ALJDEC decisions subject to certification as final

2020A-05123-RFA-LS-ROCRES · Registrar of Contractors · 2023-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Blake Collins and

Dawnell Smith,

COMPLAINANTS,

Delfino Tile & Stone, LLC,

License No. ROC 269501,

RESPONDENT.

No. 2020A-05123-RFA-LS-ROCRES

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 27, 2023

APPEARANCES: Assistant Attorney General Seth Hargraves represented the Arizona Registrar of Contractors. Mark Molique, Esq. represented Complainants Blake Collins and Dawnell Smith who were present. Michael Delfino appeared on behalf of Respondent Delfino Tile & Stone, LLC. Doug Ulmer appeared as a witness for the Arizona Registrar of Contractors. Jake Willis appeared as a witness for Complainants.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (“Registrar)” issued License Number 269501 to Delfino Tile & Stone, LLC (“Respondent”).

On or about October 29, 2020, the Registrar received a Complaint against Respondent from Blake Collins and Dawnell Smith (“Complainants”) alleging poor work with respect to Respondent’s contracted scope of work which included the remodel of two bathrooms.

As a result of the Complaint, the Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and A.R.S. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In her May 12, 2021 Decision, Administrative Law Judge Velva Moses-Thompson considered Respondent’s arguments and concluded based upon a preponderance of the evidence that Respondent violated the charged provisions of this State’s contracting laws.

On May 18, 2021, the Registrar issued a Final Administrative Decision and Order accepting the May 12, 2021 Decision and imposing a one day suspension, as well as a $250.00 civil penalty upon Respondent’s license. The effective date of that Order was June 27, 2021. Respondent did not appeal the Final Administrative Decision and Order.

Complainants thereafter filed a claim with the Residential Contractors’ Recovery Fund (“the Fund”) to recover the cost of performing the corrective work. As part of the claim process, Complainants submitted bids from three different contractors that Complainants had received to perform the repair to the project.

The Registrar issued a Notice of Administrative Award, finding that Complainants’ actual damages were $22,082.00. Respondent requested a hearing. Complainants did not contest the amount of the administrative award. The Registrar referred the matter to the Office of Administrative Hearings for an evidentiary hearing.

A hearing was held on April 27, 2023.

Hearing Evidence

The Written Directive from the Registrar specified that:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A). . . .

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.

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.

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).

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.

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.

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.

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.

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.

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

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.

Compliance Item: 23 - No hot water

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

All errors in original.

Respondent did not perform any of the required corrective work notwithstanding an extension in which to do so.

Doug Ulmer, Legal Assistant II and Claims Reviewer for the Fund, testified that he reviewed the Complaint, the Written Directive, the Administrative Law Judge Decision regarding the underlying Complaint, the parties’ contract, the payments made by Complainants, the letter and award from Respondent’s bonding company, the deed to the property, the county assessor’s records, and the bids submitted by Complainants, in determining that Complainants were eligible to file a claim with the Fund and in calculating Complainants’ actual damages.

Mr. Ulmer determined upon his review, that Complainants owned and occupied the home when they entered into the contract with Respondent, when they paid Respondent, and when the work was performed by Respondent. Also, Respondent’s license was disciplined as a result of Complainants’ Complaint.

Mr. Ulmer testified that the Registrar requires a complainant to file a claim with a respondent’s bonding company as a prerequisite to obtaining a payout from the Fund. Complainants did so and received a $4,250.00 payment from Respondent’s bonding company.

Mr. Ulmer testified that his calculations took into account the contract price of $18,801.42 and the payments made toward the contract price in the amount of $18,470.42, and concluded that there was a remaining balance on the contract in the amount of $331.00.

Mr. Ulmer testified that in his experience, contractors that bid to repair another contractor’s work, “don’t want to touch a contractor’s poor work, so most of the time, [they will] demo the original work and start from scratch.” However, if such bids are deemed excessive or unnecessary by the Registrar, the Registrar requests a homeowner to submit additional bids that are “more in line with the work that needs to be done.”

Mr. Ulmer testified that the initial Notice of Claim for Administrative Award dated June 15, 2022, was quashed after the parties submitted additional information and the Registrar conducted a further review. Thereafter, the December 8, 2022 Notice of Claim for Administrative Award giving rise to the instant proceeding, was issued.

Complainants submitted three estimates for completion of the project to the Fund. The estimate from Nu Wavz Home was in the amount of $49,224.96. The bid from Affordable Bathrooms was in the amount of $28,289.81. The bid from Level Build was in the amount of $22,983.00. Mr. Ulmer concluded that the lowest bid in the amount of $22,983.00 was appropriate as it was most in line with the scope of work contained in the parties’ contract and the corrective work required pursuant to the Written Directive. Mr. Ulmer testified that there is “no way to repair crooked tiles without starting over again,” and that eight of the eleven items ordered to be repaired pursuant to the Written Directive required demolition and re-installation. Mr. Ulmer testified that the bid from Level Build addresses the tile issues and that if the Registrar determined that it was excessive, that bid would have been excluded.

Mr. Ulmer testified that he utilized the bid from Level Build in the amount of $22,983.00 and added Traditional Door, LLC’s invoice in the amount of $3,680.00 for the glass enclosures, which calculated to $26,663.00, then subtracted the $331.00 contract balance, as well as the $4,250.00 Complainants received from Respondent’s bonding company, which resulted in a calculation of $22,082.00 for the proposed award from the Fund.

Jake Willis, owner of Level Build, testified on behalf of Complainants. Mr. Willis testified that the areas of tile that were uneven needed to be removed, and therefore, a larger scope of work was created. Mr. Willis further testified that Level Build would only warranty its work if it removed and replaced Respondent’s work. Mr. Willis explained that new glass panel doors were necessary because the original doors were fabricated to fit the shower as it was constructed by Respondent, and that in the process of re-building, measurements change, and therefore, the previous doors can no longer be used. Also, the doors are tempered glass and therefore, cannot be modified, as they would shatter. Mr. Willis further clarified that the cost of a new bathtub was not included in the bid, however, the bathtub was referenced because it needed to be reset after moving it out of the way.

Mr. Willis testified that all the work in Level Build’s bid has been completed, including demolishing the showers down to the studs, installing shower pans, installing 12 x 24 inch marble tile, installing the drains, removing and re-constructing the shower benches, and replacing the shower doors. Level Build did not perform any work to the bathroom floors. Mr. Willis testified that the tile Complainants chose to use was more expensive than the $4.00 allowance in the parties’ contract and was billed at an additional cost to Complainants to keep in line with the parties’ original contract.

Ms. Smith testified that the glass shower doors had to be re-fabricated as they became unusable because the measurements were taken based upon what was constructed by Respondent and Level Build had to demolish that work and re-construct.

Mr. Smith also testified that the original shower doors could not be reused because they were manufactured taking into account the measurements with the tile as installed by Respondent, as well as the walls, shower pan, and bench, which all had to be removed and replaced.

Michael Delfino, Respondent’s owner, asserted that of the eleven items Respondent was ordered to correct, “not one needed demo and redo,” although he “understands other contractors don’t want to take on [another contract’s work].” Mr. Delfino asserted that all of the corrective work was “cosmetic.” Mr. Delfino further testified that the balance due on the parties’ contract is actually $2.879.00, and that Complainants would not be held liable by Traditional Door, LLC for the balance due for the old shower doors. However, Mr. Delfino did not establish the foundation for or authenticate the documentary evidence he provided, and further, Complainants were required to pay for new shower doors and have not received any confirmation from Traditional Door, LLC that they are not responsible for the balance for the original doors.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132(A) provides that “[t]he residential contractors' recovery fund is established, to be administered by the registrar, for the benefit of a claimant damaged by an act, representation, transaction or conduct of a residential contractor licensed pursuant to this chapter that is in violation of this chapter or the rules adopted pursuant to this chapter.” The Registrar’s final decision in the underlying workmanship case giving rise to the instant matter establishes that Respondent’s work violated the sections of A.R.S. § 32-1154(A) that were charged in the Citation.

For the purposes of an award under A.R.S. § 32-1132(A), A.R.S. § 32-1133.01(B) provides as follows:

An award from the residential contractors' recovery fund may not exceed the actual damages suffered by the claimant as a direct result of a contractor's violation. Actual damages:

May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.

Must be established by bids supplied by or the value of work performed by a person that is licensed pursuant to this chapter if the person is required to be licensed pursuant to this chapter.

When the Registrar has calculated the amount of a complainant’s compensable damages and proposed a payout from the Fund to which s/he is entitled, the calculation is a prima facie showing of the amount that the complainant is entitled to recover as a payout from the Fund. In this case, Respondent requested a hearing challenging the Recovery Fund payout.

“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.”

After review of all the evidence, the Tribunal concludes that Complainants are eligible for an award from the Fund and that the award proposed by the Fund accurately reflects Complainants’ actual damages. Accordingly, Complainants are entitled to a payout from the Fund in the amount of $22,082.00.

RECOMMENDED ORDER

In view of the foregoing, IT IS ORDERED that on the effective date of the final Order in this matter, the Residential Contractors’ Recovery Fund shall pay $22,082.00 to Complainants Blake Collins and Dawnell Smith.

IT IS FURTHER ORDERED that under A.R.S. § 32-1139(B), the Registrar shall charge $22,082.00, plus interest at a rate of ten percent a year, to Respondent Delfino Tile & Stone, LLC’s License Number 269501.

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 forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, May 11, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

[email redacted]

Delfino Tile & Stone, LLC

[email redacted]

Mark Molique

Molique Law, PLLC

[email redacted]

Blake Collins

Dawnell Smith

[email redacted]

Seth Hargraves

Assistant Attorney General

[email redacted]

By: OAH Staff