tub. Crooked crown molding in master bathroom shower (south wall molding bowed). • Irregular cut made at Master bathtub window (top). • Tiles miss cuts above glass block and surrounding [g]lass block. • Excessive tile lippage in 3rd bathroom including deco band at various areas and two tile[s] exterior of shower (exceeds 1/32”). • Excessive tile lippage in 4th bathroom including deco band at various areas and one tile on exterior of shower (exceeds 1/32”) • Grout is not properly hydrated and is resulting in voids, Master bath shower and Bath #4 shower (grout not harden properly) • There are chipped tile in shower #4 at various areas of the deco band.

The following complaint items are not installed and [Complainant] wants to be refunded the cost. This inspector does not have the authority to order the contractor to pay money restitution. • Shower is missing corner shelves and benches Master Bath. • Shower is missing corner shelves and benches shower #3. • Shower is missing corner shelves and benches shower #4.

The following complainant items [Complainant] stated were not a[n] issue at this time. Therefore there is no action required by the contractor at this time. • Tile drain is not supported in shower #4. • Tile loose in shower #4 right side of shower door.

The following items this inspector was not able to verify [Complainant’s] allegations. Therefore there is no action required by the contractor at this time. • Thinset is not rated for this type of application. • Thinset is not spread evenly and premature de-bonding is being observed.

• Excessive tile lippage in Master Bath. The tile page in the Master bath shower appear[s] to be with in the R.O.C. Standards of 1/32”. Therefore there is no action required by the contractor at this time.

The tile in Master shower appear[s] to be installed on a frame wall out of plumb more than ¼” . . . in eight feet. The Homeowner is a[n] owner/builder acting as his own general contractor and is responsible for the frame wall. Therefore the General contractor should ensure that the wall is plumb within R.O.C. Standards and the contractor is to correct the tile by the appropriate means the following items. • Deco band near front of shower (right side) not square with wall. • Deco band near front of shower (right side) not square with wall [sic]. • Pencil rail in Master shower near the front of shower (right side), the reveal is not the same at both sides of the pencil rail both upper and lower.

According to the Registrar’s record, on March 23, 2009, Respondent’s license was reinstated. On April 28, 2009, the Inspector Hennessy informed the parties that the complaint in this matter was closed “because we have not received a reply from the complainant in response to our most recent correspondence.” On January 5, 2010, the Registrar received Complainant’s request to reopen his complaint and to issue a citation against Respondent’s license. On January 18, 2010, the Registrar issued a Citation and Complaint against Respondent’s license, charging A.R.S. § 32-1154(A)(2), (23), (3) (namely A.A.C. R4-9-108), and (13) (namely A.R.S. § 32-1124(B)). Respondent timely answered the Citation and Complaint, stating that he was trying to resolve Complainant’s complaint. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing. A hearing was held on May 27, 2010. Inspector Hennessy testified. Complainant testified and submitted two exhibits. Respondent testified. Additional Hearing Evidence Inspector Hennessy performed a prehearing jobsite inspection on May 25, 2010, which both parties had attended. Some of the tiles had been removed. Most repairs that the CWO required had not been performed. Inspector Hennessy testified that he asked Complainant to check off any items that were no longer in issue. Complainant indicated that the crown molding in the master bathroom had been corrected. The parties’ original contract only required Respondent to install the travertine tile, not to provide it. After the CWO was issued, the travertine that was used for the tile that Complainant originally had selected was no longer being quarried. Both parties agreed that Respondent should not remove any tiles until he had matching tile to complete repairs. Some time passed before Complainant was able to locate and Respondent was able to purchase travertine tile that matched the tile that Respondent had originally installed at Complainant’s residence. In addition, due to the economy, Respondent has taken outside employment, which limits the time that he has available to perform repairs. Complainant’s employment requires him to work at least 60 hours per week, which further limits the time available for Respondent to perform repairs. Complainant did not dispute Inspector Hennessy’s opinions in the CWO, except that Complainant had expected Respondent to “float out” the tile installation on the out-of-plumb wall to make it appear straight. Complainant also expressed certain opinions on how he felt Respondent should perform corrective action to comply with the CWO. He was advised that, in most cases, the Registrar does not instruct contractors how to perform repairs but only to correct workmanship deficiencies “by the appropriate means.” Respondent did not dispute any of the items on the CWO had required him to correct. Respondent testified that, within a few weeks of when Complainant had located matching tile, Respondent had demoed out the areas of tile that required correction, except for a few deco areas. Scheduling had been difficult, however. Respondent had always intended to perform repairs. At the end of the hearing, Complainant agreed that Respondent could begin repairs over the 3-day Memorial Day weekend. According to the Registrar’s record, on the date of the hearing, Respondent’s license was current and in good standing. One complaint had been resolved, settled, or withdrawn and this complaint apparently was the only complaint pending against Respondent’s license. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 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.”[5] Respondent admitted that his workmanship was deficient in the areas identified by the CWO. Complainant therefore has borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(3).[6] Respondent has established that more time than the fifteen days allowed by the CWO was required to perform correction due to the unavailability of travertine tile for repairs. But Respondent has not established that circumstances beyond his control prevented him from complying with the CWO before the date of the hearing in this matter. Complainant therefore has borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(23).[7] No evidence was submitted to establish that Respondent violated any building code or departed from project specifications. Complainant therefore has not borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(2).[8] No evidence was submitted to establish that Respondent failed to put its license number preceded by the acronym “ROC” on any document used in its contracting business. Complainant therefore has not borne his burden to establish that Respondent violated A.R.S. § 32-1154(A)(13) (specifically A.R.S. § 32-1124(B)).[9] Complainant has not established that he is entitled to payment from Respondent in any amount in restitution under A.R.S. § 32-1156.01. Respondent is appropriately licensed and his license is current and in good standing. Complainant is not entitled to dictate the terms or manner of Respondent’s corrective action. If the Registrar accepts this recommended decision and Respondent fails to perform the required corrective actions in a professional and workmanlike manner, Complainant’s remedy is to request a compliance inspection. With respect to the out-of-plumb wall, Respondent accepted the surface when he laid tile on the wall. He should not be required to correct the crooked surface of the tile, however, unless and until Complainant has corrected the wall to be straight and plumb. 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 should suspend Respondent James Dowling dba Epic Stone and Tile’s License No. ROC176923, Class K-48 until Respondent provides proof that he has complied fully with the CWO. It is further recommended that the Registrar should not suspend Respondent’s license and, instead, should close Complaint No. 2009-44032646 if, on or before the effective date of the Registrar’s final order, Respondent provides a written proof of one of one the following: 1) Respondent in a professional and workmanlike manner has performed fully the repairs required by the CWO; or 2) Complainant has refused reasonable access to allow Respondent to perform the repairs required by the CWO or, with respect to the tile on the frame wall in the master bathroom, Complainant has failed to repair the underlying wall. It is further recommended that the Registrar should require Respondent pay the sum of $250.00 as a civil penalty pursuant to A.R.S. §32- 1154(D). If Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar should revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32- 1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. 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, June 4, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] 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). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] 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.” [7] This statutory subsection 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] 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.” [9] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure in any material respect to comply with this chapter.” The underlying provision charged was A.R.S. § 32-1124(B), which requires licensees to place their license number, preceded by the acronym “ROC” “on all advertising, letterheads and other documents used by the licensee in the conduct of business regulated by this chapter.”

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