ALJDEC decisions subject to certification as final

2010A-308477543-ROC · Registrar of Contractors · 2011-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 21, 2011

APPEARANCES: Complainant appeared on his own behalf, accompanied by his wife Malina Bhakta; Respondent was represented by Managing Member and Qualifying Party Patrick McGauley.

WITNESSES: Randy Cason, ROC Inspector Jigar Bhakta Malina Bhakta Patrick McGauley

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order with regard to tile flooring installed by Respondent at Complainant’s home. Respondent asserts that it has made efforts to correct the work and is willing to perform any further corrective work that the ROC Inspector finds is needed. This tribunal entered the complaint file received from the Registrar of Contractors into the record. Complainant presented Exhibits 1 through 22, photographs of the flooring. Further, the parties submitted testimony from the witnesses listed above 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 that more corrective work is needed. FINDINGS OF FACT 1. Respondent is the holder of license C-8.240139-R issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to install and repair all types of flooring for residential projects. Patrick McGauley is Respondent’s Qualifying Party. 2. Respondent was hired by Complainant to install tile flooring throughout his home and grout the seams. Complainant was not happy with the result and filed a complaint with the ROC. 3. ROC Inspector Randy Cason inspected the jobsite on December 29, 2010, and again on June 20, 2011. After his initial inspection, he issued a Corrective Work Order (“CWO”) that ordered Respondent to correct some tiles that were facing the wrong direction (item 2), to correct joint spacing that was not uniform (item 3b), to correct uneven and discolored grout (item 4), and to correct sharp tile edges at transition areas (item 5). 4. The parties agree that Respondent performed corrective work on the tile. However, Complainant requested a hearing because the corrective work was not properly done and created other issues. At hearing, Complainant stated that those issues were (a) damaged tiles, (b) discolored grout, and (c) grout residue on the baseboards. The parties agreed to address those issues at the hearing. 5. Inspector Cason testified that there are chips in 25 to 50 tiles, on the edges and corners, caused by the corrective work done after the CWO. He also testified that there is visible grout residue on the baseboards that needs to be cleaned. Finally, he testified that there was discoloration of the grout in some areas. He noted that the grout had not been sealed and that it was common for grout to discolor in high traffic areas. 6. Complainant submitted Exhibits 1 through 22, which are photographs showing the condition of the tile flooring as of June 20, 2011. The photographs clearly show damaged tiles[1] and grout residue on baseboards.[2] Less clearly, but still visibly, the exhibits show various areas where the grout is a lighter color than in other areas.[3] 7. The ROC has published Workmanship Standards for Licensed Contractors (“Standards”) that address grout discoloration. The Standards allow for some discoloration but do not allow excessive discoloration. Contractors are not responsible for grout discoloration after the first year or discoloration that has been caused by use of topical substances not recommended by the manufacturer. The evidence of record shows excessive discoloration and does not show that non-recommended cleaners have been applied. Also, the grout is less than a year old. 8. The evidence and testimony submitted at the hearing support Complainant’s claim that issues (a), (b), and (c) identified above do not meet minimum workmanship standards. The grout damage, discoloration, and residue on the baseboards must be corrected by appropriate means. 9. During the hearing, Respondent agreed that any corrective work ordered pursuant to this decision will be done by a different crew, meaning different workers than those that have been on Complainant’s property doing tile work up to the hearing. Complainant agreed with that stipulation. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] 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.[6] 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (“A.R.S.”) § 32-1154(A)(23) (prohibits failure to comply with a CWO), and (A)(3) by way of ROC Rule R4-9-108 (prohibits poor workmanship). Upon finding that corrective work is needed, Complainant requests that a contractor other than Respondent perform the work. 3. As found above, there is corrective work needed in three areas, identified as (a) damaged tiles, (b) discolored grout, and (c) grout residue on the baseboards in Finding of Fact 4. Therefore, violation of the cited statutes has been shown. 4. A review of Respondent’s current license status shows that the license is current and in good standing since 2007. This is a good history. 5. Complainant’s request to have another contractor do the work is denied. The appropriate sanction in this matter is to allow Respondent to comply with the CWO by performing the corrective work with a different crew, as agreed to at the hearing. Respondent must correct the issues by appropriate means. If Respondent does so, the complaint should be closed. If Respondent does not do so in a timely manner, the license should be suspended. A civil penalty is also warranted due to Respondent’s failure to comply with the CWO. RECOMMENDED ORDER IT IS RECOMMENDED that license C-8.240139-R, held by Distinctive Flooring LLC, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that Respondent has performed corrective work as noted in Conclusion of Law 3 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-[number redacted] shall be closed. IT IS FURTHER RECOMMENDED that, along with the sanction provided above, Respondent Distinctive Flooring LLC pay a civil penalty of $250.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty, on or before 30 days following the effective date of the Registrar’s Order entered in this matter, shall result in the automatic revocation of Respondent’s license, effective on the 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 made.

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, July 8, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 2, 3, 4, 6, 10, 12, 14, 15, and 17. [2] Exhibits 9, 11, 16, and 19. [3] Exhibits 1, 5, 8, 7, 13, and 20. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] 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