ALJDEC decisions subject to certification as final

2016A-4661-CHC-ROC · Registrar of Contractors · 2017-04-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ghassan and Rosa Sankari,

COMPLAINANTS,

v.

Lowe's Home Centers LLC,

License Nos: 302577 & 291645,

RESPONDENT.

No. 2016A-4661-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 18, 2017

APPEARANCES: Ghassan and Rosa Sankari (Complainants) appeared on their own behalf. Lowe’s Home Centers, LLC (Respondent) was represented by David Sandoval, Esq.

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 (Registrar). 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

Complainants are the owners of a condominium located at 540 North May Street, Unit 1149, Mesa, Arizona 86201.

Respondent holds Arizona Contractor’s License Nos: 302577 & 291645.

On November 21, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had performed poor work when installing a shower door leading to a chipped tile, sloppy and incomplete silicon application, and a loose shower door handle.

The Registrar assigned investigator Mike Crow to investigate the complaint. Crow testified that he arranged to perform an inspection on December 19, 2016 and notified Complainant and Respondent of the time and place of the inspection. Both Respondent and Complainant were present at that inspection. Crow indicated that at the time of an inspection, he substantiated that the shower handle was loose, a tile had a small chip or crack and the silicon had been poorly applied resulting in a glob along on the shower track and a gap in the silicon.

On January 10, 2017, Crow sent Respondent a Directive from the Registrar. The Directive stated in pertinent 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 discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(4) 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 January 25, 2017.

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

Lowes has installed a shower door and cracked a tile.

Respondent shall correct by appropriate means.

Silicon on shower door is very poor and smeared.

Respondent shall correct by appropriate means.

Shower door handle is loose.

Respondent shall correct by appropriate means.

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

Respondent had its subcontractor, CNJ, perform corrective work during the corrective period, which included tightening the shower door handle, grouting the chipped tile with a colored grout, and addressing the silicone issue. Complainants expressed frustration that CNJ did the work on the last day of the corrective period, a fact Respondent attributed to the time it took the Directive to get from the corporate office to the local store.

On January 26, 2017, Crow received an email from Complainants that they were dissatisfied with the corrective work. That same day, Respondent informed Crow that its corrective work was complete.

On January 30, 2017, Crow performed a compliance inspection at Complainants’ home. He found that the grout in the chipped tile did not closely match the tile and that there remained issues with the silicon. Crow agreed that the loose shower door handle had been fixed. Based on these findings, Crow forwarded the matter to the Registrar’s legal department for review.

On February 3, 2017, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 referenced “[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).” Charge 2 specified a violation of A.R.S. § 32-1154(A)(22), namely “[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.”

At hearing, Respondent admitted that CNJ had chipped a tile and that the decorative silicon could have been applied more uniformly by CNJ. It indicated that it had offered to regrout the chipped tile in a color that more closely matched the existing tile, but Complainants refused and demanded that the tile in the entire condominium be replaced since they had no excess tile and the existing tile could not be found or matched by die lot.

Complainants both testified that they had experience in the construction industry and were frustrated that Respondent did not take their complaints seriously and act expeditiously to correct its subpar work on their shower. Complainants raised concerns over water damage due to the gaps in silicon and maintained that regrouting the chipped tile would not suffice to fix the problem.

Crow clarified that, in his view, regrouting the chipped tile with a grout color that closely matched would constitute correcting the workmanship deficiency of the chipped tile by appropriate means. He also testified that he saw no evidence of water damage in Complainants’ shower. Crow noted that the silicon at issue was decorative.

CONCLUSIONS OF LAW

The Registrar 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.

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).

Undisputed credible testimony established that Respondent via its subcontractor CNJ chipped one tile during its installation of Complainant’s shower door and that CNJ’s decorative silicone application was subpar. Respondent admitted that this was true. Thus, Complainants established Respondent’s work as specified in the Directive 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. Nothing in this finding should be construed as a finding that all of the tile floor in Complainants’ condominium requires replacement. The Tribunal accepts as credible Crow’s testimony that regrouting the chipped tile constitutes an appropriate correction.

An A.R.S. § 32-1154(A)(22) violation is not warranted on these facts given that Respondent appears to have made repeated efforts to comply with the Directive and although it may not have completed all corrective work during the Directive period, it intended to do so.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License Nos: 302577 & 291645 for a period of one (1) day.

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, April 21, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors