ALJDEC decisions subject to certification as final

2012A-12-ROC · Registrar of Contractors · 2012-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 2, 2012, at 8:00 a.m. APPEARANCES: Steven Neil Rubin (hereinafter “Complainant”) appeared on his own behalf. C S C Stone Inc (hereinafter “CSC Stone”) appeared through its qualifying party, Roman Andy Androsiuk. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. CSC Stone is the holder of License No. C-48.239025-R issued by the Registrar of Contractors. 2. This is a residential matter where CSC Stone installed new floor tile in Complainant’s residence. 3. Complainant was dissatisfied with CSC Stone’s workmanship and complained to CSC Stone. When CSC Stone failed to correct its work to his satisfaction, Complainant filed a formal Complaint against CSC Stone with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Eric Ulinger (hereinafter “Inspector Ulinger”), conducted an onsite inspection. Inspector Ulinger issued a written Corrective Work Order on February 7, 2012, directing CSC Stone to perform designated corrective work on Complainant’s new tile floor. 5. The Corrective Work Order provided, in pertinent part, as follows: Pursuant to our recent investigation of this complaint and based on the facts before the agency at this time, the following action must be taken no later than 15 calendar days from the date of this letter.

FAILURE TO COMPLY MAY RESULT IN THE ISSUANCE OF A CITATION, SUSPENSION AND/OR REVOCATION OF YOUR LICENSE TOGETHER WITH CIVIL PENALTIES OF UP TO $500 FOR EACH VIOLATION.

1. Missing grout. – Per the homeowner this item was corrected prior to the jobsite inspection. 2. Uneven tile. – The contractor is to correct lippage exceeding 1/32” by the appropriate means.

6. Inspector Ulinger’s February 7, 2012 Jobsite Inspection Notes provided, in pertinent part, as follows: I tested the lippage of 40 tiles in various locations where the displacement is most obvious. 18 such tiles had lippage that exceeds 1/32”. Based on this I estimate that approximately 20-25% of the floor needs correction.

7. The Registrar of Contractors’ Workmanship Standards for Licensed Contractors provides, in pertinent part, as follows: 5. PD Uneven tile. (Lippage) AT Inherent characteristics of the tile dictate the method of installation. All unusual characteristics of the tile should be explained to the owner or the owner’s agent prior to installation. CR Contractor to make necessary repairs.

6. PD Uneven Natural Stone Tile (Lippage) AT Lippage of all manufactured Natural Stone Tiles are to be no greater than 1/32” between individual tiles. CR Contractor should make necessary repairs.[1]

8. Complainant testified that he purchased the floor tiles from Preach Building Supply and that it recommended CSC Stone for the installation of the new floor tile. Complainant stated that he then retained CSC Stone to install the new floor tile in his residence.[2] 9. Complainant testified that he notified CSC Stone that the new floor appeared to be “unlevel.” CSC Stone’s representative assured Complainant that the new tile floor would look better when it was grouted in. Complainant was still dissatisfied with the condition of the new tile floor after CSC Stone’s grouting work was completed.[3] 10. Complainant testified that his new tile floor is like a “roller- coaster” and that the lippage in the new tile floor is very noticeable.[4] 11. Complainant acknowledged that he waited until the day before his warranty was up to file a complaint against CSC Stone with the Registrar of Contractors. Complainant stated he delayed filing a formal complaint against CSC Stone because he thought that CSC Stone would take care of the problems with tile floor without the necessity of filing a complaint. 12. CSC Stone’s qualifying party, Roman Andy Androsiuk (hereinafter “Mr. Androsiuk”), testified that the floor tiles selected by Complainant were slightly concave with all of the corners curving down. Mr. Androsiuk stated that he noticed that the tile floor was going to be unlevel while he was installing the floor tiles. Mr. Androsiuk stated that his mistake was that he should have informed Complainant of the problems with the floor tiles before continuing with the floor tile installation.[5] 13. Mr. Androsiuk testified that he was unable to comply with the terms of the Corrective Work Order because Complainant did not have enough extra floor tiles to perform the directed corrective work.[6] 14. The Corrective Work Order did not require Complainant to provide replacement floor tile. CSC Stone failed to perform any corrective action on the unacceptable lippage in Complainant’s tile floor. 15. Administrative notice is taken of CSC Stone’s prior license record as reflected on the Registrar of Contractors’ public website on August 16, 2012. Such prior license record reflects that License No. C-48.239025-R of CSC Stone is current. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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. Over twenty percent of the tile floor in Complainant’s residence displays lippage in excess of 1/32”. CSC Stone acknowledged that it did not call alleged deficiencies in the floor tile to Complainant’s attention before installing the floor tile. This Tribunal concludes that CSC Stone violated the charged provision of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[7]. 4. CSC Stone failed to comply with the terms of the Corrective Work Order. This Tribunal concludes that CSC Stone violated the charged provision of A.R.S. § 32-1154(A)(23).[8] RECOMMENDed order In view of the foregoing, it is recommended that, commencing on the effective date of the Registrar’s Order that License No. C-48.239025-R of CSC Stone shall be suspended until the Registrar of Contractors receives and accepts written proof that CSC Stone has fully complied with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if CSC Stone fully accomplishes the above described corrective action on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter shall be closed. It is further recommended that, in addition to the above- provided penalties, if any, CSC Stone pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154(D). The failure by CSC Stone to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of CSC Stone’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with CSC Stone, as defined in A.R.S. §32- 1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification. Done this day, August 17, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] Arizona Registrar of Contractors’ Workmanship Standards for Licensed Contractors at 43 (June 2009). [2] 8/2/12 Hearing Record (hereinafter “H.R.”) at 14:56-16:00. [3] H.R. at 16:01-16:25. [4] H.R. at 22:30-23:45. [5] H.R. at 29:37-32:26. [6] H.R. at 34:20-37:09. [7] A.A.C. R4-9-108. Workmanship Standards A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards. [8] A.R.S. § 32-1154(A)(23) Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

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