ALJDEC decisions subject to certification as final

2010A-25735072-ROC · Registrar of Contractors · 2011-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 4, 2011

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by President and Qualifying Party Bill Miller.

WITNESSES: Jim Dimond, ROC Inspector Sondra Kirtley Bill Miller

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence, including marked Exhibits 1 through 4 submitted by Complainant, and testimony at the hearing. Furthermore, this tribunal takes administrative notice of ROC complaint file G06-0091, a 2005 complaint that Complainant filed against M C Quality Contractors (“M C Quality”), who had worked on the property prior to Respondent. During the hearing, Respondent agreed to reimburse Complainant $175 for corrective work that was performed by others. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent has failed to perform in a workmanlike manner. The Administrative Law Judge recommends that Respondent perform corrective work or have its license suspended. FINDINGS OF FACT 1. Respondent is the holder of license B.184455-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to operate as a general contractor for residential projects. Bill Miller (“Miller”) is the Qualifying Party. 2. Respondent was hired by Complainant to perform repairs to defective work described in a 2005 Corrective Work Order (“CWO”) issued against M C Quality in case G06-0091. Respondent’s scope of work included removal and replacement of travertine tile in Complainant’s kitchen/breakfast area and drywall work in various parts of the house. 3. Complainant later filed a complaint against Respondent, claiming that the tile in the kitchen/breakfast area was cracking and that Respondent’s drywall work was deficient. 4. ROC Inspector Jim Dimond inspected the work in February 2010. He found the kitchen/breakfast area tile installed by Respondent to be cracking directly over a crack in the foundation, and he found vertical displacement of that crack. He issued a CWO on March 3, 2010, that ordered Respondent to correct the cracked tile “in an appropriate manner,” noting that there was no written statement notifying Complainant of a “defective/inadequate substrate.”[1] He also ordered repairs to some of the drywall complaints.[2] 5. With regard to the drywall issues in the CWO (item 2), the parties settled those issues during the hearing. Respondent agreed to pay $175 to Complainant and Complainant accepted that offer. Therefore, only the tile work is now at issue. 6. At hearing, Inspector Dimond described the foundation underneath the cracked tile as a slab without control joints. The crack is diagonal across the floor and has vertical displacement. It is not a hairline crack and is outside workmanship tolerances. The Inspector’s testimony was that the crack was indicative of expansive soil problems underneath the slab. He testified that the geographic area of the home is well-known for expansive soils. He stated that the type of cracking (diagonal with vertical displacement) is also suspicious for underlying soil issues. He found it significant that there are no control joints in the slab and that the floor has a prior history as part of the G06-0091 complaint. Inspector Dimond concluded that Respondent should have addressed the foundation crack with Complainant before installing tile over it and, since Respondent did not do so, Respondent is responsible for correcting it so that it meets standards, even if that includes addressing any underlying issue with the substrate. 7. Miller testified that Respondent used an epoxy coating on the slab and fiberglass mesh was placed over the large diagonal crack before the tile was installed. He testified that in his opinion the floor was properly prepared for the tile installation. He also testified that there was no vertical displacement of the crack at the time of tile installation. 8. ROC publication “Workmanship Standards for Licensed Contractors” (June 2009), page 42, states: “When an inadequate or defective substrate is present prior to installation of tile, the general contractor and/or the owner should be notified in writing by the tile contractor that a specific surface area is unacceptable for installation.” This standard holds contractors responsible for informing homeowners about possible foundation defects before work is performed so that responsibility issues can be expressly addressed before any work is performed. Inspector Dimond relied on this standard when ordering Respondent to correct the tile. 9. Respondent takes the position that there was no indication of an underlying soil problem at the time the tile was installed. Miller testified that the epoxy and mesh was all that was required. 10. Complainant argued at the hearing that Respondent was aware of an issue with the foundation in that area. As part of Complainant’s prior complaint against M C Quality in G06-0091, Complainant raised the issue of “foundation is settling at a far different rate on the southwest side of the house.” Because Respondent was aware of the earlier complaint in G06- 0091, Complainant asserts that Respondent was aware of the issue with the floor foundation. 11. The evidence does not support Respondent, even if there was no vertical displacement of the crack at the time of the tile installation. Respondent should have been suspicious that an underlying problem existed based on the factors noted by Inspector Dimond, most notably that the home is in an area notorious for expansive soils. Those factors, taken in the context of the type of cracking in the floor, should have made Respondent suspicious enough to formally raise the issue with Complainant and address it in a clear manner so that the respective responsibilities of the parties could have been stated in writing. Without that written notification, the Inspector’s decision to require correction by Respondent is supported by the ROC written standards and the evidence. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(23), and (A)(3) by way of ROC Rule R4-9- 108.[6] Subsection (A)(23) prohibits failure to comply with an ROC Corrective Work Order. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108, which prohibits poor workmanship. 3. Only item 1 of the March 3, 2010, CWO, relating to the cracked floor tile in the kitchen/breakfast area, remains contested. As found above, Respondent failed to meet minimum workmanship standards by failing to recognize the potential for an underlying expansive soil problem and addressing it in writing with Complainant. Because of this, Respondent is responsible for correcting the tile work so that it meets workmanship standards. 4. A review of Respondent’s current license status shows that the license is current and in good standing since 2003. 5. The appropriate sanction in this matter is to allow Respondent to comply with the CWO by correcting item 1. If Respondent does not do so in a timely manner, the license should be suspended. A civil penalty is not warranted in this case because Respondent’s failure to comply with the CWO was based on a good faith, though erroneous, understanding of its responsibility. RECOMMENDED ORDER IT IS RECOMMENDED that license B.184455-R, held by Millson General Contracting, Inc., be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that March 3, 2010, CWO item 1 has been corrected as noted above and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2010-25735072 (formerly 10-2573) 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, January 24, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Item 1. [2] Item 2. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [6] There are also other citations that were not addressed by the evidence presented at hearing.

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