ALJDEC decisions subject to certification as final

2019A-04469-CHC-ROC · Registrar of Contractors · 2020-09-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Vicki Bacs,

COMPLAINANT

StoneFace Creations LLC,

License No. 227287,

RESPONDENT

No. 2019A-04469-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 15 and August 24, 2020

APPEARANCES: Vicki Bacs on her own behalf; Bruce Ross for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On April 20, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on May 21, 2020 at the Office of Administrative Hearings. The matter was continued and the hearing was conducted on July 15 and August 24, 2020.

The Notice of Hearing shows that the hearing was set to consider the charges made in the complaint and citation that were served on Respondent StoneFace Creations LLC on January 27, 2020. Through the Notice of Hearing, ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license number 227287 issued by ROC.

In October 2017, Complainant Vicki Bacs hired Respondent to install travertine tile at a house that Ms. Bacs rents out as an Airbnb.

On September 5, 2019, Ms. Bacs filed with ROC a complaint against Respondent alleging poor work on Respondent’s part.

Ms. Bacs appeared and testified at the hearing; she also presented the testimony of Steve Nelsen, ROC’s assistant chief of investigations, and David Bales. Respondent presented the testimony of Bruce Ross, a member of the LLC.

ROC investigator Jack Grimm, who was assigned to investigate Ms. Bacs’ complaint, also testified.

The job included three areas of tile: the edges, the pool coping, and the field.

Thinset is used under the edge tiles and the coping tiles to secure them to base material, but an epoxy-type sealant may be used instead of thinset.

The edge tiles get grout in the joints, but the coping tiles do not (the joints are too small to be filled).

The tiles in the field are laid on a level surface, but are not adhered to that surface. Bedding sand is often used to create the level surface required for the field tiles, but sand is not required.

The field-tile joints are filled with polymeric sand that will harden after a few days. The poly-sand helps stabilize the field tiles, but it is not like grout, and it often takes more than one application of sand to achieve the desired result, especially if the patio is being washed.

Mr. Grimm conducted a jobsite inspection on October 2, 2019 and a compliance jobsite inspection on February 13, 2020. ROC’s Mr. Nelsen also attended the compliance jobsite inspection.

Prior to Mr. Grimm’s October 2nd jobsite inspection, Ms. Bacs had marked 40 to 50% of the tiles with blue tape. Mr. Grimm found that not all of the tiles Ms. Baca marked were deficient.

Mr. Grimm did not inspect every marked tile because he observed that there were workmanship deficiencies and he did not find it necessary to identify every instance.

In his notes, Mr. Grimm identified the issues raised by Ms. Bacs using the numbers from her complaint.

Issues 1 (base not sound), 2 (loose tiles in the field) and (6) (missing fill sand)

At Ms. Bacs’ property, Respondent laid some of the field tiles on existing concrete without sand, and some tiles were laid on sand that was being used to improve the drainage in that area.

At his jobsite inspection, Mr. Grimm found that there were about twenty tiles in the field that rocked.

Mr. Grimm testified that it is not uncommon for tiles set on concrete to rock, and there will be movement or play in those tiles. Whether a particular job has too much movement is a judgment call for the investigator to make.

Mr. Grimm found that there were joints in the field that did not have enough sand. In his jobsite investigation notes Mr. Grimm wrote:

I believe the issue here is that since this property is a rental the cleaners are regularly hosing off or power washing the patio and rinsing out the sand. Observation shows no dirt or sand in any of the little voids of the travertine stone and that means water is regularly being used to clean. Since this is the first time I am seeing this I will ask the contractor to re-sand and make a note to the property owner not to wash sand out of tiles.

Underscoring added.

At the hearing, Mr. Grimm explained that power washing the tiles would not be considered misuse or abuse.

Ms. Bacs denied that the tiles had been power washed, but did not address whether they were being cleaned with a hose.

Mr. Ross was of the opinion that the tiles had been power washed and that this had washed out sand from under the tiles and was the cause of any rocking in the tiles. But even if some tiles had had the sand washed out from under them, Mr. Grimm observed movement in tiles that were laid directly on the concrete, which are the tiles that he identified as deficient.

Mr. Bales did not agree that power washing the tiles would remove the bedding sand, but he acknowledged that it could wash the polymeric sand from the joints.

Issue 3 (deteriorating tiles)

At the jobsite inspection, Mr. Grimm observed about a dozen tiles that were deteriorating or flaking; this is not uncommon with travertine and is not a workmanship violation.

Although the deteriorating tiles are not the result of poor workmanship, during the jobsite inspection Respondent agreed to replace these tiles anyway. Consequently, Mr. Grimm included in ROC’s Directive an order for Respondent to do so.

Item 4 (clean-up of cement)

At the jobsite investigation, Mr. Grimm observed that at the west edge of the patio below the first step there was an area in which some cement had to be cleaned from the tile. Mr. Grimm considered this to be a workmanship violation.

Item 5 (grout required at edge tiles)

At the jobsite inspection, Mr. Grimm observed that grout had been used at the steps and at the pool edge-coping and that there were areas in which the grout needed to be reapplied. Mr. Grimm considered this to be a workmanship violation.

Items 7 (pool edge tiles loose) and 8 (step tiles loose)

At the jobsite inspection, Mr. Grimm observed that there were several loose edge tiles and that these tiles needed to be secured for long term reliability. Mr. Grimm considered this to be a workmanship violation.

At the jobsite inspection, Mr. Grimm observed that there were several loose tiles at the steps and that these tiles needed to be secured. Mr. Grimm considered this to be a workmanship violation.

At the hearing, Mr. Grimm confirmed that he had seen loose tiles, but his testimony was to the effect that the problem was not widespread.

On October 17, 2019, ROC issued to Respondent a Directive that provided in part:

*** You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on November 5, 2019.

***

DIRECTIVE REQUIREMENTS

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

1. Complaint Item 2: Tiles move/shift when walked on.

Correct loose or shifting tiles and re-sand joints.

2. Complaint Item 3: Deteriorating / defective tiles. – (many were replaced in 2018), tiles turning to powder.

Replace deteriorating tiles as agreed.

Note: This is not a workmanship issue, it is a material issue.

3. Complaint Item 4: Cement left on stone from previous repair.

Clean location at west side of patio below step that has cement material on surface.

4. Complaint Item 5: Missing grout – from previous repair / other issues.

Correct missing grout at larger pavers located at pool edge and steps.

5. Complaint Item 7: Pool edge tiles loose / not secure (some fell off previously and were repaired.)

Secure pool edge tiles for long term reliability.

6. Complaint Item 8: Step tiles are loose / not secure – pop up when walked on.

Secure step tiles for long term reliability.

NOTE: Regular hosing off with water or power washing patio will wash out sand filler and loosen tiles.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

1. Complaint Item 1: Base that supports the patio is not solid... (tiles shift and move under your feet. Many have been lifted up and sand “added” and put back down, in previous repairs, but they keep getting bad again, it is a cycle. The base the tiles were put on is not solid because the tiles do not stay firm or solid and or new tiles keep shifting/moving. I believe many of the tiles are just sitting directly or almost directly on cement that is not perfectly level and neither are the tiles. Other tiles I believe the sand is/was not compacted.)

Complaint item #1 and #2 are the same issue and addressed above.

2. Complaint Item 6: Fill sand was not done well during original construction – fill sand voids throughout patio.

Addressed above with complaint item #2 as stated to re-sand joints.

Respondent contacted Ms. Bacs to schedule the repairs ROC ordered it to make, but there were scheduling issues occasioned by Ms. Bacs’ desire to accommodate her tenants’ use of the property, by the need for the pavers to be completely dry after any rain, and in one instance, because Mr. Ross was ill.

Although scheduling remained an issue, Respondent performed remedial work on at least three dates in December 2019 and January and February 2020.

On February 4, 2020, Respondent was at the site and Ms. Bacs and Mr. Ross had an argument that resulted in Respondent leaving the site without completing all the work. The parties disagree as to whether Respondent left of its own volition or whether Ms. Bacs ordered them off the property.

Mr. Grimm conducted his compliance jobsite inspection on February 13, 2020. Mr. Grimm determined that Respondent had not corrected the issues set out in complaint items 2, 4, 5, 7 or 8.

On February 26, 2020, ROC issued to Respondent its citation alleging that Respondent may have violated Ariz. Rev. Stat. subsection 32-1154(A)(3)(i.e., R4-9-108(A)) and subsection (A)(22).

At the hearing, Mr. Grimm testified to the effect that there were deficiencies in Respondent’s work, but his overall opinion was that there were no systemic problems. His opinion was that the work Respondent not completed by the compliance inspection was not extensive and could be repaired.

ROC’s Mr. Nelsen, who was at the compliance jobsite inspection, had no criticism related to Mr. Grimm’s work or opinions in the matter.

Mr. Ross acknowledged that additional repair work was required and provided that Respondent was willing to make those repairs and was willing to pull up and reset every tile to accommodate Ms. Bacs. He estimated that it would take about one or two days to complete the work.

Ms. Bacs was unwilling to have Respondent return to the site because Respondent’s previous attempts to correct the work, before and after she filed her complaint, had been unsuccessful.

Ms. Bacs testified that Respondent’s crews had not been properly supervised and were not putting in more than a few hours at a time when they came to make repairs.

Mr. Ross testified to the effect that he rarely went out on jobs, but got involved in this one because Respondent’s crews were unwilling to work for Ms. Bacs because she would hover over them and direct them on how to do their jobs.

In an email to Mr. Grimm, Ms. Bacs wrote that she had to monitor and manage every repair, and that every time she turned her back something went wrong or new damage was done.

Ms. Bacs testified to the effect that all she was asking was that the work be properly completed. But Mr. Grimm’s and Mr. Nelsen’s testimony show that most of the work was properly completed and that the remaining work could be completed fairly easily.

ROC’s Substantive Policy Statement 2017.01 provides that “Licensed contractors are expected to have sufficient professionalism to deal with difficult clients and situations. Source: Evans v. Creative Finishing Services, No. 2016A-1138-ROC (ALJ Decision 7:24–26).”

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

*****

3. Violation of any rule adopted by the registrar.

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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. The written directive must set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance may not be less than fifteen days from the date of issuance of the directive....

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

The preponderance of the evidence shows that Respondent violated Ariz. Admin. Code section R4-19-108(A) because at Mr. Grimm’s jobsite inspection he found that there was missing grout, loose edge and step tiles, field tiles that rocked, and cement that required clean-up (complaint items 2, 4, 5, 7 and 8).

The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22). Each party was responsible for delays in scheduling the corrective work, but ultimately Respondent had three opportunities to make corrections between December 2019 and February 2020, but failed to do so.

Because Respondent has violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22), ROC has authority to discipline its license, including imposition of a civil penalty.

Mr. Grimm’s testimony as affirmed by Mr. Nelsen shows that the workmanship deficiencies are minor and easily corrected. In mitigation is that Respondent stood ready to complete the repairs, was willing to go beyond what ROC ordered by pulling up every tile, and was willing to replace the deteriorated tiles. Also in mitigation is that Respondent has been licensed since November 2006 and ROC’s website shows no discipline, no resolved or settled cases, and only this one open case.

Considering the facts and circumstances of this matter, Respondent’s license should be suspended for one day and a civil penalty of $250.00 should be assessed against it.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors suspend StoneFace Creations LLC’s license number 227287 for one day;

IT IS FURTHER RECOMMENDED that the Registrar of Contractors assess against StoneFace Creations LLC a civil penalty of $250.00.

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 is forty days after the date of that certification.

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-137160-45720000Done this day, September 14, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000