ALJDEC decisions subject to certification as final

2020A-05123-CHC-ROC · Registrar of Contractors · 2021-05-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Blake Collins,

COMPLAINANT,

v.

Delfino Tile & Stone LLC

License No. ROC 269501,

RESPONDENT.

No. 2020A-05123-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 30, 2021

APPEARANCES: Mark Molique, Esq. appeared on behalf of Complainant Blake Collins. Michael Delfino appeared on behalf of Respondent Delfino Tile & Stone, LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent Delfino Tile & Stone, LLC (Delfino Tile) holds license number 269501 issued by the Registrar of Contractors (Registrar).

2. On or about September 8, 2020, Complainant Blake Collins and Delfino Tile entered into a construction contract wherein Delfino Tile agreed to remodel two bathrooms in Mr. Collins’s home.

3. On or about September 8, 2020, Delfino Tile started work.

4. On or about October 26, 2020, Delfino Tile stopped work.

5. On or about October 29, 2020, Mr. Collins filed a complaint with the Registrar alleging poor workmanship on the part of Delfino Tile.

5. On or about November 25, 2020, Registrar Investigator Albert Bernal conducted a job-site inspection.

6. On or about December 11, 2020, the Registrar issued a Directive to Delfino Tile. The December 11, 2020 Directive provided, in relevant part, as follows:

Dear Respondent:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate

corrective action. 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 January 12th, 2020.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the

suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Herringbone tile wall in master bath lines are crooked.

No pitch was created on bullnose corners which created extremely crooked lines and some tile is butting out 1/4 inch.

Investigator’s Observation: Verified: I noted the tile cuts and grout lines in various areas of the wall (bath tub area wall) where irregular, and not straight.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 2 - Herringbone tile wall in master bath tile is raised in some areas and depressed in others creating an uneven surface for the whole wall.

Investigator’s Observation: Verified: I noted that there was lippage in various (herringbone) tiles installed in the master bathroom tub wall area that exceeded 1/32", and it did not meet the minimum industry standards.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 3 - Schluter cut incorrectly in many areas (edges, window)

Investigator’s Observation: Verified: I noted a piece of Schluter that was installed crooked this piece is located on the top corner of the master bathroom shower tile wall. (by window).

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 7 - Master Shower inlet droupping / bowes

Investigator’s Observation: Verified: I noted that the piece of Schluter was not installed straight and it was bowed towards the middle. This refers to the Schluter piece that runs on top of the niche (horizontal) in the master bathroom shower.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 8 - Window ledge not angled correctly to allow water to run off.

Investigator’s Observation: Verified: I noted that various tiles on the window sill were not installed evenly and there was lippage that exceeded 1/32" not meeting the minimum industry standards.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 11 - Spare bath shower pan - uneven marble stone creates safety issue

Investigator’s Observation: Verified: I noted that various tiles on the shower pan were installed uneven, had lippage that exceeded 1/32", and it did not met the minimum industry standards.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 13 - Spare bath walls grout lines are crooked.

Spare bath walls uneven

Investigator’s Observation: Verified: Verified: I noted the grout lines in the spare shower walls were irregular, and did not lineup or matched with the tile grout lines where walls connected to each other (from wall to wall). Nominal center

of all joints should be straight and even width.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliance Item: 15 - Spare bath inset has raised Mable tiles

Investigator’s Observation: Verified: I noted that there was lippage on various tiles installed inside the niche in the spare bathroom shower. Lippage exceeded 1/32" and it did not meet the minimum industry standards.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 17 - Spare bath grout lines do not match. Some are thin and others wide

Investigator’s Observation: Verified: I noted that the tile grout line were inconsistent, and not straight. Nominal center of all joints should be straight and even width

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 18 - Toilet in spare bath hole in floor

Investigator’s Observation: I noted that there was a gap/ hole in between the floor tile and the toilet.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

Compliance Item: 23 - No hot water

Investigator’s Observation: I noted that there was no hot water in the master bathroom shower. Respondent acknowledged.

Respondent shall correct by the appropriate means.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards

7. On December 18, 2020, Mr. Delfino sent an electronic mail message to Mrs. Collins regarding a time to complete the repair work. Mr. Delfino wrote, ..”Good Morning Dawnell, when would you like me so [sic] come to fix the items you would like repaired. Please let me know, Thanks Mike.” See the Registrar’s Administrative Record, pg. 102. Mr. Delfino did not receive a response from Mrs. Collins. See id.

8. On January 7, 2021, Mr. Delfino notified Investigator Bernal that he testified positive for COVID-19 on “Dec. 28th” and that his “14 days” would be January 11, 2021. See the Registrar’s Administrative Record, pg. 103. Mr. Delfino stated that he would not be able to perform any work by January 12, 2021. See id.

9. On January 12, 2021, Mr. Collins notified Investigator Bernal that he and his wife had been out of town for the holidays and that he wanted to give Mr. Delfino another opportunity to correct the Directive items. See the Registrar’s Administrative Record, pg. 104.

10. On January 20, 2021, Mr. Delfino notified Mr. and Mrs. Collins that he was booked until the end of March 2021. See the Registrar’s Administrative Record, pg. 108.

Mr. Delfino suggested that Ms. and Mrs. Collins use the remainder of the funds owed to Delfino Tile and pay another contractor to complete the work. See id.

11. On or about January 22, 2021, the Registrar issued an Amended Directive to Delfino Tile. Under the Amended Directive, Delfino Tile was granted until February 15, 2021 to complete the Directive items.

12. On January 29, 2021, Mr. Delfino notified Investigator Bernal that he would be unable correct the Directive items until the end of March 2021. See the Registrar’s Administrative Record, pg. 114.

13. Delfino Tile did not correct the Directive items by February 15, 2021.

14. On or about February 24, 2021, the Registrar issued a Citation against Delfino Tile’s license. Through the Directive, the Registrar alleged that Delfino Tile may have violated Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) - R4-9-108(a); namely A.A.C. R4-9-108(a): A.R.S. § 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds that license.

15. Delfino Tile filed a timely answer to the Citation.

16. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

17. On March 29, 2021, the Registrar issued a Notice of Hearing setting the matter for hearing on April 30, 2021. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

18. A hearing was held on April 30, 2021.

19. At hearing, Mr. Collins testified on behalf of himself and presented the testimony of Mrs. Collins. Mr. Delfino testified on behalf of Delfino Tile. Investigator Bernal testified regarding his investigation of the complaint and the issuance of the Directive.

20. Mr. Collins explained that Delfino Tile performed poor work on his home.

21. Mr. Delfino contended that Mr. Collins never told him when he could come to his home to correct the Directive items. Mr. Delfino contended that at the time that the complaint was filed, he had not completed the work and that Mrs. Collins sent him a text notifying him that she was going to go in a different direction. Mr. Delfino argued that he had acquired other customers and was unable to work on Mr. and Mrs. Collins’s home until the end of March 2021.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

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)

3. The Administrative Law Judge may consider Registrar’s administrative

record. See ARIZ. ADMIN. CODE § R4-9-118.

4. The preponderance of the evidence shows that Respondent’s work failed

to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(a).

5. The preponderance of the evidence shows that Respondent failed to correct the Directive items without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s license number 269501 for one day day. It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

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 final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. sections 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, April 30, 2020.

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.

Done this day, May 12, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors