ALJDEC decisions subject to certification as final

2012A-2562-ROC · Registrar of Contractors · 2013-01-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 28, 2012, at 8:00 a.m. APPEARANCES: Complainant Ramin Salari appeared on his own behalf; Respondent James Robert Carter dba Jim Carter’s Tile appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On or about April 27, 1994, the Arizona Registrar of Contractors (“the Registrar”) issued License No. C48R.101981-R for residential swimming pool tile to James Robert Carter dba: Jim Carter S Tile (“Respondent”). 2. Ramin Salari (“Complainant”) develops high- end, luxury homes in Arizona and Nevada. Complainant owns a house located at 5326 East Sanna Street in Paradise Valley, Arizona that is approximately ten years old. The house has a large resort-style fountain on the grounds. 3. Complainant testified that in 2005, the glass tiles on the fountain started coming off. Complainant testified that in 2006, he paid another tile contractor approximately $5,000.00 to replace the glass tiles on the fountain with ceramic tiles. 4. Complainant testified that in late 2007, the ceramic tiles started popping off. In August 2009, Complainant paid Respondent $4,914.00 to remove the tile on the outside of the fountain and to retile the outside of the fountain. Respondent completed the job in September 2009. 5. Complainant testified that in April 2011, after the tiles started popping off the fountain again, he filed a complaint against Respondent with the Registrar. The Registrar designated Complainant’s first complaint against Respondent as Case No. 2011-1016. 6. Case No. 2011-1016 was assigned to the Registrar’s inspector, Scott Deering, for investigation. Inspector Deering performed a jobsite inspection and on March 11, 2011, issued a Corrective Work Order in Case No. 2011-1016 that required Respondent to repair the tile. After Respondent removed and replaced some of the tile, the Registrar closed Case No. 2011-1016. 7. Complainant testified that Respondent just “put a band-aid” on its deficient workmanship and that it should have removed and replaced all of the tiles on the outside of the fountain. 8. Complainant testified that in May 2012, the tiles again started delaminating from the fountain. On or about May 16, 2012, Complainant filed a second complaint against Respondent with the Registrar. The Registrar designated Complainant’s second complaint against Respondent as Case No. 2012-2562 and assigned it to Inspector Deering for investigation. 9. Inspector Deering performed a jobsite inspection in Case No. 2012-2562 on June 7, 2012. Respondent attended the jobsite inspection. Although Complainant did not attend the jobsite inspection, he was represented by Jeremy Anderson, an employee of Richard Fisch, the general contractor who was performing other work on Complainant’s house. 10. On June 19, 2012, Inspector Deering sent a letter to the parties in Case No. 2012-2562, informing them as follows: After investigation, the ROC has determined that:

At the time of the jobsite inspection it appeared that the fountain structure now has structural cracks and movement causing the tile to loosen and break the bond in areas. The Contractor was not responsible for the fountain structural components.

Based on the above, a citation will not be issued against the contractor at this time. However, you may request in writing, a further review of your complaint. If you have additional information to support your complaint, you should submit it with your request for review. After such review, a determination will be made on whether a citation should be issued.

11. Complainant requested a hearing in Case No. 2012-2562. 12. The Registrar issued a Citation and Complaint against Respondent charging a possible violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. 13. Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation and affirmatively alleging that movement in the underlying fountain structure was causing the tile to pop off from the fountain. 14. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 15. A hearing was held on December 28, 2012. Inspector Deering testified. Complainant testified, submitted numerous photographs of the fountain, and presented Mr. Fisch’s telephonic testimony. Respondent testified and submitted his own photographs of the fountain. Additional Hearing Evidence 16. Inspector Deering testified that at the June 7, 2012 jobsite inspection in Case No. 2012- 2562, the tile was coming loose in locations that were similar to what he had seen in Case No. 2011-1016. 17. Inspector Deering testified that at the June 7, 2012 jobsite inspection, he saw vertical cracks on the south and south/southeast side of the lower basin of the fountain that he had not seen at his jobsite inspection in Case No. 2011-1016. Inspector Deering testified that although there was one cracked tile on the south/ southeast side of the lower basin, most of the tile was popping off the west/southwest side of the lower basin. 18. Inspector Deering testified that the vertical cracks indicated that movement of the underlying structure was causing the tile to become loose and to pop off the other side of the lower basin of the fountain. Inspector Deering testified that because Respondent had not constructed the underlying structure, he was not responsible for the tile that was popping off due to the movement of the underlying structure. 19. Inspector Deering testified that he believed that cracks in the underlying structure had telegraphed through the tile and grout, but that because the tile and grout covered the structure, he could not definitively state that the underlying structure was cracked. Inspector Deering testified that although some of the parties’ photographs showed the cracks that he saw at the jobsite inspection in Case No. 2012-2562, none of the photographs showed the surface of the underlying structure. 20. Inspector Deering testified that the Registrar’s policies do not allow him to remove tile and grout to expose the underlying structure at the jobsite inspection. Inspector Deering testified that at the jobsite inspection in Case No. 2012-2562, he mentioned that he was not able to see the underlying structure and that it might be beneficial to expose the underlying structure to see if it showed damage that could be attributed to movement. 21. Complainant testified that the underlying structure of the fountain was constructed in a monolithic shotcrete pour that gave the structure a high structural integrity. Complainant testified that the water level in the fountain did not indicate movement. Complainant pointed out that the tiles in the interior of the fountain, which Respondent did not replace, were not cracking or popping off. 22. Mr. Fisch testified that he has been a contractor for 20 years and that the name of his company is Mountain Shadows Design Build LLC. 23. Administrative notice is taken of the Registrar’s public website. The website shows that on August 22, 2012, License No. B.280530- R was issued to Mountain Shadows Design Build LLC at 5657 North Invergordon Road, Paradise Valley, Arizona 85253-5213. The only person listed on License No. B.280530-R is Jeffrey John Parr. 24. The Registrar’s public website also shows that License No. B.099022-R was issued to Mountain Shadows Custom Homes LC at the same address as Mountain Shadows Design Build LLC. Mr. Fisch is listed as the qualifying party and member on License No. B.099022-R. According to the website, License No. B.099022- R was revoked on January 20, 2012, and June 24, 2011. 25. Mr. Fisch testified that his employee who attended the June 7, 2012 jobsite inspection, Mr. Anderson, is experienced in pool construction. Mr. Fisch testified that if Mr. Deering had mentioned exposing the underlying structure of the fountain to ascertain movement, Mr. Anderson would have reported it to him. 26. Mr. Fisch testified that the tile on the fountain was delaminating because it did not bond to the substrate due to a problem with the thinset that Respondent used. Mr. Fisch testified that he did not see any evidence of movement in the fountain. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.[2] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] The tile has delaminated from the bottom basin of the fountain at least three times in the past ten years. Inspector Deering’s testimony that he saw evidence of movement in the underlying structure was credible. Mr. Fisch’s testimony was not as credible because he is dependant on Complainant for contracting business, Mr. Fisch’s License No. B.099022-R was revoked, and he appears to be using License No. B.280530-R to evade the Registrar’s requirements. Although the tile that Respondent installed on Complainant’s fountain is delaminating, Respondent established that the delamination is due to movement of the underlying structure. Because Respondent did not construct and is not responsible for the structure, Complainant did not establish that Respondent’s replacement of the tile was unprofessional or not workmanlike, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108.[5] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, the Registrar dismiss Complainant Ramin Salari’s complaint in Case No. 2012-2562 against Respondent James Robert Carter dba: Jim Carter S Tile’s License No. C48R.101981-R. 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, January 16, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 32-1151 to A.R.S. § 32-1169. [2] 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). [3] See A.A.C. R2-19-119(B)(2). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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