ALJDEC decisions subject to certification as final

2012A-2848-ROC · Registrar of Contractors · 2013-02-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 31, 2013 APPEARANCES: Complainant Sanford J Germaine appeared on his own behalf. Respondent PMG Masonry Inc appeared through Patrick Martinez, its Qualifying Party. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 31.189747-R to Respondent P M G Masonry Inc (“Respondent”). The Registrar received a Complaint against Respondent from Sanford J Germaine (“Complainant”) regarding a masonry project at 5110 North 45th Place, Phoenix, Arizona. After the Registrar assigned the Complaint to its inspector, Jeff Fleetham, for investigation, he performed a jobsite inspection. In the Corrective Work Order issued on July 2, 2012, Inspector Fleetham noted the following: a. Hairline cracks in the walls were within standards, but Respondent agreed to repair. b. Respondent did not obtain a permit for the fireplace. Respondent was instructed to provide written proof from the City of Phoenix that the wood burning fireplace complied with local building codes and ordinances. c. Saltillo tile was cracking around pool and patio and was not properly sealed. Respondent was instructed to correct by appropriate means. d. Coping/tiles around the swimming pool were falling off, missing, or incomplete. Respondent was instructed to correct by appropriate means e. Inspector Fleetham was unable to determine if stone tiles on pillars near the pool had been sealed at the time of inspection. No action was required by Respondent. Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(2); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32- 1154(10); 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. A hearing was held on January 31, 2013. Inspector Fleetham testified about the Registrar’s standards. Complainant submitted 18 exhibits, testified on his own behalf, and presented the testimony of Marsha Friel and Sherri Germaine. Respondent submitted two exhibits and presented the testimony of Patrick Martinez, its Qualifying Party. Hearing Evidence In June 2010, Complainant contracted with Respondent to complete tile and masonry work in his backyard. Complainant was put into contact with Respondent through Ms. Friel with Dreamscape Garden Design LLC. Ms. Friel provided Complainant with a list of potential contractors. Complainant met with the contractors, made the decision to hire Respondent, contracted directly with Respondent, and directly paid Respondent for the work completed. In January 2011, Respondent completed the job. Complainant immediately noticed problems with the tile work. Most notably, the dark brown color of the Saltillo tile Complainant selected and purchased was washed out, had splotches, and would not accept the color enhancer and sealant Complainant attempted to apply. As time passed, Complainant observed numerous cracks in the tiles. In August 2011, Complainant contacted Respondent with his concerns. Respondent indicated the tiles needed more time to settle before it would come out to fix the problems. Complainant had the tile work evaluated by Ralph Williamson with Ceramic Tile Institute of America, Inc. Mr. Williamson observed the entire tile installation lacked any movement joints. Mr. Williamson recommended that all the cracked tiles be removed and movement joints be installed every eight feet in both directions; that the tiles must be well bonded to the substrate; that when the cracked tiles were removed, a crack isolation membrane of at least two times the width of the cracked tile needed to be installed; and that when the new tile was installed, it needed to be in the same shade variation as the existing tile. Complainant forwarded a copy of Mr. Williamson’s report to Respondent. On July 18, 2012, Respondent returned to the jobsite and performed additional work. Respondent removed numerous cracked tiles and replaced with new tiles. The new tiles were the dark brown color Complainant originally selected and desired, but did not match the existing tile. To install movement joints, Respondent used a saw to cut lines through the tiles at various angles and filled the lines in with an elastomer. Inspector Fleetham testified that, based on his findings during the pre- hearing inspection: a. The hairline cracks were still within standards, but Respondent’s repairs were not similar to the area around them and were not proper. b. Respondent had obtained a permit for the fireplace and the fireplace complied with the City of Phoenix building code. c. There were still cracked tiles throughout the installation. Inspector Fleetham was “unfamiliar” with Respondent’s attempt to install movement joints. Inspector Fleetham concluded the repair was inappropriate. d. One tile in the coping was missing, but none of the parties could confirm if that tile was missing during the original inspection. According to Inspector Fleetham, Respondent had failed to comply with all the required items on the Corrective Work Order as of the pre-hearing inspection. Complainant testified at the hearing that he was most concerned with the tile and the movement joints that had been installed. Respondent testified that he installed the movement joints in accordance with the report he received from Complainant. Respondent also testified the issues with the color and splotching of the tiles was a result of Complainant’s failure to properly seal the tile after it was installed. 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. Respondent properly secured a permit for the fireplace and the fireplace was in accordance with City of Phoenix building code. Therefore, Complainant failed to establish that Respondent departed from or disregarded any plans, specifications, or building codes in violation of A.R.S. § 32-1154(A)(2) in its installation of the fireplace. 4. Complainant established that Respondent failed to properly correct the hairline cracks in the walls and correct the cracked tiles and therefore, violated industry standards and was not professional and workmanlike in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108. 5. Complainant did not establish that Respondent aided or abetted a licensed or unlicensed person to evade this chapter in violation of A.R.S. § 32-1154(10). 6. Complainant established 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 Order, the Registrar shall suspend Respondent P M G Inc’s License No. C-31.189747-R until it has performed in a professional and workmanlike manner the repairs that the Corrective Work Order directed it to perform. It is further recommended that if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is acceptable to the Registrar that it has performed in a professional and workmanlike manner the repairs that the Corrective Work Order directed it to perform, the Registrar should not suspend Respondent’s license but, instead, shall close Complainant Sanford J Germaine’s Complaint in Case No. 2012-2848. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 in certified funds to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Respondent 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 Respondent’s contractor’s license, effective on such 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 tendered. 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, February 20, 2013.

/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