ALJDEC decisions subject to certification as final

2010A-308477274-ROC · Registrar of Contractors · 2011-08-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 18, 2011

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by Perry Smith, Qualifying Party and Managing Member, and his wife Meilien Smith, Member.

WITNESSES: Ted Gerold, ROC Inspector Greg Stanfield Perry Smith

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order. The case is based on Respondent’s installation of a granite bar countertop on top of a particleboard substrate rather than a plywood substrate. The issue is whether such installation complies with workmanship standards. Respondent denies the allegation. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Respondent’s Exhibits 1 through 7. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation.

FINDINGS OF FACT 1. Respondent is the holder of license K-61.241872-D, a dual specialty contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform carpentry remodeling and repairs for both residential and commercial projects. Perry Smith is Respondent’s Qualifying Party. 2. Complainant Greg Stanfield owns a bar and grill. He hired Respondent to install granite for the bar top. Respondent installed the granite on top of a particleboard substrate that was installed by someone else. 3. In November 2010, Complainant filed an ROC complaint about the granite countertop. ROC Inspector Ted Gerold inspected the site on December 13, 2010 and found poor workmanship with regard to the installation of the granite on a substrate made of particleboard. He issued a Corrective Work Order (“CWO”) stating that Respondent was to remove the granite and reinstall it at no cost to Complainant after Complainant has the particleboard substrate replaced with sealed plywood. 4. At hearing, Inspector Gerold explained that he found that Respondent’s installation of the granite on top of a particleboard sub-deck did not meet workmanship standards. He did not hold Respondent responsible for replacement of the particleboard substrate, but testified that it is not proper to install granite on top of anything but sealed plywood. 5. Inspector Gerold identified the basis for his conclusion that Respondent had fallen below workmanship standards as his 21 years of experience in the homebuilding industry in Arizona. He testified that he was a superintendent for several homebuilders and that they never put granite on top of particleboard at any time. Therefore, he strongly opined that Respondent violated industry standards by installing granite on the particleboard substrate. 6. Because Inspector Gerold has been an ROC Inspector for ten years, his experience in the field as a builder is more than ten years old. In addition, he admitted that his experience as a builder is almost exclusively with residential building, although he pointed out that the standards should be higher for a bar in a commercial establishment. He did not relate to his opinion any of his experience as an inspector. 7. Respondent submitted Exhibit 6, which is a letter and information from a material supplier concerning “Industrial Grade Particleboard” that can be used for countertop sub-decks. However, nowhere in Exhibit 6 does it state that the material can be used for granite countertops. In addition, Perry Smith admitted that Exhibit 6 did not document the actual particleboard used in the project at issue. Therefore, Exhibit 6 is relevant only to a general understanding of industrial particleboard. 8. Perry Smith testified that he knew the sub-deck upon which he installed the granite at Complainant’s bar was particleboard because of where the joints are located. He testified that he observed the length of the joints in the sub-deck of the bar and knew that it was made of industrial particleboard because only industrial particleboard comes in lengths of 10 and 12 feet, while regular particleboard comes in lengths of feet. He saw joints longer than 8 feet apart in Complainant’s bar sub- deck and knew that industrial particleboard was used. He also testified that he observed the density of the particles in the board and knew it was industrial particleboard. 9. Perry Smith also testified that he has used industrial particleboard for 30 years in installing granite countertops. Based on his experience, use of industrial particleboard under granite countertops is acceptable in the countertop industry. The Administrative Law Judge asked questions about Perry Smith’s background, experience, and knowledge in the field[1] and finds Perry Smith’s testimony to be credible and knowledgeable. 10. Neither Complainant nor Inspector Gerold provided information from a granite countertop manufacturer showing what type of sub-deck is required by the manufacturer. By the same token, Respondent did not provide similar information showing that industrial particleboard manufacturers approve of the use of their product under granite. 11. Weighing all the evidence on the record before the Administrative Law Judge in this matter, the evidence supports a finding that use of industrial particleboard under granite countertop is within industry standards. In addition, based on Perry Smith’s testimony, industrial particleboard was used as the sub-deck at Complainant’s bar.

CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] 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.[4] Complainant has not met that burden. 2. The allegations in the Citation and Complaint are that Respondent has violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule R4-9-108 for failing to meet minimum workmanship standards, and (A)(23), failing to comply with a CWO. As found above, the evidence does not show that Respondent violated those statutes. 3. The preponderance of evidence shows that industrial particleboard was used as the substrate for Respondent’s granite countertop installation and that use of industrial particleboard under granite countertop is allowed by industry standard. Therefore, Respondent did not violate workmanship standards and there was no basis for the CWO. 4. This matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against Respondent Bestway Construction LLC be dismissed.

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, August 8, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 7/18/11 Hearing Record at 1:12:45—1:21:55. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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