ALJDEC decisions subject to certification as final

2015A-2811-ROC · Registrar of Contractors · 2016-09-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 1, 2016, July 26, 2016, and August 17, 2016 APPEARANCES: At the first hearing, Complainant Jane S. Queyssac was represented by Brian A. Weinberger. At the following settings, Complainant appeared on her own behalf. Respondent Executive Marble Details, LLC was represented by Robert J. Itri. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Respondent Executive Marble Details LLC is the holder of License No. 280813 issued by the Arizona Registrar of Contractors (Registrar). On or about December 18, 2012, Respondent provided a proposal for work to be done at Complainant’s home. The proposal provided as follows: We hereby propose to furnish materials and labor necessary for the completion of the following,

Flooring, Including Foyer, Living, Dining, Family, Kitchen, to be Treillage with three different stones. Including laundry and hall areas. $33,406.00

Brickwalls and carve limestone corbels. Kitchen arch, Appliance wall, fireplace wall. Using Robinson brick with corners. $19,875.00

Kitchen counters, Island, Calacatte marble, Backsplash TBD and carve limestone hood. As per photo. $17,465.00 Fireplace Surround, Cirve Limestone, as per photo/drawing $15,800.00

Powder Room, Wainscot, Counter and deco flooring. $5,250.00

Guest Bath, Tub to be under mount with Slab cream of marfil deck, including Tile walls with arch Details, wainscot up 42”, Slab Cream of marfil Vanitys and cream of Marfill flooring. $10,760.00

Master Bath, Including Tub deck, riser and head board, Shower, all bath walls up to bottom of window, Vanity and Flooring. Materials are cream of Marfil tile with slab Calacatta $27,675.00

Laundry counter & splash, using soapstone. $2,780.00

Bar Counter, Upper & Lower, Using Cedar or Monte Carlo Marble honed $2,630.00

NOTE; ALL MATERIAL, DETAIL’S AND LAYOUT TO BE APPROVED BY JANE, SEALING IS INCLUDED.

Complainant’s Exhibit 1 (all errors in original). The proposal did not include Respondent’s license number, the estimated date of completion of all work to be performed under the contract, or a statement that Complainant had the right to file a written complaint with the Registrar for an alleged violation of A.R.S. § 32-1154(A). Sometime in 2013, the parties entered into a contract that reflected the work set forth in the proposal.[1] Respondent last worked on the project on March 3, 2015. On or about May 1, 2015, Respondent sent Complainant a final invoice in the total amount of $5,065.72 for work completed and approved by the general contractor. As of the conclusion of the hearing in this matter, Complainant had not paid the final invoice. On or about June 29, 2015, Complainant filed a complaint with the Registrar, which alleged as follows: 1. Work incomplete. Never given copy of signed contract. 2. Contractor has material that was paid for, but will not return. 3. Understanding/contracted to do ALL stone, tile, marble work for entire project. 4. No extra tile or stone on site, EVERY piece removed from job site. 5. No care/maintenance for stone,tile,grout. [sic] No info for replacement in future. 6. Contractor quote, “We aren’t worried about the ROC, we’ll take our chances.” 7. Contractor too busy with other jobs to do work from the start. 8. Tina hasn’t been on site since before Thanksgiving, won’t show up. 9. Tried without success to work with contractor to finish. They’re not interested.

The Registrar assigned the complaint to Investigator Steve Klein. On or about July 2, 2015, the Registrar notified Respondent of the complaint and requested a response within 15 days. On or about August 13, 2015, Investigator Klein performed a jobsite inspection. At that time, Complainant presented a detailed list of items she claimed were not completed under the contract or were not performed in a workmanlike manner. Respondent objected to the additional items being considered at that time because it had not been provided an opportunity to review or respond to the allegations. On or about September 24, 2015, Complainant submitted an amended complaint in which she included the specific list of items she wished to have considered under the complaint. On or about December 16, 2015, Investigator Klein issued a written directive to Respondent. The directive included a December 31, 2015 deadline for performance of the corrective work included in the directive. On or about December 23, 2015, Investigator Klein issued an amended written directive to Respondent. The amended directive provided 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:

Complaint Item 1: Work incomplete. Never given copy of signed contract. • Respondent didn’t meet the minimum elements of a contract. (32-1158 B)

Complaint Item 3: Understanding/contracted to do ALL stone, tile, marble work for entire project. • Respondent didn’t meet the minimum elements of a contract. (32-1158 B)

Foyer: Complaint Item 10: Limestone Floor - pitted throughout entire area, some holes were filled with grout using a finger rather than a putty knife as to make them flush and they should be filled with an epoxy or the like1 NOT grout! Grout is NOT filler. • Holes or pits should be filled per industry standards. Complaint Item 11: Threshold to Dining Room - not sealed. • Verified black material easily removed, Respondent agreed to seal areas that were marked by the Complainant. Complaint Item 12: Threshold to Family Room - not sealed • Verified black material easily removed, Respondent agreed to seal areas that were marked by the Complainant. Complaint Item 13: Grout chunk(s) left attached to floor. • Verified grout touch up is needed

Dining Room: Complaint Item 14: Cracked floor - Portuguese Limestone flooring by front window. • Sometimes a vein or fissure may look like a crack. A crack should be corrected and a vein or fissure that you can feel when you run your fingers across should be corrected Complaint Item 15: Grout joint -various left with gaps and holes from patch jobs • Respondent agreed to fill grout voids. Complaint Item 16: Floor - not sealed in numerous areas • Respondent agreed to seal areas that were marked by the Complainant.

Powder Room: Complaint Item 17: Marble wainscoting - not sealed. • Respondent agreed to seal areas that were marked by the Complainant. Complaint Item 18: Marble floor - not sealed in areas • Respondent agreed to seal areas that were marked by the Complainant. Complaint Item 19: Vanity countertop - I don’t know how it could be sealed. Under counter mounted sink - NOT mounted or caulked, sitting loose under marble countertop not attached to marble. • The project should be completed per the original contract agreement, properly executed change orders and verbal agreements

Bar: Complaint Item 21: Countertop - pit holes never filled. • Holes or pits should be filled per industry standards. Complaint Item 22: Under counter mounted sink - NOT mounted or caulked, sitting loose under marble countertop not attached to marble. • The project should be completed per the original contract agreement, properly executed change orders and verbal agreements. Complaint Item 23: Michelangelo Marble - not sure is sealed based on everything else that is not sealed. • Respondent agreed to seal areas that were marked by the Complainant. Complaint Item 25: Threshold to Family Room not sealed. • Respondent agreed to seal areas that were marked by the Complainant.

Family Room: Complaint Item 26: Fireplace - not entirely sealed, grout not sealed. • Respondent agreed to seal areas that were marked by the Complainant. Complaint Item 27: Limestone Floor - pitted throughout entire area, some holes were filled with grout using a finger rather than a putty knife as to make them flush and they should be filled with an epoxy or the like, NOT grout! Grout is NOT filler. • Holes or pits should be filled per industry standards. Complaint Item 28: Threshold to kitchen – not sealed • Respondent agreed to seal areas that were marked by the Complainant.

Guest Bedroom Hallway: Complaint Item 30: No grout - at doorway casing to Guest bathroom. • Verified grout touch up is needed. Complaint Item 31: No grout - at doorway to middle Guest bedroom. • Verified grout touch up is needed. Complaint Item 32: No grout - at doorway to back Guest bedroom. • Verified grout touch up is needed.

Guest Bathroom: Complaint Item 34: Marble Floor - not sealed • Respondent agreed to seal areas that were marked by the Complainant. Complaint Item 35: Marble Countertops - for Sinks and Corner Cabinet; random areas not sealed throughout. • Respondent agreed to seal areas that were marked by the Complainant. Complaint Item 36: Marble baseboard - piece missing, not installed. • Verified marble baseboard is missing in the guest bath. Complaint Item 37: Bathtub Marble - random areas not sealed. • Respondent agreed to seal areas that were marked by the Complainant. Complaint Item 38: Bathtub light - tiled over electrical box then cut/chiseled hole AFTER to uncover electrical box - hole too big for light fixture. • Light should be able to be installed as intended. Complaint Item 41: Shower walls - tile not set flush - thus pluming trim can’t be flush - leaves void for water to get into the wall. • Verified lippage Complaint Item 42: Corner Cabinet - Shims left showing for countertop. Areas not sealed • Shim removed during jobsite inspection and Respondent agreed to seal areas that were marked by the Complainant. Complaint Item 43: Sinks - Under counter mounted sinks - BOTH not mounted or caulked, just sitting loose under marble countertops. • The project should be completed per the original contract agreement, properly executed change orders and verbal agreements. Complaint Item 45: Grout - voids around tub and tile. • Verified grout touch op needed.

Kitchen: Complaint Item 46: Marble Countertop - corner seam, never buffed out (right side of Window). • Verified seam needs work. Complaint Item 47: Marble Countertops - two different depths on each side of Range; Left side -24 7/8” deep and Right side - 24 1/8” deep - this is a 3/4” DIFFERENCE of countertops on each side of the Range. • The Respondent felt the dimensional issues could be corrected if the job was completed. • The project should be completed per the original contract agreement, properly executed change orders and verbal agreements. Complaint Item 48: Marble Countertops - Right side of Range Marble counter cut too short in depth and glued/bonded back together by Executive Marble. I literally uncovered/discovered when Rosin paper and cardboard covering the countertops was removed in June 2015. 1 was never told they made this huge mistake cutting my marble. I asked Rick when he was here in August if he cut this countertop and he played dumb and kept saying, “he didn’t know what I was talking about.” He knew exactly what I was talking about. Rick said, “I made everything here I” He said this right in front of you. • Respondent states after the cabinets were measured and templet’s made, the cabinets were moved by others prior to the top being installed. The rear piece was added to the counter top in lieu of replacing with a new complete top. The seam would be covered when the back splash is installed. There are issues with wall and cabinet dimensions. I’m unable to determine if the wall is out of plumb, out of square, or there were cabinet installation issues. I have no knowledge what happen between trades prior to the jobsite inspection and feel the existing top will be acceptable once the project is completed. • The project should be completed per the original contract agreement, properly executed change orders and verbal agreements. Complaint Item 49: Wonder Board - Executive Marble installed TWO layers on the Right side of Range to COVER their HUGE error in cutting the countertop too short. Two layers of Wonder Board plus the Backsplash tile (they were supposed to install) would have covered their mistake. But they abandoned their work and it was then discovered when I removed the protective paper. • Respondent states after the cabinets were measured and templet’s made, the cabinets were moved by others prior to the top being installed. The Wonder Board was added to the wall to correct dimensional issues. I’m unable to determine if the wall is out of plumb, out of square, or there were cabinet installation issues. I have no knowledge what happen between trades prior to the jobsite inspection. The Respondent felt the dimensional issues could be corrected if the job was completed. • The project should be completed per the original contract agreement, properly executed change orders and verbal agreements. Complaint Item 50: Custom Order Backsplash - order by Executive Marble to be installed by them. Executive Marble installed the Wonder Board but had no intention on installing the backsplash? Refer to the following documents included with original complaint; Refer to Contract, CLEARLY states: Backsplash TBD, Quote email dated 04/21/14, email dated 04/25/14 showing delivery and commitment to install, Spread Sheet of Payments prepared by Tina (Executive Marble) dated 07/04/14 showing backsplash installation still outstanding, email to Tim Pennington (ROC) dated 09/16/14 (Executive Marble copied on it), see email dated 07/29/13 from Executive Marble stated, “WE ARE USING 1” FOR BACKSPLASH” and email from Executive Marble dated 12/12/14 stating, “Any extras will be done after I complete my contract.” • The project should be completed per the original contract agreement, properly executed change orders and verbal agreements. Complaint Item 51: Calacatta Marble Backsplash & Window Sill - not installed. Refer to Contract, CLEARLY states: Backsplash TBD. See email from Executive Marble dated 12/12/14 stating, “Any extras will be done after I complete my contract.” • The project should be completed per the original contract agreement, properly executed change orders and verbal agreements. Complaint Item 52: Beaumaniere Limestone Backsplash - behind Range. Not installed. Refer to Contract, CLEARLY states: Backsplash TBD. See email dated 07/27/13. Design details with Executive Marble. See email from Executive Marble dated 12/12/14 stating, ‘Any extras will be done after I complete my contract.” • The project should be completed per the original contract agreement, properly executed change orders and verbal agreements. Complaint Item 53: Marble Shelves- See email date 07/27/13. Executive Marble has had design prior to 07/27/13. • The project should be completed per the original contract agreement, properly executed change orders and verbal agreements. Complaint Item 54: Sink at Window - Under counter mounted sink - not mounted/attached to countertop or caulked, sitting loose under marble countertop not attached to marble. • The project should be completed per the original contract agreement, properly executed change orders and verbal agreements. Complaint Item 55: Sink on Island - Under counter mounted sink - not mounted/attached to countertop or caulked, sitting loose under marble countertop not attached to marble. • The project should be completed per the original contract agreement, properly executed change orders and verbal agreements. Complaint Item 56: Limestone Floor - - pitted throughout entire area, some holes were filled with grout using a finger rather than a putty knife as to make them flush and they should be filled with an epoxy or the like, NOT grout! Grout is NOT filler. • Holes or pits should be filled per industry standards. Complaint Item 57: Countertops - installed with veins running horizontally. Same marble in Laundry Room set vertically. I requested (IN WRITING) to approve the layout of the countertops, but was not allowed to do so. It is written in the contract “Layout to approved by Jane.” • The project should be completed per the original contract agreement, properly executed change orders, verbal agreements. Complaint Item 58: Clean-up_- after shooting wet saw water up into my exhaust fan, Rick left it the way you see it. He did the same with my cabinetry. No concern for homeowner’s property. • Exhaust fan hood should be cleaned.

Barrel Entrance to Kitchen: Complaint Item 60: Flooring - stone cracked • Sometimes a vein or fissure may look like a crack, My opinion is a crack should be corrected and a vein or fissure that you can feel when you run your fingers across should be corrected.

Laundry Room: Complaint Item 61: Countertops installed with veins running vertically, Same marble in Kitchen, set horizontally. Layout like this was NEVER APPOVED by me. • The project should be completed per the original contract agreement, properly executed change orders, verbal agreements. Complaint Item 62: Backsplash - not sealed Sink side and Wash/Dryer side. Missing grout at corner by Dryer. • Respondent agreed to seal areas that were marked by the Complainant. Grout voids should be filled Complaint Item 64: Calacatta Marble Window Sill - not installed, but they left the space open for installation of it. See email date 07/27/13. • The project should be completed per the original contract agreement, properly executed change orders, verbal agreements. Complaint Item 65: No Grout - at Pocket Door • Flooring at pocket door looks unfinished compared to other pocket door in the home. Complaint Item 66: Backsplash - at Security Panel twice as thick as other side. • Back splash grout line is thicker on one side than the other; it appears the wall is out of plumb. When an inadequate or defective substrate is present prior to installation of the tile, the general contractor and /or the owner should be notified in writing by the tile contractor that a specific surface area is unacceptable for installation. Verifiable documentation that the potential problem was first submitted to the responsible party may relieve the installer of responsibility. Complaint Item 67: Sink - Under counter mounted sink - not mounted/attached to countertop or caulked, sitting loose under marble countertop not attached to marble. • The project should be completed per the original contract agreement, properly executed change orders and verbal agreements.

Kitchen/Laundry/Master Hallway: Complaint Item 68: Limestone Floor - - pitted throughout entire area, some holes were filled with grout using a finger rather than a putty knife as to make them flush and they should be filled with an epoxy or the like, NOT grout! Grout is NOT filler. • Holes or pits should be filled per industry standards.

Master Entrance Complaint Item 69: No Grout - at Door Casings • Verified touch up is needed. Complaint Item 70: No Grout - at entrance to Bedroom • Verified touch up is needed.

Master Bathroom: Complaint Item 71: No Grout - at entrance to Bathroom (from Bedroom) • Verified touch up is needed. Complaint Item 72: Sinks - Under counter mounted sinks -not mounted/attached to countertop or caulked, just sitting loose under marble countertop. • The project should be completed per the original contract agreement, properly executed change orders and verbal agreements. Complaint Item 73: Marble Floor - pitted, not filled various areas Master Shower • Holes or pits should be filled per industry standards.

Master Shower: Complaint Item 74: Grout - cracked and sections missing around door surround to cause water behind walls. • Verified touch up is needed. Complaint Item 75: Shelves - not installed properly; grout voids, seams/marble don’t line up at seams etc, grout missing. • Verified one side is inconsistent with the other side of the shower, they should match. Complaint Item 76: Drain Covers - areas not sealed or grouted so moisture isn’t sandwiched in to cause mold. • Verified touch up is needed Complaint Item 77: Shower - no sealed in random areas throughout. • Respondent agreed to seal areas that were marked by the Complainant.

Master Closet: Complaint Item 78: Marble Floor - pitted, not filled • Holes or pits should be filled per industry standards. Complaint Item 79: Marble Floor - cracked • Sometimes a vein or fissure can look like a crack. A crack should be corrected and a vein that you can feel when you run your fingers across should be corrected. Complaint Item 80: Item #1 continued I have never received a copy of the sign contract. Per ARS 32-1158, the contractor is supposed to supply a copy to me. Please have them supply a copy of the signed and dated contract. • Respondent didn’t meet the minimum elements of a contract. (32-1158 B)

Added during the jobsite inspection: continued on next page

Complaint Item 82: Phone outlet in laundry tiled horizontal, should have been vertical per agreement. • Complainant supplies paperwork stating installation agreement. The project should be completed per the original contract agreement, properly executed change orders and verbal agreements.

The project should be completed per the original contract agreement, properly executed change orders, verbal agreements

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

All errors in original.

On or about December 30, 2015, Tina Blaser, Respondent’s Qualifying Party, contacted Investigator Klein “and said they close their office over the holidays, and will call the Complainant to schedule corrections after the first of the year.” Investigator Klein’s notes indicate he “said ok, and will add to file notes.” Investigator Klein did not explicitly grant an extension of the deadline provided in the amended directive. On or about December 30, 2015, Ms. Blaser also sent an email to Investigator Klein that read as follows: “In regards to work order dated December 16, 2015[,] we would like to request additional time due to holiday’s [sic]/materials and schedule as well as it is vacation time for most of us.” Investigator Klein wrote back, “Would you mind sending an estimated completion date after you schedule the appointment?” Respondent’s Exhibit 28. On Wednesday, January 6, 2016, Ms. Blaser emailed Complainant to arrange a time Respondent could come out to do some of the work in the amended directive. Ms. Blaser requested three consecutive days and suggested the weeks of January 18, 2016, January 25, 2016, or February 1, 2016. On Wednesday, January 6, 2016, Complainant forwarded the email from Ms. Blaser to Investigator Klein and Steve Nelsen. Complainant pointed out that the deadline in the amended directive was 5:00 p.m. on January 11, 2016 and asked what was her obligation after the deadline. Ms. Nelsen replied to Complainant as follows: We must give a minimum of 15 days as per statute, but we would encourage you to work with the Contractor to complete the job as there may have been unforeseen circumstances. Understanding your frustration and the length of time this has taken, it may be in your best interest to work with the contractor to have the job completed. If on the other hand you would like a compliance inspection after January 11th we can do so and forward it to Legal, but I cannot give you a definitive timeline on how long that process may take. Please let me know how you would like to proceed.

Respondent’s Exhibit 16.

On Thursday, January 7, 2016, Complainant replied to Ms. Blaser and cited the January 11, 2016 deadline in the December 23, 2015 amended directive and offered to let Respondent come perform the work on Friday, Saturday, and Sunday, or Saturday, Sunday, and Monday so the work could be completed before the January 11, 2016 deadline. Ms. Blaser replied that Respondent had requested an extension because it was closed for the holidays. Complainant requested a copy of any extension that had been granted by Investigator Klein. When Ms. Blaser emailed Investigator Klein about the issue, Investigator Klein indicated via email that “[n]ormally when a contractor is willing to correct the issues and needs more time, I will work with them if they notify me.” Respondent’s Exhibit 29. On or about January 12, 2016, Investigator Klein performed a compliance jobsite inspection. Respondent was not present at this inspection. At that time, Investigator Klein determined that no corrective work had been performed. As a result, the matter was forwarded to the Registrar’s Legal Department for further action. On or about February 5, 2016, counsel for Respondent sent a letter to counsel for Complainant attempting to arrange a time for Respondent to perform the corrective work identified in the amended directive that it agreed to complete. In the letter was a list of those items Respondent intended to address and a separate list of those items Respondent argued were beyond the scope of its original contract and therefore, not the responsibility of Respondent to repair or complete. Specifically, Respondent agreed to address items 10-12, 14-18, 21, 23, 25-28, 30-32, 34- 37, 41, 42, 45, 46, 56, 58, 60, 62, 65, 68, 69-71, 73-79, and 82. Specifically, Respondent denied it was responsible to address items 19, 22, 38, 43, 47-55, 57. 61, 64, 67, and 72. Complainant’s Exhibit 5. During email conversations back and forth between counsel, Complainant’s counsel requested to know specifics as to how Respondent planned to correct certain items and asserted that Complainant “obviously wants, and is entitled, to know what your client is going to do in her home before they simply show.” Respondent’s counsel reiterated that Respondent would do whatever was necessary to comply with the Registrar’s amended directive as it related to the items it would correct. Complainant’s Exhibit 24. For whatever reason, Complainant and Respondent were never able to reach an agreement as to the dates any corrective work could be performed and the project remains the same as it was at the time of the compliance inspection on January 12, 2015. On or about February 22, 2016, the Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3);[2] A.R.S. § 32-1154(A)(12),[3] namely A.R.S. § 32- 1158(B);[4] and A.R.S. § 32-1154(22).[5] At hearing, Respondent acknowledged there were some items in the amended directive that should be corrected and asserted that it was willing to correct, such as correcting the shelves in the master bathroom. There were other items in the amended directive that Respondent felt it should not be required to complete, but that it would do so in an effort to satisfy Complainant, such as resealing all of the stone in the home. Respondent asserted that it had sealed the stone when it was installed, but that the type of sealant used may not make it readily apparent to Complainant or Investigator Klein during the inspection that the stone was, in fact, sealed. Respondent also noted that stone needs to be resealed periodically and it had been some time since the project started. At hearing, the items Respondent alleged were beyond the scope of the contract, but were listed in the amended directive could be categorized into the general categories of installation of the sinks, backsplash, kitchen countertop, and laundry room countertops. As to the sinks, Complainant argued that Respondent was responsible for “installing the sinks” after the countertops were completed and Respondent should have caulked the sinks to eliminate the gap between the countertop and the sink and to prevent the movement of the sink under the countertop. Respondent argued that because the general contractor installed the sub- tops, it was the general contractor’s responsibility to complete the installation of the sinks. Respondent stated that if it was responsible for installing the sinks despite the general contractor installing the sub- tops, that responsibility would have been included in the contract. Complainant presented a witness who asserted that it was the responsibility of the countertop installer to install the sink. As to the backsplash, Complainant argued that it was understood from the outset that Respondent was to complete all the stonework in the project including the backsplash. Respondent argued that the backsplash had never been finalized because Complainant had not made final decisions as to the materials and design for the entire backsplash. Respondent also pointed out that the contract identified the backsplash as “TBD” and that the contract price did not include any labor or materials cost for the backsplash because the cost of the materials and the amount of labor necessary to complete the backsplash were unknown at the time of the contract. Eventually the bulk of the tile for the backsplash was selected and paid for by Complainant, however, no written change orders were executed as to the labor to install the backsplash. Also, Complainant had never finalized any decisions as to the design and material of the backsplash that was to be installed over the stovetop. As to the kitchen countertop, Complainant argued that Respondent erroneously cut the countertop on the right side of the stove 3/8 of an inch shorter than the countertop on the left side of the stove, then glued the marble back together and installed the flawed countertop. Complainant asserted that Respondent then installed two layers of Wonder Board to the backsplash in an effort to cover the gap once the tile was installed. Respondent argued that the erroneous cut was the result of the cabinets being installed incorrectly when the hard template was made, but the cabinets were then removed and reinstalled at a different depth. Because the countertop had not been delivered to the site before the change was noted, Respondent was able to bond the extra depth to the back of the countertop with the intention that the tile backsplash would cover the seam. Respondent also argued that it could just as easily left the strip off and there would have been a void under the backsplash. Related to both the backsplash and the kitchen countertop, Complainant argued that the two layers of Wonder Board on the right side of the stove and the one layer of Wonder Board on the left side of the stove resulted in the countertops being different depths. Respondent argued that if it had proceeded with the project and installed the backsplash, the two sides would have been even. Respondent maintained that it was never its intention to leave the two sides of the stove different depths, but that because the specifics of the backsplash had never been decided, it was unable to perform that work. Respondent asserted that the Wonder Board was used to help make the wall even as none of the walls in the house were square. As to the laundry room countertops, Complainant argued that the veins in the marble ran vertically while the veins in the marble in the kitchen countertops ran horizontally. Complainant argued that she was never afforded an opportunity to approve the layout of the countertops even though the contract required her approval. Respondent argued that the original contract called for soapstone countertops in the laundry room and Complainant later changed her mind to have the marble countertops carryover from the kitchen. Respondent asserted that Complainant was aware the laundry room countertops would be made out of the extra materials from the slabs of marble used for the kitchen countertops. Respondent indicated that there was barely enough material left after the kitchen countertops to complete the laundry room countertops and that the layout used was the only way to make it work. Respondent maintained that Complainant was fully aware of the situation. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on September 6, 2016. Such prior License record reflects that Respondent’s License No. 280813 was first issued on August 31, 2012, and was current. The Registrar’s public website indicates no prior complaints. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. 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). “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 presented at hearing established that Respondent’s proposal did not include the required elements set forth in A.R.S. § 32-1158(B). Neither party presented a signed copy of the contract, however, neither party argued that the contract was in a format different than the proposal. Therefore, Complainant established that Respondent’s contract was in violation of A.R.S. § 32- 1154(A)(12), namely A.R.S. § 32-1124(B). 4. Respondent acknowledged that some items in the amended directive required correction and offered to address some other items in the amended directive that it argued did not require correction. As to those items, Complainant established that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3). 5. As to the sinks, Complainant failed to prove by a preponderance of the evidence that Respondent was responsible under the contract for installing the sinks. 6. As to the backsplash, Complainant failed to prove by a preponderance of the evidence that the backsplash was a part of the contract. While it may have been the parties’ intention that the backsplash be included in the scope of work, Complainant did not finalize all of the decisions necessary to effectuate a change order such that the backsplash was a part of the contract. 7. As to the kitchen countertop, Complainant failed to prove by a preponderance of the evidence that the seam in the kitchen countertop was a deviation from workmanship standards. Once the backsplash is complete, the seam will not be visible and will not affect the integrity of the countertop. 8. As to the laundry room countertops, Complainant failed to prove by a preponderance of the evidence that the vertical veins in the marble were a deviation from the workmanship standards. Complainant was informed at the time she changed the countertops from soapstone to marble that limited materials remained from the slabs used for the kitchen. Because Complainant knew the laundry room countertops were being done from scrap materials, she knew or should have known that the vein patterns may not be identical to the kitchen countertops. 9. Therefore, as to these four aspects of the complaint, Complainant failed to established that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3). 10. The credible evidence presented at hearing established that Respondent did not comply with the written directive issued by the Registrar. Of note, Respondent did not timely reach out to Complainant to arrange a time to perform the corrective work upon receipt of the December 16, 2015 directive that had a deadline of December 31, 2015, even though Respondent knew it intended to take off two weeks around the holiday. At the time it received the December 16, 2015 directive, Respondent had no way of knowing that an amended directive would be issued that would extend that deadline. Upon receipt of the December 23, 2015 amended directive, Respondent contacted Investigator Klein on December 30, 2015, to ask for an extension of the January 11, 2016 deadline, but did not contact Complainant until January 6, 2016, to arrange a time to complete the work it agreed to perform. Also of note, when asked to be flexible and allow Respondent to perform the corrective work, Complainant was unwilling to let Respondent do any work after the deadline in the amended directive. The evidence established that Respondent failed to comply with a written directive from the Registrar in violation of A.R.S. § 32-1154(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that Respondent Executive Marble be afforded an opportunity to perform the corrective work in the amended directive that it agreed to perform as listed in Finding of Fact 20 above. If, on or before the effective date of the Registrar’s Order in this matter, Respondent provides written proof that is acceptable to the Registrar that it has corrected those items in the amended directive and has performed the work in a professional manner or that Complainant has refused Respondent access to the property to effectuate the corrective work, the Registrar should close the complaint in this matter. It is further recommended that if by the effective date of the Registrar’s Order in this matter, Respondent fails to provide written proof that is acceptable to the Registrar that it has corrected those items in the amended directive after being granted access to the property, the Registrar should suspend Respondent’s License No. 280813 for a period of one day. It is further recommended Respondent’s License No. 280813 shall be suspended for a period of one day based on its violation of A.R.S. § 32- 1154(A)(12), namely A.R.S. § 32-1158(B). However, if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is acceptable to the Registrar that it has amended its form contract to comply with A.R.S. § 32-1158(B), the Registrar should not suspend Respondent’s license but, instead, shall close the complaint in this matter. 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, September 6, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Neither party presented a copy of a signed contract at the hearing. [2] 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.” 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.” [3] A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” [4] A.R.S. § 32-1158(B) sets forth the minimum elements of a contract as follows: B. 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. [5] A.R.S. § 32-1154(A)(22) 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.”

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