ALJDEC decisions subject to certification as final
2017A-5164-CHC-ROC · Registrar of Contractors · 2018-05-31
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Nicholas C Palumbo,
COMPLAINANT,
v.
Tucson Restoration LLC dba,
Rainbow International of Tucson,
License No: 288574
RESPONDENT.
No. 2017A-5164-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 11, 2018, 8:30 A.M.
APPEARANCES: Complainant Nicholas Palumbo appeared on his own behalf; Patrick J. Lopez, Esq., appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Tucson Restoration LLC dba, Rainbow International of Tucson (Respondent), is the holder of License Number 288574 issued by the Registrar of Contractors (Registrar).
2. On or about October 12, 2017, Nicholas Palumbo (Complainant), filed a Complaint against Respondent with the Registrar alleging poor work in connection with flooring work performed by Respondent at Complainant’s residence in Tucson, Arizona.
3. Upon completion of an inspection performed by the Registrar on November 22, 2017, the Registrar issued a Directive, dated November 24, 2017, requiring Respondent to correct various alleged deficiencies in Respondent’s work by December 13, 2017, as follows:
1. “Tile work in family room, living room, and master bedroom, and den, is substandard, with damaged and mis-aligned tiles.” This was described by the complainant to be lippage, and chips in the tiles.
2. “Same tile work was to have been done as were other rooms – but was done with different grout spacing/coloring.” This was described by the complainant to be the grout lines in the living room, family room, and master bedroom being wider than the grout lines in the guest bedroom. Grout lines for complete project are to be even width.
3. “The grout depth is also extremely inconsistent.”
4. After another inspection was conducted on January 17, 2018, a second Directive was issued, dated January 18, 2018, requiring Respondent to correct the same alleged deficiencies in Respondent’s work by February 8, 2018.
5. When a compliance inspection was conducted on February 26, 2018, by the Registrar and it was observed that no corrective work had been done, the Registrar then issued a Citation to Respondent, dated March 2, 2018, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
b. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include disclosure in contract and violation of A.R.S. § 32-1124(B) for failure to include license number);
c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for May 11, 2018, at 8:30 A.M. Complainant Nicholas Palumbo testified on his own behalf and presented the testimony of Vicki Palumbo; Dave Smith, Managing Member of Respondent, testified on behalf of Respondent. John Smith, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 9 and Respondent’s exhibit numbers 1 - 22.
7. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that with respect to the rooms Respondent tiled, the width of the grout joint in the back guest bedroom (approximately 190 square feet) (guest room) is 1/8 inch and the width of the grout joint in the living room, family room, master bedroom, and den (approximately 1,000 square feet) (four rooms) is 3/16th. The Investigator testified that workmanship standards required even width of grout, and he testified he interpreted this to include even width from room to room as opposed to a 1/16 inch difference between rooms. He stated there is no grout width inconsistency in any individual room and that the only deviation is between the width of the grout joint in the guest room and the four rooms. He further stated that this Directive item could be corrected by redoing the guest room tile to match the width of the grout joint in the other four rooms.
8. He further testified that he measured lippage between tiles in the four rooms that exceeded 1/32 inch and observed some chipped tiles. He testified that the Workmanship Standards for Licensed Contractors (Respondent’s Exhibit 20) dictate that lippage be less than 1/32 inch. He also testified there was no lippage in the guest room tile.
9. The Investigator also testified that Respondents contracts (Respondent’s Exhibit 3, 4) did not include Respondent’s license number or the required disclosure regarding complaints to the Registrar. There was no mention of grout joint width in the contracts.
10. Complainant testified that Respondent first tiled the guest room in approximately September 2016 with tile purchased by Complainant He stated he was never asked to approve the tiling in the guest room or decide grout width at any point but was happy with it in any event once it was installed. He later decided to retile the rest of the home with the same tile as the guest room, and he went on vacation when the other four rooms were being tiled by Respondent. He stated that when he returned, he noticed the variation in grout joint width between the guest room and the other four rooms. He stated he had wanted the tile in the other four rooms to look like the tile in the guest room.
11. Complainant further testified that there were about 30 tiles with lippage that need to be replaced. Complainant presented into evidence a bid to redo the 1,000 square feet of tile (Complainant’s Exhibit 1) of the four rooms. The bid reflects a specification of 1/16 inch grout width, which Complainant testified he was agreeable to, rather than the 1/8 inch grout width of the guest room.
12. Vicki Palumbo, wife of Complainant, testified on behalf of Complainant that when she returned from vacation, she was struck by the grout lines and that she had wanted the same grout line as the guest room. She further stated that there was never any disclosure about possible lippage between tiles.
13. David Smith on behalf of Respondent testified that he explained the difficulty in laying the tile Complainant had purchased. He further testified that there is a different tolerance for deviations between natural stone tile and ceramic tile. He argued that according to the Workmanship Standards for Licensed Contractors, there is no lippage standard for non-natural stone tile (#5, p.46) and that the 1/32 inch lippage standard applies only to natural stone tile (#6, p.46). (Respondent’s Exhibit 20). He stated he completed the flooring in January 2017 with exception of the master closet and returned in July 2017 to repair some tiles but Complainant wanted more than 4 tiles replaced.
14. Mr. Smith stated there is no standard for ceramic tile, which is the tile he installed for Complainant, because a perfect tile cannot be baked. He stated that based on American National Standards Institute (ANSI) standards, the permitted lippage for ceramic tile would be up to slightly greater than 1/16 inch. (Respondent’s Exhibit 19). He further stated only five to ten tiles in the four rooms have lippage over 1/16 inch and believed only four tiles needed to be replaced. He further stated that there was uninstalled tile left at the site and estimated about 15-20 boxes with 10 tiles to the box. Complainant testified that he counted 16 5.5 inch-wide tiles and 40 8 inch-wide tiles left on site and stated that one of the sizes is no longer available.
15. Mr. Smith further testified that in July 2017, months after the job was complete, the only discussion with Complainant regarding grout was the low spots or the need to have grout built up in some areas, but not about grout width.
16. He further testified the tiling of the other four rooms was accomplished by taking the measurement of a small area in the completed guest room and replicating that in the first of the other four rooms which should have ensured that the grout width would be the same. He stated he does not believe any difference in grout width is visible and if there is a difference, it is not more than 1/32 inch. He further stated the guest room does not adjoin the other four rooms and that they are separated by a pre-existing hallway tile floor not installed by Respondent. There was no evidence presented as the width of the grout joint, if any, of this hallway tile.
17. He further testified that after the Directive was issued, Respondent proposed to Complainant to replace the tile in the guest room (190 square feet) so as to match the grout joint width in the other four rooms (1,000 square feet), replace the tiles that had excess lippage, and build up the low or missing grout. He stated Complainant rejected the proposal and wanted the tile in the other four rooms to be replaced to match the guest room.
18. He testified that he has now included his ROC license number on his contracts as well as the disclosure regarding complaints to the Registrar.
CONCLUSIONS OF LAW
1. 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.
2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, a Complainant 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).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following
3. Violation of any rule adopted by the registrar.
...
12. Failure in any material respect to comply with this chapter.
...
22. 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.
5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “A contractor shall perform all work in a professional and workmanlike manner.”
6. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with the chapter, A.R.S. § 32-1158(A) requires in pertinent part that 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 the following information:
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....
7. As it relates to A.R.S. § 32-1154(A)(12) concerning failure in any material respect to comply with the chapter, A.R.S. § 32-1124(B) requires in pertinent part:
The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter.
8. Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner that could be a potential violation of A.R.S. § 32-1154(A)(3). There was little dispute that the width of the grout joint in the guest room was different than the width of the grout joint in the other four rooms. Respondent argued that any difference was not noticeable and the guest room in any event does not directly adjoin the other four rooms; Complainant argued that it was very noticeable. The Tribunal accepts the testimony of the Investigator that the grout joint width of the guest room was different from the grout joint width of the other four rooms and therefore uneven.
9. Concerning workmanship standards as it relates to excess lippage, the Workmanship Standards for Licensed Contractors does not specify a lippage standard for non-natural stone tile. The Investigator testified the Registrar applies the 1/32 inch lippage standard for natural stone also to non-natural stone. Respondent argued that an ANSI standard should be applied, but there was no evidence presented that such a standard has been adopted or applied in Arizona. Regardless of what lippage may or may not be permissible, the Workmanship Standards state that with respect to non-natural stone tile, unusual characteristics of tile should be explained to the owner prior to installation. While the evidence reflected that Respondent told Complainant of the difficulty in installing the tile Complainant purchased, there was no evidence presented that Respondent informed Complainant of the unusual characteristic that lippage could exceed 1/32 inch which may have been inherent for that type of tile. Accordingly, the excess lippage and the lack of disclosure to Complainant relating thereto does not meet workmanship standards
10. Respondent did not dispute that there were random low spots in the grout in the four rooms.
11. Complainant has presented sufficient evidence to demonstrate a potential violation of A.R.S. § 32-1154(A)(12) for the failure on the part of Respondent in a material respect to comply with A.R.S. § 32-1158(A) regarding the required contents of a contract and of A.R.S. § 32-1124(B) for failing to include the ROC license number (Respondent’s Exhibit 3, 4). However, Respondent submitted evidence that it has since included its license number and requisite disclosure regarding complaints to the Registrar in its contracts.
12. Complainant has failed to present sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to undertake corrective action without a valid justification. The evidence demonstrated that after the Directive was issued, Respondent offered to return to replace the tile in the guest room so as to match the grout width in the other four rooms, replace the tiles with the excess lippage, and build up the low or missing grout. Complainant testified he rejected this proposal because he wanted the tile in the other four rooms replaced to match the guest room tile. The Investigator testified that Respondent’s proposal to replace the guest room tile to match the width of the grout joint in the other four rooms would be an acceptable corrective measure. In that Complainant instead wanted the tile entirely replaced in the four rooms, he rejected the other repairs to the lippage and low grout in the four rooms. Therefore, the Tribunal finds that Complainant’s rejection of Respondent’s proposal is a valid justification for the failure to proceed with corrective work.
13. Even though Complainant has established a violation of workmanship standards, the inability of Respondent to proceed with corrective action due to Complainant’s rejection of Respondent’s proposed corrective work negates a finding of a violation of § A.R.S. § 32-1154(A)(3).
14. Accordingly, Complainant has not established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3), A.R.S. § 32-1154(A)(12), and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that the Citation and Complaint in Case No. 2017A-5164 shall be dismissed.
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 31, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors