ALJDEC decisions subject to certification as final

2017A-5555-CHC-ROC · Registrar of Contractors · 2018-04-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Carey R Smith,

COMPLAINANT,

v.

Champion Built Contracting Inc ,

License No: 113643, 113642 and 298911

RESPONDENT.

No. 2017A-5555-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 30, 2-18

APPEARANCES: Carey R Smith, Complainant, Patricia Smith, Cary C. Smith,

Joe Jenkins, Respondent and Qualifying Party, Joe Stiers, Reposndent, Jack

Grim, ROC Inspector.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

FINDINGS OF FACT

Respondent Champion Built Contracting Inc. [Respondent] is the holder of license numbers 113643, 113642 and 298911 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 28, 2015, Carey R Smith [Complainant] entered into a contract with Respondent to, among other things, remodel a bathroom.

On or about November 3, 2017, the Registrar received a complaint against Respondent from Complainant alleging Respondent performed poor work.

The Registrar assigned the complaint to Investigator Jack Grimm and on December 4, 2017, Mr. Grim conducted a formal jobsite inspection. On December 7, 2017, Investigator Grim issued a written directive to Respondent containing a corrective work order [hereinafter, the “CWO”] as follows:

...prior to 5:00 p.m. on December 26, 2017...You are hereby directed to remedy the following violations by the appropriate means:

Complete tub legs at exterior of shower with best available reasonable color match. The shampoo shelves and soap niche are similar in nature and a reasonable match. No action required with shelves and soap niche. The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

An extension of the CWO deadline was granted to allow for the intervening holidays until 5:00 pm, January 10, 2018.

Following the issuance of the written directive, Respondent attempted on at least three occasions to comply with the CWO, but was unable to comply with the CWO prior to 5:00 p.m. on January 18, 2018.

On January 22, 2018, the Registrar issued a citation against Respondent, charging possible violations of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action)

A hearing was held on March 30, 2018 to determine the merits of the matters alleged in the citation...

Investigator Grim testified that at the formal site inspection on December 4, 2017 both the Complainant and Respondent were present. He observed that the cultured marble tub legs and material surrounding the feet are incomplete. Respondent commented to Inspector Grim that effort was made to install the required product, but the Complainant would not permit Respondent to install the material because Complainant believed the product being installed did not match the product that was already installed around the rest of the tub and wall areas of the bathroom.

Complainant testified that the Respondent had been contracted to remodel two bathrooms on Complainant’s residence and had completed one remodel successfully. But, the second bathroom remodel ran into problems when it was determined that the entire tub needed to be removed and another installed due to a manufacture defect. The tile-work previously performed by the Respondent had to be removed, a replacement tub installed and the bathroom’s cultured tile in the tub area had to be removed and replaced.

Respondent did remove the tub and tile and replaced them with another tub and new cultured marble tile. However, the tile Respondent was using for the area’s feet was not the same color as the rest of the tile. Complainant testified Respondent’s lead foreman, Joe Stiers, came to the Complainant’s home several times with several different tile to install as the feet on the project, but admitted that Complainant would not allow Respondent to install the tile. Complainant stated he told Joe Stiers “Please don’t install the feet because we will have to take the off later to install matching components.”

Respondent’s lead foreman, Joe Stiers, testified that on January 4, 2018, he was sent to the Complainant’s address to perform the work ordered by the CWO. January 4, 2018 was the date the parties had prearranged for Mr. Stiers to install the tile. Mr. Stiers had ordered the tile in advance and brought it with him to the job site on January 4, 2018. Complainant rejected the product that Mr. Stiers brought for installation because the Complainant said it did not match the color of the other surrounding tile. The Complainant directed Mr. Stiers not to install the product. Mr. Stiers said at hearing the he thought the color of the tile [to be installed] was dead on in color with the surrounding tile.

Joe Jenkins, Respondent and Qualifying Party, testified that every reasonable effort was made to accommodate the Complainant’s concerns with the tile color issue. Several different samples were taken to the Complainant at different times, but none of the colors were close enough of a match to satisfy the Complainant’s concerns. Mr. Jenkins revealed that on the date when all of the rest of the tile was delivered to the job site for installation, the installer ran short of tile and could not complete the job on the same day with tile that had been manufactured on the same date and lot. So, additional tile was ordered to complete the job. The additional tile is the tile which the Complainant complains does not match.

Mr. Jenkins explained that the precise color and texture of cultured marble will vary slightly between the pouring of different manufacturing lots so that no two lots are exactly the same in color or texture.

Mr. Jenkins reported that the CWO directed the tile selected for installation for the foot portions of the job was required to be the “...best available reasonable color match...” Using photographs of the Complainant’s bathroom and a sample of the actual product intended to be installed, Mr. Jenkins demonstrated how close in color the photos and the product matched. Mr. Jenkins stated “we tried to complete the Work Order [CWO], but we were just not allowed to do it.”

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The 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.” Evans v. Creative Finishing Services, No. 2016A-1138-ROC (ALJ Decision 7:1–7) (quoting Morris K. Udall, Arizona Law of Evidence § 5 (1960)).

A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Ibid.

The credible evidence presented at hearing established that at the time of the complaint there were items of Complainant’s project that needed to be completed. Specifically, the feet of the bathroom tub remodel required installation of cultured marble tile that was the best available reasonable color match in color with the previously installed tile.

It was shown by a preponderance of the evidence that the color of cultured marble is a function of the manufacture of the product and is not a failure a contractor’s workmanship. In this case, the Respondent acted with reasonable diligence and skill to provide the Complainant with tile for installation that was the best available reasonable color match.

As to the issue of poor workmanship, Complainant failed to meet its burden to establish that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence presented established, by a preponderance, that the Complainant has and continues to refuse access to the Respondent to install the cultured marble tile to comply with the CWO.

The preponderance of the evidence does not show that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22) by failing to comply with the Directive because Complainant will not allow Respondent access to do the required work.

.

RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of this Order, the Registrar shall dismiss the complaint filed by Carey R Smith and then close this case.

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 10, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors