ALJDEC decisions subject to certification as final

2012A-3407-ROC · Registrar of Contractors · 2013-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 10, 2013, at 8:15 a.m. APPEARANCES: Complainant Palmer Koosmann appeared on his own behalf; Respondent Richard Joseph Cruz dba Ricks Zona Tile appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On or about November 19, 2004, the Arizona Registrar of Contractors (“the Registrar”) issued License No. C-48.201997-R to Richard Joseph Cruz dba Ricks Zona Tile (“Respondent”). On or about July 12, 2012, the Registrar received a Complaint from Palmer Koosmann (“Complainant”) that the grout was coming out from the expansion joints between the tiles that Respondent had installed on an outdoor patio at Complainant’s house at 6676 East Brombil Street, Prescott Valley, Arizona. According to the Complaint, Respondent completed the project in “summer 2009,” and Respondent had last performed repairs on May 14, 2011. The Registrar assigned the Complaint to Inspector Cliff Frandsen for investigation. On July 26, 2012, Inspector Frandsen performed a jobsite inspection. On August 6, 2012, Inspector Frandsen issued a Corrective Work Order (“CWO”) that provided in relevant part as follows: *License number 201997 issued to Ricks Zona Tile was suspended for Lack of Bond on 3/21/11 and cannot do or sub contract the following corrective work until the suspension is lifted.

The contractor shall take necessary and proper action to properly repair the grout joints on the exterior tile patio that are cracking and coming apart.

Complainant subsequently requested a hearing because Respondent had done nothing to comply with the CWO. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, A.R.S. § 32-1154(A)(18), and A.R.S. § 32-1154(A)(23). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations and affirmatively alleging that he had been to the site three times to repair the expansion joints, that he was no longer in business, and that the expansion joints were now a homeowner maintenance item. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held via videoconference on January 10, 2013. Inspector Frandsen testified, Complainant testified and submitted nine exhibits, and Respondent testified. Additional Evidence Inspector Frandsen testified that at the July 26, 2012 jobsite inspection, he thought that the grout had failed in three expansion joints in the tile on Complainant’s patio. Inspector Frandsen testified that when he performed the prehearing jobsite inspection, he realized that Respondent had installed a sanded caulk product, not grout, in the expansion joints for better flexibility because the tile was on a patio outdoors, where it would be subject to temperature variations due to the freeze-thaw cycle in northern Arizona. Inspector Frandsen testified that the CWO should be rescinded based on two sections of the Registrar’s publication, Workmanship Standards for Licensed Contractors (“Standards”).[1] First, the Registrar’s Standards’ General Statements provide that homeowner maintenance items include interior and exterior caulking after the first year of occupancy. Second, the Registrar’s Standards for Ceramic and Natural Stone Floor Tile provided that contractors should repair cracks of more than 1/16” at joints with dissimilar materials one time within the first year. Respondent testified that he initially became involved in Complainant’s project as a consultant because an outdoor tile floor that Respondent’s brother-in-law had installed on Complainant’s patio exhibited unacceptable efflorescence. Although Respondent recommended a product with which he was familiar, Complainant selected an underlayment called Schluter-Ditra to go over the concrete patio. Respondent testified that he had used the thinset, sanded caulk, and grout that the manufacturer of the Schluter- Ditra underlayment recommended for an application in Prescott Valley. Complainant testified that he did not believe that Respondent used the correct thinset or grout on the job and that Respondent’s repairs may have damaged the Schluter-Ditra underlayment. Although Complainant attempted testify that certain tiles sounded hollow and poorly adhered to the underlayment, Inspector Frandsen noted that the only workmanship item on the Complaint that Complainant filed with the Registrar concerned the cracks in the expansion joints. Complainant submitted the parties’ May 5, 2009 contract. Complainant testified that Respondent last performed repairs to the project in May 2011. Complainant testified that he did not know that Respondent’s contractor’s license was administratively suspended when he filed the Complaint with the Registrar. Respondent testified that he could not remember when he last performed repairs on the project. Respondent testified that he had repaired the expansion joints twice, but that the third time he went to Complainant’s house in response to Complainant’s request for further repairs, he could not perform any work because he was no longer in business. Inspector Frandsen testified that Respondent did not perform any work to comply with the CWO. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on January 25, 2013. Such prior License record reflects that Respondent’s License No. C-48.201997-R was suspended for lack of bond between December 4, 2008, and December 16, 2008, suspended for non-renewal between December 1, 2010, and December 30, 2010, and suspended for lack of bond on March 21, 2011. As of January 25, 2013, Respondent’s license remained administratively suspended. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[2] The administratively status of Respondent’s license does not preclude Complainant from pursuing its administrative remedy nor preclude the Registrar from conducting this disciplinary proceeding.[3] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[4] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[5] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] Complainant did not establish that Respondent’s installation of sanded caulk on the expansion joints of the tile on Complainant’s outdoor patio was unprofessional, not workmanlike, or contrary to the manufacturer’s specifications. Therefore, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(3) (namely A.A.C. R4-9-108).[7] Inspector Frandsen testified at the hearing that he should not have issued the CWO because neither of the Registrar’s Standards that applied to the project required Respondent to perform any further repairs. Although Respondent failed to perform any repairs to comply with the CWO, Inspector Frandsen’s acknowledged error in issuing the CWO provides a legal excuse for Respondent’s failure. Therefore, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(23).[8] Complainant established that Respondent attempted to repair the sanded caulk in the expansion joints of the tile on Complainant’s patio after its license was administratively suspended.[9] Although Complainant established that Respondent violated A.R.S. § 32-1154(A)(18),[10] the fact that Respondent had no legal duty to repair the expansion joints is a substantial factor in mitigation of any penalty that should be imposed. RECOMMENDED ORDER Based on the foregoing, as a result of the proven violation of A.R.S. § 32-1154(A)(18), it is recommended that the Registrar require Respondent to pay the sum of $100.00 as a civil penalty pursuant to A.R.S. § 32- 1154(E). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final Order, the Registrar permanently revoke Respondent’s License No. C-48.201997-R, effective on such deadline date. It is further recommended that if Respondent pays the full amount of the civil penalty on or before the effective date of the Registrar’s Order, Complainant Palmer Koosmann’s Complaint in Case No. 2012-3407 be closed. 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 25, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Inspector Frandsen referred to the editions of the Standards that were published in February 2009, and June 2009. [2] See A.R.S. §§ 32-1151 to 32-1169. [3] See A.R.S. § 32-1154(C), which provides that “[t]he expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . . .” [4] 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). [5] See A.A.C. R2-19-119(B)(2). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] This statutory subsection 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.” The rule cited was A.A.C. R4-9-108, which 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.” [8] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.” [9] It is unlawful for anyone without a contractor’s license in good standing to engage in contracting. See A.R.S. § 32-1151. “Contractor” is defined as anyone who “does himself or by or through others” performs construction. A.R.S. § 32-1101(A)(3). [10] This statutory subsection includes among the grounds for suspension, revocation, and other disciplinary action against a contractor’s license, “[c]ontracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.”

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