ALJDEC decisions subject to certification as final

2012A-3186-ROC · Registrar of Contractors · 2013-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 15, 2013, at 8:00 a.m. APPEARANCES: Lynn Weikel (hereinafter “Complainant”) appeared on her own behalf. World Class Improvements and Lifestyles LLC (hereinafter “World”) appeared through its Qualifying Party, Kermit Otto Lennick. 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. World is the holder of License No. KB-2.249476-D issued by the Registrar of Contractors. 2. This is a residential matter where World installed travertine tile on Complainant’s concrete patio. 3. Complainant was dissatisfied with World’s workmanship and filed a formal Complaint against World with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Jeffrey Wills (hereinafter “Inspector Wills”), conducted an onsite inspection. Inspector Wills issued a written Corrective Work Order on July 27, 2012, directing World to perform designated corrective work at Complainant’s residence. 5. The Corrective Work Order provided, in pertinent part, as follows: 1. Mr. Lennick came to estimate my patio and told me it would cost $2,400.00 to finish the entire area in the patio with travertine. We went to pick out the travertine tiles from Home & Décor on Bell Rd, but apparently he bought the cheap ones from somewhere: Complainant showed the inspector an 18” sample of travertine that she stated she got from Home & Décor – not the Respondent. In the opinion of this inspector, the sample does not match what is installed. Complainant stated she got the sample from Home & Décor about 5 months ago, but work was done in October of 2010. Complainant believes the Respondent did not get the travertine that she picked out at Home & Décor. Respondent stated he did. This inspector is not able to determine exactly where the sample the Complainant has is from and exactly where the installed travertine came from. No action required by the contractor.

2. After six months the tiles started cracking all over. I called to tell him but he told me the earth moves and there is nothing he can do: The Complainant pointed out about 10-12 cracked back patio (uncovered) travertine tile. The Complainant also pointed out large pop-outs in one tile near or at the covered portion of the back patio. The cracks (width) in some of the tile measured at 1/16”. Complainant also pointed out several areas of grout separation between tiles. Complainant also pointed out 1 high tile (uncovered area – near pool cool deck). Per the Respondent, this tile is high due to the crack in the concrete underneath. Per both parties, the concrete slab in which the tile is installed on - is existing concrete. Per both parties and pointed out by both parties, the existing concrete slab was cracked at the time of tile installation. Per the Respondent this is why the tiles have cracked. Per the Respondent he did prep the cracked slab before he installed the tile. Per the Complainant, the Respondent did not prep the cracked area(s) of the concrete. Per both parties, there is nothing in writing stating or indicating that the concrete substrate is cracked before the installation of the travertine. It is the opinion of this inspector that due to the inadequate or defective substrate, cracked tile, grout or tile separation and high tiles are the result. Contractor to correct by appropriate means the following: cracked tile, grout and tile separation, high tiles (lippage) and pop-outs.

3. I asked several guys to look at the tiles and they all told me Kermit did not seal the cracks underneath before laying the tiles, that is why the tiles cracked: This is per the Complainant as listed within the complaint.

4. He put in the contract guarantee for 1 year but within a year he did not want to do anything and now the tiles cracked more: Contractor to correct by appropriate means.

5. At first when he estimated, he told me $2,400.00. After he finished, he slapped [me] with the bill for $600.00 something or he will put a lien in my house if I didn’t pay him – How can you estimate something and at the end of the work, tell the customer to pay more: Per the Respondent, the tile was originally . . . to be installed about halfway to the block fence extending out from the covered portion of the back patio. Per the Respondent, the Complainant changed her mind and wanted to extend about another 12’ toward the block fence. Per the Respondent he stated he would do this extra work at a cost of $600.00. Per the Respondent the Complainant accepted this offer and he did the work. Per the Complainant, she disagrees with this statement given by the Respondent. This inspector is not able to determine exactly how the extra $600.00 came into play. Per the invoice dated 10/11/10, the total amount due is/was $3,095.17 which includes the extra $600.00. No action required by the contractor at this time.

6. He refuses to fix the cracks: Contractor to correct by appropriate means. Refer to item #2 above.

7. He didn’t buy the tile at the place where I picked it out. He bought cheap tiles instead and lousy labor: This is per the Complainant as listed within the complaint. Contractor to correct by appropriate means as necessary.

8. Inspector Wills testified that he conducted a pre-hearing inspection on February 14, 2013. Inspector Wills stated that World had failed to perform corrective action on all of the items listed in the Corrective Work Order. Inspector Wills testified that the repairs that had been performed by World had failed. Inspector Wills opined that World had failed to comply with the terms of the Corrective Work Order.[1] 9. Inspector Wills’ testimony is found to be credible. 10. Complainant testified that she pointed out the cracks in her existing concrete patio before World installed any tile on her patio. Complainant stated that World did not inform her of any potential problems that could occur with the new tile installation due to the cracked concrete. Complainant testified that she notified World of the problems with the new tile installation and that World refused to take any corrective action. Complainant stated that the tile work performed by World was unsatisfactory. Complainant testified that the cracks in the travertine tile on her patio have increased. Complainant stated that World’s corrective work on her patio failed. Complainant acknowledged that she had met World’s Qualifying Party, Kermit Otto Lennick (hereinafter “Mr. Lennick”), through an internet dating service.[2] 11. Complainant’s fiancé, Volkmar Weissig (hereinafter “Mr. Weissig”), testified that the travertine tile installed on Complainant’s patio displays extensive cracking. Mr. Weissig stated that the travertine tile on Complainant’s patio was a “big mess” because of the tile cracking.[3]

12. Complainant testified that her construction agreement with World was a business contract, not a personal agreement with Mr. Lennick. Complainant stated that the parties’ construction agreement was for her to pay World on a “time-and-material” basis. Complainant testified that she paid World $3,095.17 for the travertine tile installation on her patio. Complainant testified that the travertine tile installed by World was cheaper and of a lower quality than the travertine tile that she had selected for the new tile installation.[4] 13. Mr. Lennick testified that he was invited to Complainant’s residence on September 28, 2010, as part of an internet dating meeting. Mr. Lennick stated that when he informed Complainant that he was a contractor, she requested that Mr. Lennick provide a bid for covering her concrete patio with travertine tile. Mr. Lennick testified that he informed Complainant that there would be no guarantee that the new travertine tile installation would not crack due to the cracked condition of the concrete patio. Mr. Lennick stated he, personally, agreed to oversee the installation of the travertine tile on Complainant’s patio. Mr. Lennick testified that World was not involved in the travertine tile installation at Complainant’s residence. Mr. Lennick stated that “it was inevitable” that the new travertine tile installation would crack due to the poor condition of the concrete patio. Mr. Lennick stated that he prepared the parties’ written construction agreement because Complainant requested a written document for tax purposes. Mr. Lennick testified that the overseeing of the travertine tile installation on Complainant’s patio was his personal gift to Complainant. Mr. Lennick stated that he should be reimbursed by Complainant for his costs for having corrective work performed on the travertine tile covering on Complainant’s patio.[5] 14. Administrative notice is taken of World’s prior license record as reflected on the Registrar of Contractors’ public website on February 28, 2013. Such prior license record reflects that License No. KB-2.249476-D of World was suspended for non-renewal on October 1, 2012, and that World was not able to contract with this license. 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. Complainant paid World the sum of $3,095.17 for the travertine tile installation on her concrete patio. The travertine tile installation installed by World on Complainant’s concrete patio displays unacceptable cracking and has failed. World is fully responsible for the correction of failed travertine tile installation. This Tribunal concludes that World violated the charged provision of A.R.S. § 32-1154(A)(3),[6] namely, A.A.C. R4-9-108.[7] 4. There was no credible evidence that World failed to complete the installation of Complainant’s travertine tile for the price stated in the parties’ construction agreement. This Tribunal concludes that Complainant failed to meet her burden of proving that World violated the charged provision of A.R.S. § 32-1154(A)(9).[8] 5. The parties’ written construction agreement, prepared by World, failed to advise Complainant that she has the right to file a written complaint with the Registrar of Contractors for an alleged violation of A.R.S. § 32- 1154. This Tribunal concludes that World violated the charged provision of A.R.S. § 32-1154(A)(13),[9] namely, A.R.S. § 32-1158.[10] 6. World failed to comply with the terms of the Corrective Work Order. This Tribunal concludes that World violated the charged provision of A.R.S. § 32-1154(A)(23).[11] RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order, License No. KB-2.249476-D of World shall be revoked. It is further recommended, in addition to the above-provided penalties, if any, that World pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by World 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 World’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with World, 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, March 1, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 2/15/13 Hearing Record (hereinafter “H.R.”) at 16:09-44:04. [2] H.R. at 44:42-52:29. [3] H.R. at 53:16-55:30. [4] H.R. at 55:40-1:21:47. [5] H.R. at 1:21:48-1:31:37. [6] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [7] A.A.C. R4-9-108 provides, in pertinent part, as follows:

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)(9) includes among the grounds for disciplinary action against a contractor’s license, failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract. [9] A.R.S. § 32-1154(A)(13) includes among the grounds for disciplinary action against a contractor’s license, failure in any material respect to comply with this chapter. [10] A.R.S. § 32-1158(B) provides, in pertinent part, as follows:

From and after December 31, 2007, any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365. C. At the time of signing a contract the owner shall be provided a legible copy of all documents signed and a written and signed receipt for and in the true amount of any cash paid to the contractor by the owner.

[11] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license, 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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