ALJDEC decisions subject to certification as final
2021A-02269-CHC-ROC · Registrar of Contractors · 2021-11-15
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kenneth W Zobel ,
COMPLAINANT
v.
Jackson Tile and Design LLC
License No. ROC 168442,
RESPONDENT
No. 2021A-02269-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: November 5, 2021
APPEARANCES: Kenneth W. Zobel on his own behalf; Bart Jackson for Respondent
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On October 4, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above captioned matter for hearing on November 5, 2021 at the Office of Administrative Hearings.
Through its Notice of Hearing, ROC alleges that Respondent Jackson Tile and Design LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
Respondent holds license No. 168442 issued by ROC. Bart Jackson and Jennifer Jackson appeared and testified for Respondent, which also presented the testimony of Art Ehman.
Complainant is Kenneth W. Zobel, who appeared and presented the testimony of his wife Yvonne Zobel.
ROC investigator Steve Hammons also testified.
Complainant and his wife hired Respondent to install tile at a house in Tucson. Complainant supplied the tile.
On or about May 21, 2021 Complainant filed with ROC a complaint against Respondent alleging poor work on Respondent’s part.
ROC investigator Mr. Hammons conducted a jobsite inspection on June 24, 2021.
On June 25, 2021, 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 July 30, 2021.
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DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
The contractor should identify all issues regarding tile and tile grout lines and correct by appropriate corrective measures.
Complaint Item 1: “TILES ARE UNEVEN”
Investigator’s Observation: Verified. The complainant pointed out and showed me throughout her entire residence that the tiles have excessive lippage beyond industry minimum standards.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4- 9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 2: “THE VISUAL OF THE FLOOR HAS AN UNEVEN APPEARANCE, TILES HAVE RECTIFIED EDGES AND SHOULD HAVE EVEN SMOOTH
APPEARANCE”
Investigator’s Observation: Verified. The complainant pointed out to me and showed me throughout her entire residence the tile has excessive lippage beyond the industry minimum standards.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 3: TILE ENDS ARE SHARP ON RAISED TILE DUE TO RECTIFIED EDGES “”
Investigator’s Observation: Verified. Same as above
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4- 9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 4: TILE (SOME CORNERS) ARE RAISED WITH A SHARP POINTED CORNER “”
Investigator’s Observation: Verified. Same as above
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 6: “TILES ARE DIFFERENT HEIGHTS THROUGHOUT INSTALLATION”
Investigator’s Observation: Verified. Same as above “Verified” Complaint numbers
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 7: “GROUT MATERIAL DEPTH INCONSISTENT THROUGHOUT, ACCENTUATING TILE INSTALLED UNEVENLY”
Investigator’s Observation: Verified. The complainant pointed out and showed me throughout her entire residence inconsistent tile grout width lines, as well as areas that have grout piled up in corners and areas where grout is cracking and scarcely applied.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 8: “GROUT MATERIAL IS SPARSE IS PLACES”
Investigator’s Observation: Verified. Same as complaint # 7
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 10: “NOT ABLE TO MOVE FURNITURE OR ITEMS WITHOUT THE TILES STOPPING MOVEMENT”
Investigator’s Observation: Verified. Same as Complaint numbers 1-4
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 12: “SOME TILES NOT ALIGNED WITH SURROUNDING TILES”
Investigator’s Observation: Verified. The complainant pointed out and showed me tiles that were cut against tiles with factory edges,, that didn’t lineup
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 13: “GROUT SPACING VARIES AND IS INCONSISTENT THROUGHOUT”
Investigator’s Observation: Verified. This is the same as complaint number 7, The complainant pointed out and showed me throughout her entire residence inconsistent tile grout width lines, as well as areas that have grout piled up in corners and areas where grout is cracking and scarcely applied.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
Complaint Item 14: “SOME TILE IS DAMAGED WITH CHIPS OUT OF TILE”
Investigator’s Observation: Verified. The complainant pointed out and showed me several tiles that had chips.
Governing Rule: A.R.S. § 32-1154 (A) 3: Violation of any rule adopted by the registrar, Namely R 4-9-108: (A) A contractor shall perform work in a professional and workmanlike manner.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
Complaint Item 5: “PERSONS ARE NOT ABLE TO WALK ON THE FLOORING BAREFOOT WITHOUT MAJOR DISCOMFORT”
Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.
Governing Rule: N/A
Complaint Item 9: “PERSONS ARE NOT ABLE TO TURN OR PIVOT ON CORNER WITHOUT MAJOR DISCOMFORT OR CUT SKIN”
Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.
Governing Rule: N/A
Complaint Item 11: “IF WALKING FAST ON TILE AND STOPPING ABRUPTLY ON RAISED TILES WILL CUT THE SKIN ON BARE FEET”
Investigator’s Observation: This statement by the complainant does not implicate a workmanship issue for me to observe and report on.
Governing Rule: N/A
Mr. Hammons conducted a compliance jobsite inspection on September 10, 2021 at which time he determined that Respondent had not made all the corrections that ROC ordered it to make.
ROC issued to Respondent a Citation dated September 20, 2021, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).
Mr. Hammons provided credible testimony showing that tile installed by Respondent had lippage exceeding the ROC standard for this application of 1/32 inch.
Mr. Hammons provided credible testimony showing that grout lines had a variation in width of greater than the standard for this application of plus or minus 1/16 inch.
Respondent called Art Ehman to testify. Mr. Ehman has considerable experience and expertise in the tile industry. Mr. Ehman confirmed that ROC’s standards allow for lippage of only 1/32 inch and that there were tiles for which the lippage exceed that amount, but he did not know how prevalent these were.
Mr. Ehman also testified however that ANSI standards allow for an additional 1.3 mm if individual tiles have warpage. There was no evidence adduced to show that the tiles at issue had been tested for warpage.
Ms. Jackson testified to the effect that the tile manufacturer told Respondent that the lippage should not exceed 1/16 of an inch. She also testified to the effect that the tile manufacturer should bear some responsibility for the lippage issue.
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:
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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 shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”
The preponderance of the evidence shows that Respondent’s work was in violation of Ariz. Admin. Code section R4-9-108(A) as set out in ROC’s Directive, which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).
The preponderance of the evidence shows that Respondent did not comply with ROC’s Directive in the time allowed, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
Ariz. Rev. Stat. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend ... or permanently revoke any or all licenses issued under this chapter if the holder of the license ... commits any of the acts or omissions set forth in” subsection 32-1154(A).
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).
Considering the facts and circumstances of this matter, it is appropriate for Respondent’s license to be suspended for one day and for Respondent to be assessed a civil penalty of $250.
RECOMMENDED ORDER
IT IS RECOMMENDED that the Registrar of Contractors suspend Respondent Jackson Tile and Design LLC’s license No. 168442 for one day and that the Registrar impose against Respondent a civil penalty of $250.
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, November 15, 2021.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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