ALJDEC decisions subject to certification as final
2019A-05053-CHC-ROC · Registrar of Contractors · 2020-04-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jaroslaw Suchanek,
COMPLAINANT,
v.
Perfect Tile Inc. Of Fountain Hills,
ROC License: ROC 158704,
RESPONDENT.
No. 2019A-05053-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 12, 2020
APPEARANCES: Complainant Jaroslaw Suchanek appeared on behalf of himself. Donald R. Alvarez, Esq. appeared on behalf of Respondent Perfect Tile Inc. Of Fountain Hills.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
Respondent Perfect Tile Inc. Of Fountain Hills (Perfect Tile) holds license
number 158704 issued by the Arizona Registrar of Contractors (Registrar).
On or about August 20, 2019, Complainant Jaroslaw Suchanek and Perfect Tile entered into a residential remodeling contract wherein Perfect Tile would install new tile throughout Mr. Suchanek’s home and remodel his bathroom.
In August of 2019, Perfect Tile started work.
In September of 2019, Perfect Tile stopped work.
On or about October 7, 2019, Mr. Suchanek filed a complaint with the Registrar alleging poor work and abandonment on the part of Perfect Tile.
On or about November 7, 2019, Registrar Investigator Wes Ellington conducted a job site inspection.
On or about December 4, 2019, the Registrar issued a Directive to Perfect Tile that provided, in relevant part, as follows:
After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); 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 the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on December 23, 2019.
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DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item 2: Ent.floor - tile spacing incorrect, uneven & varies along the lines; contractor did not use spacers.
Investigator’s Observation: In a few places, the grout line is very minimal, even nonexistent. These areas will need to be corrected.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 8: In some areas excessive gaps under baseboards.
Investigator’s Observation: Any excessive or inconsistent gaps under baseboards should be corrected.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 13: Bedroom - closet railing installed reversed.
Investigator’s Observation: Verified. This will need to be corrected.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 15: Excessive gaps left under the door frames.
Investigator’s Observation: Verified. This will need to be corrected.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 16: Kitchen ceiling needs touch ups after removing blue tape.
Investigator’s Observation: Verified. This will need to be corrected.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 17: Laundry room - wall above the baseboard painted while painting baseboards.
Investigator’s Observation: Verified. There is paint above the baseboard. This will need to be corrected.
Governing Rule: Workmanship Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint Item 1: Living room tile spaces opened with hand saw by the contractor, tile edges chipped, uneven & rough.
Investigator’s Observation: Chipping is very minor and meets minimum workmanship standards.
Governing Rule: N/A, complaint item does not constitute poor workmanship, and meets minimum workmanship standards.
Complaint Item 3: Master bed - tile spaces opened with hand saw by the contractor, tile edges chipped, uneven & rough.
Investigator’s Observation: Chipping is very minor and meets minimum workmanship standards.
Governing Rule: N/A, complaint item does not constitute poor workmanship, and meets minimum workmanship standards.
Complaint Item 4: Shower walls - out of plumb and/or not flat
Investigator’s Observation: The walls are actually very plumb. I see no issue here. The Complainants method of checking for plumb may have caused this assumption.
Governing Rule: N/A, complaint item does not constitute poor workmanship, and meets minimum workmanship standards.
Complaint Item 5: Shower floor - some areas slope away from the drain and towards the door of the curbless shower.
Investigator’s Observation: The area in question has not been finished. The Respondent intends to grind the high area to correct drainage. However, the Complainant doesn’t like the grinding method and worries that the tile will be too thin. This should not be an issue since the tile is not structural, and is only for the finished appearance. If the tile cracks or breaks after the job is finished, then the Complainant may have a valid issue.
Governing Rule: N/A, complaint item does not constitute poor workmanship, and meets minimum workmanship standards.
Complaint Item 6: Per contract - Shower enclosure not installed.
Investigator’s Observation: This has only been held up due to the dispute over the shower pan tile in item 5. The Respondent intends to finish the surround after the tile installation is complete.
Governing Rule: N/A, unable to verify, no evidence to prove or verify complaint item constitutes poor work due to the complaint item being incomplete.
Complaint Item 7: Shower wall tiles not sealed
Investigator’s Observation: The complainant says the shower wall tiles were not sealed, the Respondent says they were sealed 2 times. A test with water was inconclusive due to the porous stone. The water was not beading, but not necessarily absorbed into the tile either.
Governing Rule: N/A, unable to verify, no evidence to prove or disprove complaint item.
Complaint Item 9: Per contract - Master bath mirror not taken down.
Investigator’s Observation: This item is in the contract, however, it is beyond the scope of the Respondent’s license classification and should be removed from the contract.
Governing Rule: N/A, work is out of scope.
Complaint Item 10&11: Other items: contractor walked off the job on 9/18/2019 taking remainder of the tiles. Tile shade/lot that have been installed is not available anymore, which presents another challenge.
Investigator’s Observation: Supplying the materials will be up to the Respondent. This issue does not yet, and may not ever exist.
Governing Rule: N/A, unable to verify, no evidence to prove or disprove complaint item.
Complaint Item 12: Kitchen floor raised that the dishwasher barely fits; had to force the countertop up to fit it.
Investigator’s Observation: The dishwasher was installed by the owner who is not necessarily qualified to do so. The dishwasher is now installed and functional, so no real issue exists.
Governing Rule: N/A, unable to verify, no evidence to prove or disprove complaint item.
Complaint Item 14: Powder room - a hole in the wall left right above reinstalled baseboard.
Investigator’s Observation: The Respondent stated that the Complainant caused this damage while doing the demo work.
Governing Rule: N/A, unable to verify, no evidence to prove or disprove damage was caused by the Respondent.
Complaint Item 18: Shower - the shower head, the valve and the drain not placed in the center of the shower.
Investigator’s Observation: The center of the valve has 20” on the left, and 22” on the right. Moving it to exact center would only be 1” and would be hardly noticeable. Additionally, moving the valve is not in the contract/invoice.
During the time period for compliance with the Directive, Perfect Tile asked Mr. Suchanek when Perfect Tile could come to his home to correct the items listed in the Directive. Perfect Tile informed Mr. Suchanek that it would repair the tiles in the manner that he had proposed a few months before the Directive was issued. Perfect Tile had previously notified Mr. Suchanek that he would remove repair the tiles by implementing the following plan:
Remove the damaged tiles, clean them, and polishing the chipped edge with dry polish wheel, approximately 220 grit.
Re-install the tiles after completing the process described above
Perfect Tile had also informed Mr. Suchanek that the process would remove a minimal amount of material, less than 1/16 of an inch. Mr. Suchanek did not provide Perfect Tile with a date to correct the items because he did not agree with Perfect Tile’s plan.
Mr. Suchanek believed that the tile needed to be removed and replaced with new tile.
Mr. Suchanek requested that Perfect Tile send him a detailed explanation of how he planned to correct all of the items listed in the Directive. Mr. Suchanek would not allow Perfect Tile to correct the tiles in the manner that he proposed.
Investigator Ellington learned that Mr. Suchanek would not allow Perfect Tile
access to his home to make the repairs in the manner that Perfect Tile deemed appropriate. Investigator Ellington notified Mr. Suchanek that Perfect Tile was not required to provide him with a detailed list. Investigator Ellington notified Mr. Suchanek that Perfect Tile was required to repair the work by the method that Perfect Tile deemed appropriate.
On January 17, 2020, the Registrar issued a Citation against Perfect Tile’s
license. Through the Citation, the Registrar alleged that Perfect Tile may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, ROC may suspend or revoke Perfect Tile’s license.
Perfect Tile filed a timely appeal to the Citation.
The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
On February 10, 2020, the Registrar issued a Notice of Hearing setting the
matter for hearing on March 12, 2020. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
A hearing was held on March 12, 2020.
At hearing, Mr. Suchanek testified on behalf of himself and presented the testimony of James G. Woelfel. Perfect Tile presented the testimony of Mr. Eckburg.
Mr. Suchanek contended that it was impossible to correct the work in the way that Perfect Tile proposed. Mr. Suchanek contended that Perfect Tile would have damaged his tiles and violated their agreement by repairing the tile installation in the manner that Perfect Tile proposed. Mr. Suchanek testified to the effect that he had a reasonable expectation that Perfect Tile would install the tile without altering the size of the tile. Mr. Suchanek argued that cutting tile is not a substitute for spacing. Mr. Suchanek contended that Perfect Tile should replace the entire area.
Mr. Suchanek presented the testimony of James G. Woelfel to support his position. Mr. Woelfel has more than 25 years of experience as a tile contractor.
Mr. Woelfel opined that it was not possible to correct the work in the manner that Perfect Tile proposed. Mr. Woelfel asserted that it is not realistic to remove each tile and keep it in one piece. Mr. Woelfel testified to the effect that if such a removal were were possible, he would question the adequacy of the installation. Mr. Woelfel opined that the tile should be removed and replaced.
Mr. Eckburg has worked in the tile installation industry for approximately
35 years. Mr. Eckburg stated that he has built over 100 custom homes and has never received a complaint. Mr. Eckburg contended that Perfect Tile has been licensed with the Registrar since 2000. Mr. Eckburg contended that Perfect Tile could have corrected the work by implementing his proposed plan. Mr. Eckburg explained that Mr. Suchanek would not allow Perfect Tile access to his home to implement his proposed plan.
19. Investigator Wellington provided testimony regarding the investigation of the complaint, the issuance of the Directive, and his correspondence with the parties before the Citation was issued. Investigator Wellington explained that Mr. Suchanek would not allow Perfect Tile to repair the work in the manner that Perfect Tile deemed appropriate.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
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 a preponderance of the evidence. See A.A.C. R2-19-119
3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”
4. The preponderance of the evidence shows that there is potential cause to suspend or revoke Respondent’s license under Ariz. Rev. Stat. section32-1154(A)(3), namely A.A.C. R4-9-108, in the six workmanship deficiencies noted on the Directive. However, construction is not a perfect art and contractors generally must be afforded an opportunity to correct their potential statutory violations before their licenses may be suspended or revoked.
5. The preponderance of the evidence shows that Mr. Suchanek would not allow Respondent access to his home to correct the items listed in the Directive in the manner that Respondent deemed to be appropriate.
6. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, IT IS ORDERED that, on the effective date of the final order in this matter, Complainant Jaroslaw Suchanek’s complaint in Case No. 2019-05053 against Respondent Perfect Tile Inc. Of Fountain Hills’s License No. 158704 shall be dismissed.
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 five days from the date of that certification.
Done this day, April 1, 2020.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors