ALJDEC decisions subject to certification as final

2011A-5598-ROC · Registrar of Contractors · 2012-11-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 6, 2012 APPEARANCES: Complainant Michael Horst appeared on his own behalf; Respondent Michael Rogers Flooring LLC appeared through Michael Rogers, its Qualifying Party. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. K- 8.206556-D to Michael Rogers LLC (“Respondent”). The Registrar received a Complaint against Respondent from Michael Horst (“Complainant”) regarding the finish and appearance of tile installed by Respondent at 2264 East Ross Avenue, Phoenix, Arizona. After the Registrar assigned the Complaint to its inspector, Jim Dimond, for investigation, he performed a jobsite inspection. Following the jobsite inspection, Inspector Dimond concluded that the flooring was not flawed and was “in fact the intended look from the manufacturer.” Subsequently, Complainant raised a new allegation that there was excessive grout haze on the tile flooring. With respect to the new issue, Inspector Dimond issued a Corrective Work Order in which Respondent was instructed to correct the condition in an appropriate manner. Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(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 state agency, for an evidentiary hearing. Inspector Dimond testified he was unable to conduct a pre-hearing inspection because Complainant was not present at the home at the scheduled time. Complainant did not make any attempt to reschedule the pre-hearing inspection. A hearing was held on November 6, 2012. Inspector Dimond testified about the Registrar’s standards. Complainant submitted one exhibit and testified on his own behalf. Respondent presented the testimony of Charles Kuehl with Interceramic, the manufacturer of the tile, and Michael Rogers, its Qualifying Party. Hearing Evidence Complainant contracted with Respondent to install tile flooring throughout his home. Complainant selected a tile intended to mimic the look of aged wood flooring. The tile was catalogued as “STS HIGH” or high on the shade and texture spectrum. After the tile was installed, Complainant noticed several issues with the flooring that he attributed to defects in the tile. Specifically, Complainant noted white spots, bands of discoloration running across some tiles, and “fingerprint” marks on some tiles. Mr. Kuehl visited the home and examined the tile. Mr. Kuehl observed the natural variations in the flooring and stated the product was intended to mimic natural, rustic wood flooring. Mr. Kuehl determined the product was not defective and was the look intended by the manufacturer. Some additional tiles were submitted to the manufacturer for testing. According to the manufacturer, the tiles were not defective and were within the product specifications. Complainant had a professional tile and stone cleaning company examine and evaluate a single tile to determine if it thought it could resolve the situation. According to Complainant, “The company Vice President did use some chemical and was able to ‘improve’ the appearance of the tile.” Approximately a week later, the cleaning company came back to the house and attempted to clean a larger area so that Complainant would feel more comfortable with cleaning as the solution to the issue. Complainant reported that the additional cleaning “proved that the cleaning will NOT resolve the issue.” Respondent solicited bids from different cleaning companies to remove the grout haze. Respondent communicated these offers to Complainant and offered to pay Complainant the cost of the highest bid and Complainant could then hire the company with which he felt most comfortable working. Respondent arranged for a different stone cleaning company to clean the master bedroom and bathroom to remove the grout haze. The two different companies that Complainant and Respondent hired to perform test cleaning or extensive cleaning of the tile flooring were unable to clean the tile flooring to Complainant’s satisfaction. Complainant stated that he did not feel any amount of cleaning would make him satisfied with the flooring. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Undisputed credible testimony established that a company hired by Complainant attempted to clean the grout hazing prior to Respondent being afforded an opportunity to correct the situation. 4. Undisputed credible testimony established that Complainant failed to provide the Registrar with an opportunity to inspect the flooring prior to the hearing to determine if the cleaning completed by either the company Complainant hired or the company Respondent hired were able to bring the floor up to the Registrar’s and industry standards. 5. Complainant did not establish that there was any defect with the product or that Respondent’s installation of the flooring violated industry standards or was not professional and workmanlike in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. 6. Complainant did not establish that Respondent failed to take appropriate corrective action to comply within a reasonable period of time after receiving a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(23). 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 dismiss Complainant Michael Horst’s Complaint in Case No. 2011-5598 against Respondent Michael Rogers Flooring LLC’s License No. K-8.206556-D. 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, November 26, 2012.

/s/ Tammy L. Eigenheer Administrative Law Judge Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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