ALJDEC decisions subject to certification as final

2010A-308475653-ROC · Registrar of Contractors · 2011-04-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 11, 2011, at 8:00 a.m. APPEARANCES: Complainant Meiny Vermaas appeared on her own behalf; Respondent Allied Stone Systems, Inc. appeared through Michael J. Green, owner and officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In September 2001, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC168311, Class K-5 for dual marble and granite to Allied Stone Systems, Inc. (“Respondent”). On or about September 1, 2010, the Registrar received a complaint from Meiny Vermaas (“Complainant”), alleging seven specific alleged deficiencies in Respondent’s installation of manufactured stone in Complainant’s house at 1219 East La Jolla Drive, Tempe, Arizona 85282. The Registrar’s inspector, James Hennessy, performed a jobsite inspection and on September 29, 2010, issued a Corrective Work Order (“CWO”) to Respondent, directing it within fifteen days to correct by appropriate means two of Complainant’s specific complaints, in relevant part as follows: The following complaint items were viewed by this Inspector and are in his opinion not to be flaws and to be within Industry standards. Therefore there is no action required by the contractor at this time. • Visible flaws in ECO Stone window wrap around on the window sill. • Visible flaws in the ECO Stone material for counter top around the cook top in the kitchen peninsula. • Contractor did not use customer provided template [for] kitchen sink cut out.

It appears that H/O Husband opened the box the sink came in and the Contractor alleges that no template was in the box and cut sink in an [sic] standard manner. This inspector was not able to confirm or deny that a template was provided. Therefore there is no action required by the contractor at this time.

• Both ECO Stone vanity dresser tops in the kid’s [sic] bedrooms have a double overhand [sic] of 1 1/2,” and I specified that the overhang was to be even with the drawer fronts.

It appears that the overhang is approximately 1 1/2” and the contract states 1 1/2”. This inspector was not able to confirm or deny the H/O’s allegations. Therefore there is no action required by the contractor at this time.

• ECO Stone vanity top in the guest bathroom as a sink bowl set too far back and the faucet cannot be tightened in place.

It appears that there is nothing on the contract specifying the des [sic] that the sink was to be centered in the vanity top, and faucet was installed by others. Therefore there is no action required by the contractor at this time.

• ECO Stone vanity top in guest bathroom, corner seam is visible due to sloppy work.

It appears there [sic] the seam on the right side of vanity near corner has area where the seam is visible and the contractor per a jobsite agreement will correct.

• Silicon residue on the ECO Stone window sill in the workroom . It appears that there is some kind of residue on the ECO Stone close to the wall by the window. Therefore the contractor is to correct by the appropriate means.

• Never signed a contract or signed or a CC slip. The contractor ran my credit card for the second half of payment the day before installing the tops, $2894.76 without my acceptance of job and this I am now disputing pay out [sic] with my credit card company.

This inspector does not have authority to order the contractor to refund monies. [Emphasis in original.]

On or about October 22, 2010, the Registrar received Complainant’s request for hearing. On November 10, 2010, the Registrar issued a Citation and Complaint against Respondent, charging violations of A.R.S. § 32-1154(A)(2), (3), namely A.A.C. R4-9-108, and (23). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on April 11, 2011. Inspector Hennessy testified. Complainant submitted ten exhibits and testified on her own behalf. Respondent submitted four exhibits and presented the testimony of two witnesses: (1) Michael J. Green, Respondent’s owner; and (2) Chrissy Quillen, Respondent’s saleswoman.

Additional Evidence Complainant hired various contractors to perform remodeling at her house. Her cabinet contractor, Cabinets by C & F, referred her to Respondent’s saleswoman, Ms. Quillen. Ms. Quillen met with Complainant a number of times to discuss her desires and requirements. No signed contract or detailed written specifications were submitted at the hearing. Both parties submitted an unsigned document entitled Proposal/Contract that had a revised date of May 25, 2010, which provided that Respondent would install 2-centimeter thick ECO Stone, a stone-like countertop product manufactured by Cosentino (“ECO Stone”), in various rooms in Complainant’s house, for a total contract price of $5,789.58. The Proposal/Contract did not provide any details on the exact location of the kitchen or bathroom sinks on the countertops and did not mention the use of clips to anchor the sinks to the countertops. The Proposal/Contract stated that the edge detail of the guest bathroom countertop would be “1½” Mitre.” Complainant paid Respondent half the contract price, $2,894.76, to begin the work by authorizing a charge on her credit card. Ms. Quillen went on vacation. Although she planned to return to Arizona on July 12, 2010, she testified that she was “stuck on the east coast” until July 15 or 16, 2010. Ms. Quillen testified that if a customer requests her presence, she tries to be on the jobsite when Respondent prepares templates for the surfaces where it will install stone materials. On July 13, 2010, Respondent’s employee, Mark Hill, went to Complainant’s house to measure the surfaces where Respondent would install the ECO Stone and to prepare templates. Mr. Green testified that Respondent does not cut stone without a template and that before it cuts the stone, it lays the templates on the stone at Respondent’s workshop where the customer can view them and if desired, make changes. Such changes usually do not increase the price of the project. Complainant testified that she tried to tell Mr. Hill what she wanted but that he did not understand. Mr. Green testified that Mr. Hill is not authorized to make changes to design. When Ms. Quillen returned to Arizona, she found several e-mails from Complainant regarding various changes that she was contemplating to the plan for the ECO Stone. Complainant at hearing did not claim that any one of the changes that she requested before Respondent cut and installed the ECO Stone was the same as the alleged deficiencies that she identified in her complaint to the Registrar. On July 16, 2010, Ms. Quillen responded to Complainant’s e-mails by informing her that the requested changes would delay completion of the project and that “[w]e need to make final decision so we may proceed with production.” Complainant did not go to Respondent’s workshop to view the templates and did not ask Ms. Quillen to delay the project so that Complainant could refine her design details. On July 27, 2010, Respondent’s crew installed at Complainant’s house the ECO Stone that it had cut based on the templates that Mr. Hill had prepared. After Respondent installed the ECO Stone, it charged Complainant’s credit card the remaining $2,894.76 of the contract amount. Because Complainant was not satisfied with Respondent’s installation, she disputed the charge. On October 18, 2010, her credit card company found in her favor and issued a permanent credit in the amount of the payment to Respondent. Complainant testified that she is from the Netherlands and admires European design. In addition, she is an artist who makes quilts and she takes the time to position pieces of fabric in her quilts to hide flaws and to show the fabrics to their greatest advantage. Complainant testified that Mr. Hill did not understand her “vision” for the countertops, and that Ms. Quillen was not there to communicate on her behalf, even though the appointment had been delayed a week to allow Ms. Quillen to be present. Complainant presented evidence on four alleged defects in Respondent’s installation of the ECO Stone at her house: (1) The guest bathroom sink was not centered on the cabinet and was too close to the back wall; (2) The ECO Stone covered the edges of the kitchen sink, and she wanted the edges to show to “break up the rectilinear elements of the countertop”; (3) Respondent did not use the under mount clips for the kitchen sink that she had ordered, but installed it with plywood braces; and (4) The countertop in the guest bedroom should have been flush with the front of the built-in dresser, rather than having an overhang. Mr. Green denied that Complainant’s complaint items 1, 2, and 3 evidenced that Respondent’s installation of the ECO Stone was deficient in any respect. The information from the kitchen sink’s manufacturer that Complainant submitted showed that it was acceptable to install the countertop with a slight overhang over the edges of the sink. The fixtures that Complainant’s plumber installed on the guest bathroom sink functioned and the door in the cabinet beneath the sink opened fully. Mr. Green testified that the location of the guest bathroom sink on the counter, the overhang on the kitchen sink, and the overhang on the guest bedroom counter were design choices, and that Respondent could have constructed these items differently had Complainant communicated her choices before Respondent cut and installed the ECO Stone. With respect to the under mount clips, Mr. Green testified that the standard thickness of stone in the western United States was 2 centimeters, or about ¾ inch, thinner than the 3 centimeters that was standard in the eastern United States. Because drilling holes to allow the use of under mount clips would “blow out” the top of 2-centimeter thick stone, clips were not used to hold sinks to stone countertops in the western United States. Instead, Respondent installed plywood to secure the kitchen sink along the entire length of the counter, providing greater support for the stone countertop, as well as the sink. Inspector Hennessy testified that he performed a prehearing jobsite inspection and that Respondent had corrected the visible seam on the guest bathroom countertop and had removed the residue on the window sill in the workroom in a professional and workmanlike manner, as the CWO required.

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] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] Complainant did not establish that Respondent violated A.R.S. § 32- 1154(A)(2),[4] (3), namely A.A.C. R4-9-108,[5] or (23).[6] With respect to the parties’ financial dispute, the legislature has not empowered the Registrar to adjudicate or award money damages.[7] The parties may resolve their remaining claims against each other in a court of competent civil jurisdiction. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, the Registrar dismiss Case No. 2010- [number redacted] against Respondent Allied Stone Systems, Inc.’s License No. ROC168311, Class K-5. 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, April 28, 2011. /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] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] 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.” [5] 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.” A.A.C. R4-9-108 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.” [6] 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.” [7] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984).

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826