ALJDEC decisions subject to certification as final

2012A-5340-ROC · Registrar of Contractors · 2013-05-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 1, 2013, at 8:00 a.m. APPEARANCES: Regina Rhine (hereinafter “Complainant”) appeared on her own behalf. Steven R. Bartek Tile LLC (hereinafter “Bartek”) appeared through its attorney, Holly E. Wertz, Esq., The Law Offices of Holly E. Wertz, LLC. 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 Bartek is the holder of License No. C-48.204429-R issued by the Registrar of Contractors. This is a residential matter where Bartek performed tile work, including sealing and crack repair, at Complainant’s residence. Complainant was dissatisfied with Bartek’s workmanship and notified Bartek of her dissatisfaction. The parties were unable to resolve their differences and requested a Building Confidence inspection. Pursuant to the parties request, an assigned Registrar Inspector, Frank Grochocki (hereinafter “Inspector Grochocki”), conducted an onsite inspection at Complainant’s residence on or about August 30, 2012. Inspector Grochocki determined that Bartek’s tile work at Complainant’s residence was within applicable workmanship standards and that no corrective action was required. Complainant disagreed with Inspector Grochocki’s determination and filed a formal Complaint against Bartek with the Registrar of Contractors. Pursuant to the filing of the formal Complaint, an assigned Registrar Inspector, Richard Allen (hereinafter “Inspector Allen”), conducted another onsite inspection. On November 19, 2012, Inspector Allen issued a letter to the parties informing them that no citation would be issued against Bartek’s contractor’s license based upon the following: 1. Chipped tiles laid in Bath 1, Bedroom 2, Kitchen, and flawed bubble tiles laid in great room-Reference paragraph 1, page 42, ceramic and natural stone floor tile.

The jobsite inspection found some minor flaws that appear to be acceptable. I cannot determine who or what caused the minor flaws. The contractor’s responsibility on all manufactured surfaces is valid only if the damaged surface is indicated to the contractor or contractor’s representative within 10 days after move-in or (in case of a remodel) after installation.[1] It should be noted that the contractor did not provide the tile. No action required.

2. #7, page 43-Excessive grout discoloration is unacceptable. Grout discoloration is in great room, master bedroom, & closet, approx. 50% of the house. Attached material technical bulletin 010309-tb.

The jobsite inspection found some lighter colored grout in these areas. I cannot determine who or what caused the lighter colored grout. No action required.

3. Grout has not been sealed per contract. Contract states Miracle 511, contractor decided to use grout sealer additive, then claims he sprayed bathrooms & part of kitchen. Documents attached.

The jobsite inspection found that some of the grout beaded-up when drops of water were applied and some of the grout did not hold a bead but soaked into the grout after a few seconds. This indicates that there is “some” sealer present. The tile floor installation has been completed for approximately 9 months. I cannot determine if this grout was sealed per contract. No action required.

4. Painting edge of baseboard was not completed due to discolored grout and could not paint until grout issue is solved.

The jobsite inspection found the top edges of the tile bases unpainted. Apparently, the parties had an agreement to paint the top edge and the [C]omplainant wanted the contractor to paint the top edge after the grout issues were resolved. This contractor is to paint the top edges of the tile base after the [C]omplainant agrees to allow that work to be done.

5. Contractor accidentally charged me twice for bathroom baseboard because it was in contract for bathroom, then when I decided to put base board in the whole house, he added it in again.

During the jobsite inspection, I was unable to determine if the [C]omplainant was charged twice for the bathroom baseboard because the estimates were not “broken down” in detail to show the price(s) for the rest of the baseboard. No action required.

Complainant disagreed with Inspector Allen’s determinations and requested an administrative hearing. Inspector Allen testified that he performed a prehearing inspection on April 30, 2013. Inspector Allen stated that the tile “looked pretty much the same.” Inspector Allen testified that the tile and grout looked good, except for the small areas where Complainant had performed saturation tests on the grout. Inspector Allen testified that he conducted grout seal testing on various spots throughout the tile floor. Inspector Allen stated that the testing established that the grout had been sealed at one time. Inspector Allen testified that he observed that a few of the floor tiles displayed minor flaws. Inspector Allen stated that the flaws could have been caused by someone after the tile was installed or the flaws could have been manufacturing flaws. Inspector Allen testified that he could not determine who or what caused the flaws in the tile. Inspector Allen stated that he had “set quite a bit of tile.” Inspector Allen acknowledged that he was not a tile expert. Inspector Allen’s testimony is found to be credible. Dallas DeWitt Caldwell (hereinafter “Mr. Caldwell”) testified that he is a tile expert.[2] Mr. Caldwell stated that he conducted an inspection of the tile work in Complainant’s residence on September 22, 2012. Mr. Caldwell testified that he observed “grout-haze” on portions of the floor tile. Mr. Caldwell testified that he performed a grout seal test on the tile floor. Mr. Caldwell stated that he found the grout sealing to be in poor condition. Mr. Caldwell testified that he observed approximately seven tiles with flaws. Mr. Caldwell stated that the floor tiles could have been damaged during installation or the flaws could have been the result of the manufacturer’s errors. Mr. Caldwell testified that he did not disagree with Inspector Allen’s testimony. Steven Richard Bartek (hereinafter “Mr. Bartek”) testified that Complainant did not inform Bartek of any flaws in the tile installed in Complainant’s residence within 10 days of installation.[3] Mr. Bartek opined that the flaws in the tiles were caused by Complainant. Mr. Bartek testified that the discoloration on portions of Complainant’s tile floor was caused by “something being spilled on them.” Mr. Bartek stated that the removal of the discoloration was a homeowner maintenance matter. Mr. Bartek denied that Bartek had agreed to paint the exposed edge of Complainant’s tile. Mr. Bartek testified that Bartek is not a licensed painting contractor and that Bartek would not enter into an agreement to perform work that was beyond the scope of its contractor’s license. Mr. Bartek acknowledged that the parties’ construction agreement provided that Bartek was to apply one coat of Miracle 511 grout sealer on Complainant’s tile.[4] Mr. Bartek testified that Bartek utilized Miracle Grout Shield rather than Miracle 511 Grout Sealer. Mr. Bartek stated that Miracle Grout Shield performs the same function as Miracle 511 Grout Sealer. Mr. Bartek testified that Miracle Grout Shield is a better, more expensive product than Miracle 511 Grout Sealer. Mr. Bartek stated that the use of a grout shield does not eliminate the requirement for proper homeowner maintenance. Complainant testified that the parties’ construction agreement specifically provided for the application of Miracle 511 Grout Sealer. Complainant stated that she did not agree that Bartek could use Miracle Grout Shield instead of Miracle 511 Grout Sealer. Complainant testified that she specified that she wanted the grout sealed before the construction agreement was entered into. Complainant acknowledged that she did not specify that Miracle 511 Grout Sealer be used as the grout sealer. Complainant testified that large areas of the tile floor display discoloration that she identified as grout-haze. Complainant denied that she had spilled anything on the tile floor that could have caused the tile discoloration. Complainant stated that the tile discoloration extended to areas of the tile floor that she could not clean because the discolored floor tile was under heavy furniture. Complainant testified that Bartek had agreed to paint the “cut edges” on the tile in her residence. Complainant acknowledged that there was nothing in the parties’ construction agreement that required Bartek to perform any painting work at her residence. Complainant testified that she had observed that there are five tiles with flaws, three tiles with bubbles, and three chipped tiles in her residence. Complainant stated that she notified Bartek orally of the flaws in the tiles within 10 days of its installation. Complainant acknowledged that she did not provide Bartek with written notification of the flaws in the tiles within the 10-day period Complainant testified that Miracle Grout Shield is stain resistant but not a grout sealer. Complainant stated that she believed that the discoloration of her floor tiles and the deterioration of the grout in the tile floor were caused by Bartek’s failure to properly install the grout and the grout sealer. Complainant acknowledged that she was not a tile expert. The Miracle 511 Impregnator product data sheet provided, in relevant part, as follows: This product is formulated for sealing concrete and masonry to provide resistance against water, alkalis, acids, ultraviolet light, staining, salt-ion formulation designed for the protection of all medium to dense porous tile, stone and grout surfaces.[5]

The Grout Shield product data sheet provided, in relevant part, as follows: Features:

Protects Grout from Staining. Mixes with Grout in Place of Water. year warranty.

Description:

Grout Shield is a specialty sealer additive that mixes with cement-based grout instead of water to provide a stain resistant grout installation without any additional sealing.[6]

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. The credible evidence of record was insufficient and failed to establish that Complainant notified Bartek of any flaws in the tiles in her residence within 10 days of the date Bartek installed the tiles. 4. There was no credible evidence that Bartek agreed to paint the cut edges of the tiles in Complainant’s residence. 5. The credible evidence of record failed to support a finding that Bartek was responsible for the discoloration present on portions of Complainant’s tile floor. 6. Bartek utilized Miracle Grout Shield to seal Complainant’s tile rather than Miracle 511 Impregnator. Credible testimony and evidence establish that Miracle Grout Shield is more expensive than Miracle 511 Impregnator, serves the same purpose, and is equal to or better than Miracle 511 Impregnator for grout sealing purposes. 7. This Tribunal concludes that Complainant failed to meet her burden of proving, by a preponderance of the evidence, that Bartek violated the charged provision of A.R.S. § 32-1154(A)(3),[7] namely A.A.C. R4-9- 108.[8] RECOMMENDed order In view of the foregoing, it is recommended that this Citation, together with the Complaint that it is based upon, be dismissed. 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, May 15, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] The Workmanship Standards for License Contractors (June 2009) provides, in relevant part, as follows:

Contractor’s responsibility on all manufactured surfaces is valid only if the damaged surface is indicated to the contractor or contractor’s representative within 10 days after move-in.

(Footnote added.) [2] Dallas DeWitt Caldwell is the Qualifying Party for License No. K- 5.240921-D of the D M Caldwell Corporation dba Environmental Management Custom Flooring. [3] Steven Richard Bartek is the Qualifying Party for License No. C- 48.204429-R of Respondent Bartek Tile LLC. [4] See Exhibit R-5 (12/19/2011 Estimate # 46). [5] See Exhibit C-2 (Product data sheet for 511 Impregnator produced by Miracle Sealants Company). [6] See Exhibit R-1(Product data sheet for Grout Shield produced by Miracle Sealants Company). [7] 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.

[8] 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.

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