ALJDEC decisions subject to certification as final

2016A-1896-ROC · Registrar of Contractors · 2016-11-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Nancy Lewis,

COMPLAINANT,

v.

Badger Restoration Inc.,

License No: 271133

RESPONDENT.

No. 2016A-1896-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 21, 2016

APPEARANCES: Scott Frerichs, Attorney for Complainant; Nancy Lewis, Complainant; Jim and Glen Brennan for Respondent; Russell Reed, Registrar of Contractors Investigator; Randy Lewis, observer

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Director of the Arizona Health Care Cost Containment System ("AHCCCS") Administration.

FINDINGS OF FACT

Complainant hired Respondent to remodel her home. On June 3, 2016, Complainant filed a complaint with the Registrar of Contractors against Respondent for a number of items.

A Registrar of Contractors Investigator, Russell Reed, conducted a job site inspection on June 20, 2016. He issued a Directive from the Registrar with 19 items of correction or completion the following day. The 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). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on July 11, 2016.

You are hereby directed to remedy the following violations by the appropriate means:

Main electrical panel has a knock out missing. Bring it to code.

Bolts and caps on toilet in bathroom 3.

Kitchen panel right side of refrigerator has a nail or screw protruding through.

Wood braces in vanities to support counter top and sink install.

French door in master bedroom is missing striker plate at top and does not function properly.

Improper hardware on linen closet.

Damage to laundry room door around knob.

Trim pieces around door-ways do not match up properly on several frames.

Trim piece at bottom step near the front door does not match.

2 tiles near dishwasher are cracked or chipped.

Lippage greater than 1/32” on tiles throughout house.

Excessive grout around rail in dining room.

Attic pull down in garage does not have fire block.

Shower door in master bath- towel bar is to long for the door.

All door stops should be installed properly.

Drywall texture should be consistent throughout the house.

Staples used to repair drywall in master bedroom.

Exterior of house where new blocks or framing was added should be painted to match existing paint as close as possible.

Drywall mud and paint left on fireplace bricks should be cleaned off.

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

During a compliance inspection on July 14, 2016, Investigator Reed found that 12 of the 19 items of correction had been completed properly. Respondent attempted to correct everything but the items connected to the tile flooring but some corrections did not meet the Registrar of Contractors standards. According to Respondent’s statements during the closing argument, Respondent was not aware that these items had not been corrected properly. However, these items were considered by the Registrar of Contractors Investigator to be extremely minor and easily corrected issues. They concern item #5 in which the striker plate was installed but was not mortised, item #9 where the trim piece was corrected but was not aesthetic, and item #13, where correction of the attic door created more weight to the door and now needs the spring to be adjusted so the door closes tightly. Respondent did not texture and paint it at Complainant’s request but is willing to correct all items. Items 10, 11, 12, and 15 appear to be the items that require a flooring subcontractor to complete. Regarding the cause of the lippage, Respondent argued in its response to the complaint that Complainant refused to pay to have the concrete floor leveled and wanted smaller grout lines than the manufacturer suggested resulting in a more uneven look. Because the number of tiles needing correction due to lippage, none of the flooring items were corrected.

Regarding the tile lippage, Investigator Reed testified that there were 5 or 6 areas throughout the home that required repairs. The tile was not repaired during the period allowed by the Directive because the parties disputed the number of tiles that required correction and the Registrar of Contractors did not specify which ones were involved. Respondent obtained a professional opinion from Quest Inspect. The report found that, using ANSI standards, only 5 or 6 “cases of lippage” would require repair. It is unclear whether the report was referring to tiles or areas of tile when it referred to “cases”; however, Investigator Reed testified that the Registrar of Contractors does not utilize the ANSI standards for tile lippage, which considers factors other than lippage. Rather, he said, the Registrar limits lippage to 1/32”. He stated that Registrar of Contractors investigators use a simple field test to determine whether tiles are out of tolerance. The test involves using two “Frys” cards (or the like) and sliding them along the tile. If one card stops when meeting the next tile but the other card is unimpeded, the lippage is within tolerance because the width of a Frys card is 1/32”. If both cards stop, the lippage is out of tolerance.

Investigator Reed testified that the remaining issues are very minor. It is noted that item 12, excessive grout around the railing in the dining room, is an item that would naturally be fixed when the tile is fixed. Indeed, Respondent offered testimony that, due to the configuration of the railing, it is not possible to tile the area normally so the parties had agreed that Respondent would buy a special tile for those areas and place it when the floors are properly finished.

CONCLUSIONS OF LAW

This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156.

The Citation issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3) and (22).

A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. One such rule in the Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. The Registrar has some general workmanship standards, which it publishes in a booklet entitled Workmanship Standards for Licensed Contractors. According to the version on the Registrar of Contractors’ website, which has been in effect since June 2009, there is a standard applicable to ceramic and natural stone tile. It states, on page 46 of the booklet, as follows:

5. PD Uneven tile. (Lippage)

AT Inherent characteristics of the tile dictate the method of installation. All unusual characteristics of the tile should be explained to the owner or the owner’s agent prior to installation.

CR Contractor should make necessary repairs.

6. PD Uneven Natural Stone Tile (Lippage)

AT Lippage of all manufactured Natural Stone Tiles are to be no greater than 1/32" between individual tiles

CR Contractor should make necessary repairs.

No evidence was offered to establish whether the tile at issue was natural stone tile or not. Respondent did argue that the inherent characteristics of the tile (the fact that it was long and narrow and intended to appear like wood) supports allowing more leniency. However, other than a description of the tile, no basis for allowing greater leniency was offered. It appears that the credit card test is a fair basis for determining whether tile is even enough to avoid trip hazards or an unsightly appearance. Therefore, it is found that all tiles that do not pass the two credit card test were established to be a violation. Further, the other items on the Directive were not disputed to be a violation.

A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Directive from the Registrar without valid justification and within a reasonable period of time. Respondent had 20 days in which to correct the work on the directive and spent most of the time allotted to it in accomplishing the numerous tasks on the Directive. Because the flooring was an item in active dispute and because Respondent was waiting for a separate opinion on it, the floor should not be considered to be a violation of A.R.S. § 32-1154(A)(22). However, the items that Respondent believed were corrected are a violation because it was Respondent’s duty to inspect its worker’s performance before claiming that the work was finished. It is noted that the repairs needed to bring the work into line are very minor.

The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. As of the issuance of this recommendation, the Registrar of Contractors website reflects one complaint against Respondent that is closed, settled or withdrawn. It reflects no open complaints, which appears to be an error because the instant complaint would be expected to be considered an open complaint. Otherwise, Respondent’s license is current and in good standing.

In this case, the Complainants have established that Respondent violated A.R.S. § 32-1154(A)(3) and (22) because there were items in need of correction and not all of the items were corrected properly. However, the tile lippage issue should not be considered a violation because the number of tiles that were out of tolerance was disputed by Respondent and Respondent was actively pursuing another opinion to support the dispute. Respondent argued that the ANSI standard should be used and that additional consideration should be given to the type of tile installed because of its shape. However, the report offered by Respondent does not specify which tiles were out of its measure of tolerance, so even if it was the standard, there is no practical way to put it to use.

The issue with the tile lippage is further complicated by the lack of evidence regarding exactly how many tiles should be corrected, causing further complications for the Recovery Fund to determine the appropriate limits of a claim, should Complainant make a Recovery Fund claim.

Because there was a legitimate dispute over the number of tiles, Respondent should be allowed another opportunity to correct the lippage. As a practical way to determine which tiles must be corrected, it is recommended that the parties utilize the two credit card test. Finally, because the remaining Directive items are minor, it is recommended that Respondent be allowed to correct them as well. If Respondent completes the repairs appropriately, it is recommended that its license be placed on probation for one month, after which, no further discipline be imposed. If Respondent fails to complete the flooring and remaining Directive items, it is recommended that Respondent’s license be suspended for one day.

RECOMMENDED DECISION

Based on the foregoing considerations, it is hereby recommended that Respondent’s License No: 271133 shall be suspended for one day unless, within 40 days of the issuance of the final order in this matter, Respondent completes remaining items of correction, including correcting all tiles that don’t meet the two credit card test noted above. If Respondent completes all items to within the minimum workmanship standards, it is recommended that no suspension shall take place and that Respondent’s license be place on probation for one month. If Complainant denies Respondent reasonable access to complete the repairs, it is recommended that the complaint in this matter be dismissed in its entirety with no imposition of discipline against Respondent.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, November 7, 2016.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors