ALJDEC decisions subject to certification as final

2015A-2804-ROC · Registrar of Contractors · 2016-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 3, 2016, at 10:00 a.m. APPEARANCES: William Lucia Rummler (hereinafter “Complainant” or “Mr. Rummler”) appeared on own behalf of the Complainants. Puckett’s Flooring Company (hereinafter “Respondent”) appeared through its qualifying party and officer, David Adams Fluegel (hereinafter “Mr. Fluegel”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3), and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of License No. CR-8.274083-D issued by the Registrar. Respondent’s License No. CR-8.274083-D License was current on May 4, 2016. 2. Respondent is also the holder of License No. CR-8.187268-D issued by the Registrar. Respondent’s License No. CR-8.187268-D was suspended for lack of bond on September 14, 2015. 3. Respondent is also the holder of License No. CR-8.187269-D issued by the Registrar. Respondent’s License No. CR-9.187269-D was current on May 4, 2016. 4. This is a residential matter in which on or about January 12, 2015, Complainants contracted with Respondent for the installation of a new tile floor at their residence at 1010 W. Fairway Drive, Mesa Arizona 85201 (hereinafter the “residence”). 5. Respondent installed the new tile floor on or about January 25, 2015. Complainants were dissatisfied with Respondent’s workmanship and requested that Respondent properly correct the new tile floor. When Respondent failed to correct the new tile floor to the Complainants’ satisfaction they filed a Complaint against Respondent with the Registrar on or about June 29, 2015. 6. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s residence. 7. On December 15, 2014, a written Directive was issued by the Registrar. 8. The written Directive provided, in relevant part, as follows: 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) Correct all grout joints that are misaligned by over ¼”.

2) Remove and replace ALL hollow sounding tiles that do not adhere to the floor by at least 80%. If more than 20% of the tile sounds hollow than it must be removed and reset. This includes all rooms in the entire house.

3) Replace one chipped tile at the bedroom entrance off the hallway.

4) Correct all miss colored grout.

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

9. Respondent failed to comply with the written Directive. 10. After Respondent failed to comply with the Registrar’s written Directive, Complainants requested the Registrar to issue a Citation against Respondent’s licenses. 11. On February 17, 2016, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained two charges: Charge 1: 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).[1]

Charge 2: A violation of A.R.S. § 32-1154(A)(22).[2]

12. The assigned Registrar Investigator, Theodore Gerald (hereinafter “Investigator Gerald”), testified that he had performed the initial onsite inspection and that he had prepared the written Directive. Investigator Gerald stated that he performed the first compliance inspection at Complainants’ residence on August 10, 2015. Investigator Gerold said that Respondent had performed no corrective work at Complainants’ residence at that time. 13. Investigator Gerald testified that he performed a second compliance inspection at Complainants’ residence on January 5, 2016. Investigator Gerald stated that Respondent had performed corrective action on the tile floor at the residence but that Respondent had failed to comply with the terms and conditions of the written directive. 14. Investigator Gerald testified that he performed a prehearing inspection at the residence on May 2, 2016. Investigator Gerald stated that Respondent had satisfactorily corrected the misalignment of the grout joints. Investigator Gerald said that Respondent had failed to correct the hollow tiles, the miss-colored grout, and the chipped tiles on the tile floor at the residence. Investigator Gerald said that Respondent’s corrective work on the tile floor at the residence had caused chipping on additional floor tiles that Respondent is now responsible for correcting. 15. Investigator Gerald opined that Respondent did not comply with the Registrar’s Directive. 16. Investigator Gerald’s testimony is found to be credible. 17. Mr. Rummler testified that Respondent had failed to correct the tile floor in Complainants’ residence in accordance with the written directive issued by the Registrar. Mr. Rummler stated that Respondent’s workmanship on the tile floor was unsatisfactory. Mr. Rummler said that Respondent has now had 16 months to correct Respondent’s workmanship deficiencies on the tile floor in Complainants’ residence. Mr. Rummler said that Respondent’s repeated corrective attempts on the tile floor have caused extensive damage to other parts of Complainants’ residence. Mr. Rummler denied that Complainants had ever denied Respondent access to Complainants’ residence. Mr. Rummler opined that Respondent had intentionally attempted to antagonize the Complainants into denying Respondent access to their residence. 18. Mr. Rummler’s testimony is found to be credible. 19. Ruth Rummler (hereinafter “Mrs. Rummler”) testified that Respondent had treated her in a disrespectful manner. Mrs. Rummler stated that Respondent was always defensive with her and repeatedly failed to correct problems with the tile floor in her residence. Mrs. Rummler said that Respondent repeatedly attempted to do just enough to get by. Mrs. Rummler said that she had informed the Respondent that she had breathing problems and that she could not be exposed to toxic chemicals prior to the installation of the tile floor. Mrs. Rummler said that despite this knowledge the Respondent repeatedly used toxic chemicals in her residence.

20. Mrs. Rummler’s testimony is found to be credible. 21. Mr. Fluegel testified that Respondent had been in operation for many years and had installed thousands of tile floors without a problem. Mr. Fluegel acknowledged that the Respondent had initially misaligned the grout joints in the tile floor in Complainants’ residence. Mr. Fluegel stated that Respondent had corrected the grout joint misalignment by removing and reinstalling hundreds of floor tiles in the residence. 22. Mr. Fluegel testified that the problems with the Complainants’ tile floor was caused by the type of floor tile installed. Mr. Fluegel said that the entire flooring industry has had a problem with the installation of the long wood-appearing tile. Mr. Fluegel said that floor tiles in Complainants’ residence are structurally sound. Mr. Fluegel acknowledged that some of the floor tiles are hollow sounding. Mr. Fluegel asserted that other Registrar Investigators have found the hollow sounding floor tiles to be acceptable if the tiles were properly secured. 23. Mr. Fluegel opined that the problems with the floor tile installation in Complainants’ residence were caused by a sealer on the concrete subfloor which may have prevented the thin-set from adhering to the concrete. Mr. Fluegel acknowledged that Respondent had made some mistakes on the construction project at Complainants’ residence. Mr. Fluegel said that it had been a learning process. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). The suspended status of Respondent’s Class CR-8.187268-D License does not deprive Complainants of their right to prosecute their complaint against Respondent or prevent the Registrar from determining the merits of Complainants’ Complaint. See A.R.S. § 32-1154(C). 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. 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). Complainants established by a preponderance of the evidence that Respondent did not install the new tile floor in their residence in a professional and workmanlike manner. Complainants established that Respondent failed to comply with the Registrar’s written Directive. Complainants established that Respondent has failed to correct the workmanship deficiencies in Complainants’ tile floor despite having an extended period of time to correct its workmanship deficiencies. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32-1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License Nos. CR-8.274083-D, CR- 8.187268-D and CR-8.187269-D of Respondent shall all be suspended for seven (7) days. It is further recommended that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). 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 licenses 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 this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification. Done this day, May 5, 2016. /s/ M. Douglas 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 disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. 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.

[2] A.R.S. § 32-1154(A)(22) provides as follows:

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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