ALJDEC decisions subject to certification as final

2012A-2320-ROC · Registrar of Contractors · 2013-11-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 16, 2013 APPEARANCES: John Marley and Malena Marley appeared on their own behalf; Joel Dryden appeared for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. Respondent Alliance Flooring Sales LLC (“Alliance”) holds License No. C-8.231911-R issued by the Registrar of Contractors (“Registrar”). 2. Joel Dryden is a member of Alliance’s LLC and its qualifying party. 3. In July 2011, Alliance installed a tile floor at the home of Complainants John Marley and Malena Marley. 4. On May 3, 2012, the Marleys filed with the Registrar Complaint No. 2012-2320 against Alliance alleging seven problems with the tile and its installation. 5. On May 28, 2012, the Registrar issued a Corrective Work Order signed by Inspector Jim Dimond. The Corrective Work Order[1] shows: 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.

Item 1- The grout through-out the home is caving in/coming out. Contractor is to correct the condition in an appropriate manner.

Item 2- The tile is not all level, there are some high spots, through-out. No lippage was noted or pointed out. No action is required of the contractor.

Item 3- Some tiles in the areas where the contractor used a razor blade to chip out the bad grout are chipped/scratched from the razor blades. Contractor is to correct the condition in an appropriate manner.

Item 4- My 15 month old son cut his foot open on a chunk of tile that was left behind by the contractor when they were at my home to fix a chipped tile. The child was present at the inspection and appeared healthy and very happy and displayed no signs of injury. Contractor is reminded to take all safety precautions while performing work.

Item 5- There were a few tiles that were laid by the contractor had a different sheen to them. All but one were pulled up at the time of install. Eight months later there was one last tile that was finally chipped up and replaced with a tile we had on hand for another area of our home. This item has been corrected and no further action is necessary.

Item 6- The tile is not all laid straight, there is a small ‘smile’ line to it. The grout lines were within industry standards. No action is required of the contractor.

Item 7- Many of the grout lines that remained after removing the bad grout show signs of a thin layer of new grout. The grout repairs are within standards and no action is required of the contractor.

From a scheduling point of view and in order that the contractor may take corrective measures in an orderly and prompt manner, cooperation between the contractor and complainant is necessary.

6. Prior to the Corrective Work Order being issued, Alliance had been to the home a number of times to make repairs including replacing cracked tiles. 7. In June 2012, in response to the Corrective Work Order, Alliance made repairs at the Marleys’ home. In a letter dated July 2, 2012, the Registrar informed the parties that the complaint had been closed. 8. The Marleys requested that the Registrar reopen the matter because there were problems with the grout. 9. The parties exchanged a number of emails and letters (both before and after the Corrective Work Order was issued). This correspondence shows that Alliance was trying to resolve the matter by sending one of its crews to do the required repairs, hiring another company to make the repairs, or making a payment to the Marleys so that they could hire someone to make the repairs. 10. The correspondence shows that the Marleys were unwilling to allow Alliance back into their home and that they did not want to do business with Alliance or anyone associated with Alliance. The Marleys made clear that from their perspective the only acceptable resolution was to have the floor completely removed and that they be reimbursed for materials, installation, removal of the floor, and for the cost of baseboards. 11. The correspondence shows that the Marleys did not want Alliance to contact them unless Alliance was making a good faith attempt to resolve the matter to Ms. Marley’s satisfaction, which would have required Alliance to completely remove the floor and refund to the Marleys all costs. 12. The correspondence between the parties shows that Alliance attempted to have a representative from the grout manufacturer conduct an inspection at the home, but the parties were not able reach a mutually agreeable time for that inspection. 13. On April 4, 2013, Mr. Dimond conducted a Jobsite Inspection that was attended by Mr. Dryden and the Marleys. 14. Mr. Dimond’s Jobsite Inspection Notes show that there were about 25 areas where grout had popped out of the joints leaving voids and that some of these voids were in areas identified in the Corrective Work Order. 15. Mr. Dimond’s Jobsite Inspection Notes show that: (1) Alliance was willing to make the repairs, to hire a third party to do so, or to pay the Marleys the average of three estimates, if the Marleys would obtain the estimates; and (2) the Marleys insisted on getting their money back and both Marleys were adamant that Alliance would not be allowed in the home to make any repairs. 16. On June 4, 2013, the Registrar issued a Citation and Complaint alleging that Alliance may have violated Ariz. Rev. Stat. § 32- 1154(A)(3), namely Ariz. Admin. Code § R4-9-108, and Ariz. Rev. Stat. § 32-1154(A)(23). 17. On August 23, 2013, the Registrar issued a Notice of Hearing setting the matter for hearing on October 16, 2013. 18. Mr. Dryden appeared and testified for Alliance, the Marleys each appeared and testified, and Mr. Dimond testified. 19. Mr. Dimond’s opinion is that as of April 4, 2013, which was the last time he was at the Marleys’ home, the grout work did not meet the workmanship standards. 20. Mr. Dryden did not understand why there were problems with the grout because fixing grout is normally an easy process. In his eight years experience, Mr. Dryden had never seen a case like this. 21. According to Mr. Dryden, the two installers on this job have over 20 years combined experience and he cannot see how they could repeatedly be doing a bad job, which is why he thinks something other than workmanship is the cause of the problem. 22. Mr. Dryden had pursued a number of possible causes for the problem including having the grout analyzed and considering that there might be a slab leak or expansive soils at the Marleys’ home. The grout testing did not show that there was any problem with the grout and there is no substantial evidence to show that there is a slab leak or expansive soils. Mr. Dimond’s Jobsite Inspection Notes show that he did not see any evidence of movement around the house. 23. Mr. Dryden was of the opinion that the Marleys’ dogs walked on the grout before it was properly set and he testified that his installer told him that the dogs were in the house soon after the last repair was completed. 24. The Marleys acknowledged that they had allowed the dogs in the house right after the repairs at issue were made, but soon after that, they left for three days during which time the dogs were not at the house. 25. Mr. Dimond testified that he had never seen a situation like this one and that he did not know what was causing the problems with the grout. Mr. Dimond agreed however, that dogs walking on uncured grout could cause the type of problems that he observed at the April 4, 2013 Jobsite Inspection.[2] 26. In his Jobsite Inspection Notes, Mr. Dimond wrote that it was important to note that the Marleys have two medium sized dogs, and that at least some of the areas with voids in the grout are areas that the dogs would have traveled across to reach their feeding area. 27. Ms. Marley testified that the Marleys have changed their position and are willing to allow Alliance to make the repairs, provided that the repairs are done properly. According to Ms. Marley, this will require all the grout to be removed and replaced. 28. Ms. Marley explained that the Marleys had been frustrated during the course of conduct between the parties, which is why they had been refusing to allow Alliance to conduct any repair work. That frustration was due, at least in part, to the Marleys’ belief that Alliance had tried to make the required repairs a number of times (including before the Registrar became involved) but was unable to properly do the work. 29. Mr. Dryden testified that Alliance was willing to have the work completed by a third party contractor, but he was concerned that the Marleys would never be satisfied. 30. Administrative notice is taken of Alliance’s prior License record as reflected on the Registrar’s public website on November 1, 2013.[3] Such prior License record reflects that there was one open or pending case and one case in which discipline was imposed. CONCLUSIONS OF LAW The Marleys have the burden of proof to show that Alliance has violated Ariz. Rev. Stat. § 32-1154(A) as alleged in the Citation and Complaint. Alliance bears the burden to prove any affirmative defenses. The standard of proof is that of the preponderance of the evidence. Ariz. Admin. Code § R2-19-119. A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). A contractor is subject to discipline for violation of any rule adopted by the Registrar. Ariz. Rev. Stat. § 32-1154(A)(3). The Registrar charged Alliance with violating Ariz. Admin. Code § R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with professional industry standards. Although the existing grout has voids, the evidence at hearing shows that the Marleys allowed their dogs to walk on the floor before the grout was cured. Mr. Dimond’s Jobsite Inspection Notes show that grout is missing in areas that the dogs would have had access to and his testimony was that dogs walking on tile with uncured grout could cause the problems he observed. The Marleys have not shown by a preponderance of evidence that the voids in the grout are because of a failure by Alliance to perform the repair work in a professional and workmanlike manner or that that Alliance did not complete the work in accordance with professional industry standards. Consequently, the Marleys have not shown that Alliance violated Ariz. Rev. Stat. § 32-1154(A)(3). A contractor is subject to discipline for failure to take appropriate corrective action without valid justification within a reasonable period of time after receiving a written directive from the Registrar. Ariz. Rev. Stat. § 32-1154(A)(23). Because the Marleys did not prove by a preponderance of the evidence that Alliance has violated the workmanship standards, there is no basis on which to conclude that Alliance did not comply with the Corrective Work Order. But even if it were to be found that Alliance did not comply with the Corrective Work Order, Alliance has a valid justification in that the Marleys refused to allow Alliance to make any additional repairs, despite Alliance’s willingness to do so. Consequently, the Marleys have not shown by a preponderance of the evidence that Alliance violated Ariz. Rev. Stat. § 32-1154(A)(23). Because the Marleys have not proven by a preponderance of the evidence that Alliance violated Ariz. Rev. Stat. § 32-1154(A), the Complaint in this matter should be dismissed. ORDER IT IS ORDERED that that the Complaint in Case No. 2012-2320 against Alliance Flooring Sales LLC’s License No. C-8.231911-R is dismissed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative hearings, then the effective date of the Order shall be 40 days from the date of that certification. Done this day, November 1, 2013.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Rcc014 Corrective Work Order1.rtf. [2] At hearing, Mr. Dimond also testified that he had heard that dogs could cause grout issues, but he had never seen it. Considering the rest of his testimony, it is clear that Mr. Dimond’s testimony on this point was in reference to cured grout. [3] The Registrar’s public website shows Alliance’s License number as 231911, not C-8.231911-R.

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