ALJDEC decisions subject to certification as final

2021A-03970-CHC-ROC · Registrar of Contractors · 2022-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Canyon Building and Design LLC,

COMPLAINANT

Decorative Masonry LLC,

License No. ROC 284662,

RESPONDENT

No. 2021A-03970-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 6, 2022

APPEARANCES: Steven Richardson, Director, appeared on behalf of Complainant Canyon Building and Design LLC. Jeremy Osheel, Owner and Qualifying Party, appeared on behalf of Respondent Decorative Masonry LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

Decorative Masonry LLC (Respondent) is the holder of License No. 284662 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 28, 2019, Canyon Building and Design LLC (Complainant) entered into a contract with Respondent for tile work on a large commercial project.

On or about August 17, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Jack Grimm. After a jobsite inspection, Investigator Grimm issued a written directive to Respondent that provided as follows:

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 October 11, 2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item #1: Poor workmanship

Investigators Observation: Poor workmanship will be address based on specifics of each complaint items as listed.

Governing Rule: N/A

Complaint Item #2: Tile is delaminating

Investigators Observation: The issue of the tile delaminating is not the actual tile product but the adhesion of the tile to the substrate. Tile was applied to two different substrates, walls of the main building and storage areas are OSB, lath and plaster and the patio/pool area walls are CMU. A third party group (hired by the property owners) was on site removing tiles. Parties state that the correct Laticrete adhesive (thin set) was used to install tiles. Individuals form Harvey J Lawrence and Associates removed tiles in three (3) locations and revealed that the tiles that have a hollow sound do not appear to be adhered correctly. Backs of tiles showed the thin set was not pressed tight as the notched towel lines are not pressed out and no adhesion took place in these locations. Minor areas of hollow sounding tiles may be acceptable if the majority of the tile is solidly bonded.

*Correct locations of poorly bonded tiles.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #3: Poor craftsmanship

Investigators Observation: Poor craftsmanship was referred to as poor cuts, grout discoloration, missing or irregular gout and the installation of cracked tiles. Observed very few poor cuts with minor jagged edges. Overall the cuts appeared good. Certainly work cannot be perfect and the very few locations observed of the minor jagged edges are acceptable. Grout discoloration was observed and it was stated that different color grouts were used. I was unable to determine if different grout colors were used. Shade and color difference are inherent in all cement based products and is more pronounced in wet locations. (we had a wet summer for Phoenix) I did observe many locations of white (efflorescence) that is common in cement based products as well. Jeremy Oshell states it was not part of his contract to seal any locations of his work. All parties present state sealing of the wall cap and grout did not take place. Other locations of the wall in relationship to the steel posts imbedded in the work appear to have water intrusion as well. The relationship of the steel posts also appears to be effecting locations with movement from post locations, CMU and/or framed areas effecting some locations of the applied tile. Failure of tile in relationship to locations of movement may not be the responsibility of Decorative Masonry if installation of that work was performed by others. Missing and irregular grout was observed in several locations. Grout should fill voids between tiles and have a consistent flat or tooled look. Was shown and observed one cracked tile. Cracked tiles should be replaced.

*Correct locations of missing or irregular grout and cracked tiles.

Governing Rule: 32-1154(A)(3) Poor work

Complaint Item #4: Improper installation

Investigators Observation: Improper installation issues are addressed in complaints number 2,3,5.

Governing Rule: N/A

Complaint Item #5: Excessive lippage

Investigators Observation: Observed many locations with lippage in excess of 1/32 inch and several locations with lippage greater than 1/16 inch. Most of the lippage appeared to be end to end or near upper or lower ends. Warpage of these rather large tiles do not appear to an issue. ANSI lippage standard for Porcelain tiles (Kerlite Plus is stated to be Laminated Porcelain stoneware slab) all sizes with a grout joint of 1/16 inch to less than 1⁄4 inch has an allowable lippage up to 1/32 inch. Tiles as installed appear to fall within this grout joint range and the no greater than 1/32 inch will apply.

*Correct all locations with lippage greater than 1/32 inch (thickness of a standard credit card).

Governing Rule: 32-1154(A)(3) Poor work

Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Grimm was notified no corrective work had been performed.

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).

Investigator Grimm testified as to his observations of the project. Investigator Grimm indicated that on or about October 15, 2021, Respondent notified him that no work had been performed due to the ongoing COVID-19 pandemic.

Steven Richardson testified regarding the numerous issues observed on the jobsite. Mr. Richardson went through a number of photographs that highlighted the poor work performed by Respondent on the project. Mr. Richardson stated that the hotel at issue was extremely dissatisfied and that repairing the work now that the hotel was open to patrons would be disruptive and costly.

Mr. Osheel testified that he believed some of the issues were due to materials and had raised the issue with his insurance agent. Mr. Osheel admitted that there were workmanship issues on the project, but asserted that he was unable to obtain materials to correct the work after the directive was issued due to supply chain problems.

Administrative notice is taken of Respondent’s prior License record on January 20, 2022. Such prior License record reflects that Respondent’s License No. 284662 was first issued on April 29, 2013, and was active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 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).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 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 No. 284662 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 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 A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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 40 days from the date of that certification.

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-137160-45720000Done this day, January 24, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000