ALJDEC decisions subject to certification as final

2014A-3075-ROC · Registrar of Contractors · 2015-10-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 5, 2015 APPEARANCES: Allan and Sue Ellen Erickson (Complainants or the Eriksons) appeared on their own behalf. Nathan David Darnell, Jr., a sole proprietor, doing business as D W D Construction represented his own interests. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors. Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. Complainants Allan and Sue Ellen Erickson are the owners/occupants of a residence located at 5707 East 32nd Street in Yuma. Arizona. 2. Respondent Nathan David Darnell, Jr., a sole proprietor dba D W D Construction, holds Arizona Contractor’s License No. KB- 1.248137-D. 3. On July 30, 2014, Complainants filed a complaint with the Registrar of Contractors alleging that they had entered into a contract with Respondent on April 8, 2014, to perform tile and backsplash work along with installing granite countertops in the kitchen. The complaint alleged that work began on May 21, 2014, and that shortly thereafter Complainants began to notice problems including: (1) improperly cut and recut granite; (2) cracking grout; (3) grout of various widths throughout the floor; (4) sandy floor texture; and (5) uneven tile. 4. In response to the complaint, the Registrar of Contractors assigned investigator Cort Bacon to investigate these allegations. Bacon testified that he arranged a time to perform an inspection and notified Complainants and Respondent of the time and place on the inspection. Both Respondent and Complainants were present at that inspection. Bacon indicated that at the time of an inspection he substantiated three of Complainants’ allegations regarding the condition of the granite joint by the kitchen cabinet, tile at uneven heights beyond the allowable lippage of 1/32nd of an inch, and irregular grout by the kitchen cabinet, but could not substantiate the other complaint items. Bacon noted that numerous spots had lippage of 1/16th of an inch would could pose a tripping hazard in high traffic areas. 5. On September 2, 2014, Bacon sent Respondent a Directive from the Registrar of Contractors. The Directive stated in pertinent part that: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. As to the Complainant’s allegation of, “Grout of various widths all over…” I find one area [that] exceed[s] that Workmanship standards for Arizona Contractors, specifically the floor tile to the left of the east cabinet. Workmanship standards do not allow for “Missing or irregular grout”. The contractor should make necessary repairs.

I do not find that an acceptable repair to the grout at the front door is expected, given the irregular nature of the threshold. The grout joint at the front door, while wide, is smooth and uniform (not irregular or damaged) Therefore, I do not believe a repair at the front door is warranted, nor do I feel that grout on the wall tile in the kitchen is outside expected workmanship standards.

2. As to the Complainant’s allegation of floor tile being of differing height. The Arizona Workmanship Standards for Contractors does not allow for uneven tile. It does allow for 1/32” of “lippage” (unevenness) of tile, if the tile was natural stone, which is not the case in this matter. The worst spot indicated at the jobsite measured 2/32” or 1/16”. The contractor shall repair any tiles that are outside the 1/32” standard.

3. As to the Complainant’s allegation of a poor granite joint at the kitchen sink, the contractor should fill and seal the granite joint accordingly.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

6. Darnell returned to Complainants’ residence and attempted repairs. In particular in the granite join was sealed in the kitchen, the grouting near the kitchen was redone and some tiles were reinstalled. At some point, Respondent reported that his corrective work was complete. 7. Bacon testified that he performed a compliance inspection at Complainants’ residence. He noted that Respondent was not invited to the follow-up inspection. He testified that in June 2015, he found that while the granite joint had been sealed, the color of the granite did not match and continued to fall below the minimum workmanship standards of the Registrar. Bacon indicated that he inspected the condition of the floor and found uneven tiles had not been addressed and believed the grout line problem by the kitchen cabinet had not been corrected. At that point, Bacon forwarded the file to the Registrar of Contractors Legal Department for further processing and disposition. 8. Darnell testified that he was not disputing that the tile work and grouting work fell below the Registrar’s minimum workmanship standards before he attempted repairs. He also agreed that the color of the sealed granite joint did not match. Darnell maintained that he had remedied the grout line problem by the kitchen cabinet. 9. On May 14, 2015, the Registrar of Contractors issued Respondent a Citation for Alleged Violation of Rule 4-9-108. That Citation contained only one charge, in particular: “A violation of Rule 4- 9-108, titled ‘Minimum Construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).” The citation did not cite Respondent for failure to take corrective action. 10. Pictures taken by Complainants in September 2015 demonstrate that the workmanship problems detailed above still exist. APPLICABLE LAW The CITATION issued by the Registrar of Contractors charged Respondent with a possible violation of A.R.S. § 32-1154(A)(3) (specifically A.A.C. R4-9-108, the workmanship rule). That statutory section requires that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar. A.A.C. R4-9-108 is named as the rule violation charged pursuant to A.R.S. § 32-1154(A)(3). That rule provides that all work shall be done in a professional and workmanlike manner, and in accordance with any applicable building codes and professional industry standards. CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainants must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990). 3. Undisputed credible testimony established that when Respondent installed the granite joint in Complainants’ home, he did so in a manner that failed to seal. Likewise, the evidence showed that Respondent installed tile unevenly and in excess of the 1/32nd of an inch lippage permitted by the Registrar. Finally, Complainants proved that the grout line by their kitchen cabinet was irregular. 4. Complainants established Respondent’s work installing the unsealed granite joint, uneven tile, and an irregular grout line near the kitchen cabinet and an exterior door was not done in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[1] RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order entered in this matter, Respondent's Arizona Contractor’s License No. KB-1.248137-D shall be suspended for a period of two (2) days. 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, October 21, 2015.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.”

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826