ALJDEC decisions subject to certification as final

2018A-1487-CHC-ROC · Registrar of Contractors · 2018-08-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sue McGee,

COMPLAINANT,

v.

A 1 Tile and Stone Inc,

License No: 218733

RESPONDENT.

No. 2018A-1487-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 26, 2018

APPEARANCES: Sue McGee, Complainant, Alejo Garcia, Respondent and

Qualifying Party, Jack Grimm, Registrar’s Investigator

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

Respondent, A 1 Tile and Stone Inc., (hereinafter “A1 Tile”) is the holder of License Number 218733 issued by the Arizona Registrar of Contractors (Registrar). The records of the Registrar indicate that as of August 10, 2018, is current.

On or about January 20, 2018 , Sue McGee (hereinafter “McGee”) entered into a contract with A1 Tile to remodel a bathroom at the McGee residence. According to Ms. McGee, the oral contract price was $4,200.00

On or about March 29, 2018, the Registrar received a Complaint against A1 Tile from Ms. McGee alleging A1 Tile performed poor work.

The Registrar assigned the Complaint to Investigator Jack Grimm. On or about May 2, 2018, a formal jobsite inspection [“JSI”} was conducted by Mr. Grimm. Investigator Grim noted Both Ms. McGee and Mr. Garcia were present for the JSI.

Respondent has not received (sic) any payments at this time. The agreement was verbal between this contractor and a general contractor that was working on site. His name is Dave Geroux of Geroux Construction LLC He has a current KB-1 #212582. This contractor was on site during the inspection. Homeowner and general contractor have reservations about allowing the respondent to continue (sic) to work and are possibly working towards a financial settlement and may have others complete the work.

Complaint Item 1: Unacceptable work on tiling bathroom. Given a second chance to correct, still unacceptable. Investigator’s Observation: Work is incomplete. Parties state that the respondent (homeowner states unsupervised non-qualified worker) has been working on correcting pooly (sic) performed work and that now the repairs are unacceptible.(sic) Poor work includes crooked and out of line tile, uneven tile with lippage, missing or irregular grout, use of wrong color grout and improperly cut tile. Governing Rule: Workmanship Rule: 4-9-108(A) Poor tile work.

On May 11, 2018, Mr. Grimm issued a Written Directive [hereinafter, “CWO”] to A1 Tile that provided as follows:

You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on May 29, 2018. You are hereby directed to remedy the following violations by the appropriate means: [emphasis added]

Complete tile project per verbal agreement. Correct poor workmanship including crooked and out of line tile, uneven tile with lippage greater than 1/32 inch, missing or irregular grout, wrong color grout and improperly cut tiles.

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

Following the issuance of the CWO and after its deadline, Mr. Grimm received email communication from Ms. McGee on May 30, 20187 indicating that A1 Tile failed correct its poor workmanship as directed by the CWO and the matter was referred to the Registrar for consideration for the issuance a Citation.

The Registrar issued a Citation on May 30, 2018 against A1 tile, charging two (2) possible violations: 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) and A.R.S. § 32-1154(A)(22).

A hearing was held on July 26, 2018 before the Office of Administrative Hearings, an agency independent from the Registrar.

Investigator Jack Grimm testified consistent with his JSI notes that that poor workmanship was evident in A1 Tile’s work - including crooked and out of line tile, uneven tile with lippage greater than 1/32 inch, missing or irregular grout, wrong color grout and improperly cut tiles. Further Mr. testified that when the deadline for compliance with the CWO had lapsed, A1 Tile had not returned to the job site and had performed none of the corrections required by the CWO.

Mr., Garcia, the Qualifying Party chose not to cross-examine Jack Grimm’s direct testimony. At the time for Mr. Garcia’s cross-examination of the Complainant, he stated on the record that “I agree with everything that has been said. So, he stated he chose to waive cross-examination of the Complainant. He testified in Respondent’s Case-in-Chief that he agreed he needed to fix the work he had done at Ms. McGee’s residence. However, he said, his General Contractor told him that he was not allowed to go back to the job site, not even to retrieve his tools, and that the Compliant would call the police if he returned. Mr. Garcia admits that the Complainant did not, herself, bar him from the job nor did she threaten him that she would call the police if he came to the Complainant’s residence. He admitted “I have no proof [for the refusal to let him back to work or that Complainant threatened to call the police]. I relied on my General Contractor’s statements to me. Mr. Garcia stated, “All this is new to me. I made many mistakes. I contacted Ms. McKee too late to be able to get the work done by the deadline on the Directive.”

Susan McGee, the Complainant, testified that she has never had a conversation either with the General Contractor, Dave Geroux, or with anyone from A1 Tile directing Geroux to ban Mr. Garcia from the job site and has never told anyone that if Mr. Garcia showed up at the job site that she would call the police. She testified that the contract amount for A1 Tile’s services was $4,200.00, but she indicated she has not paid any amount to A1 Tile for its work on her bathroom. Ultimately, another sub-contractor of Dave Geroux re-did her tile work.

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on August 10, 2018. Such prior License is neither mitigation of aggravating.

CONCLUSIONS OF LAW

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

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).

As to the issue of poor workmanship, the evidence established A1 Tile’s work tiling the McGee residence bathroom was not perfumed up to acceptable industry workmanship standards. The evidence established that A1 Tile’s Work was incomplete and the where work was done, there were crooked and out of line tile, uneven tiles with lippage, missing and irregular grout, use of wrong color grout and improperly cut tile. Complainant has proven by a preponderance of the evidence that 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).

Complainant has proven, by a preponderance of the evidence, that A1 Tile violated A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Order, the license of A 1 Tile and Stone Inc., License No: 218733 be suspended for two (2) days.

FURTHER IT IS RECOMMENDED a civil penalty in the amount of $500.00 be imposed.

IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, Respondent’s license shall automatically be revoked, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding civil penalty.

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, August 9, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors