ALJDEC - Licensing

2023A-11427-CHC-ROC · Registrar of Contractors · 2024-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

BRUCE P LENGYEL,

COMPLAINANT

v.

Craft Touch Flooring LLC

License No. ROC 294126,

RESPONDENT

No. 2023A-11427-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 19, 2024

APPEARANCES: Bruce Lengyel appeared on his own behalf. Jesus Manuel Garcia Arroyo, qualifying party, appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 and 2. Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.

_____________________________________________________________________

FINDINGS OF FACT

Craft Touch Flooring LLC (Respondent) is the holder of License No. 294126 issued by the Arizona Registrar of Contractors (Registrar).

On or about September 11, 2023, Bruce Lengyel (Complainant) entered into a contract with Respondent for the installation of tile flooring throughout the downstairs and in the master bathroom.

On or about October 2, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator John Peru. After a jobsite inspection, Investigator Peru 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 November 13, 2023.

. . . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - "- The contractor failed to level the floor as directed and, as a result, the tile floor is very visibly un-level throughout (i.e., lippage, wavy, baseboard unable to sit level on tile).- Contractor and his crew (his sons) barely even used levelers during installation of the tile.- We purchased all tile, grout, and supplies for this job."

Investigator’s Observation: At the time of this Inspection, both parties acknowledged that the Complainant provided all of the required materials for this project per the Respondent's guidance. This arrangement was initiated in lieu of a traditional initial deposit paid out to the Respondent for the project take-off (Respondent supplied materials). In regards to the allegation for "Unleveled Floor" the Floor was measured, and was within the 1/4" per 10' Workmanship Standard. In regards to "Lippage" there were tiles out of compliance (exceeding 1/16") in the Great Room and Kitchen areas. All Parties acknowledged that the Respondent will be responsible for Inspection/ and correction of

Any Floor Tiles that are not within compliance.

REF: (P)2, (P) 3.

. . . . .

Compliance Item: 2 - "- Grout is different colors in different parts of the floor."

Investigator’s Observation: Verified.

At the time of this Inspection the Floor Tile Grout is white, and should be a medium Gray. The Grout product specified for this project was Custom Building Products "Prism, Delorean Gray #165 PG16517T. This product guarantees no efflorescence, and guarantees color match to sample/ no sealing required. As per manufacturer warranty, if the grout is improperly mixed/applied/ and or washed, the grout will not produce the expected results. High performance grout requires the Respondent to follow all of the manufacturer instructions in detail, and any deviations from specific processes will void any warranty resolutions. The Respondent will be responsible to correct by appropriate means. If the Respondent disputes this finding, the Respondent will need to provide evidence that this a specific defect in the manufacturer's product, and that the Installation was performed per Manufacturer's Instructions. REF :(P)17, (P)6

. . . . .

Compliance Item: 3 - "- Excess grout was used to cover poorly aligned / drooping corners.

- Pin-holes throughout in grout."

Investigator’s Observation: Verified.

At the time of this Inspection, there were several areas on the Floor Tile, as well as the Master Bath Shower ensuite that require touch-up/re-dressing of the joint/ and or filling any "Pin Holes," voids, and any areas that were not grouted completely. The Respondent is to inspect and correct any areas within the scope of the project that are not within compliance. REF:(P)7, (P)8, (P)9, (P)10, (P)11, (P)12, (P)16.

. . . . .

Compliance Item: 4 - "Damaged Floor Tiles, and excessive Lippage on Shower/Tub Pony wall."

Investigator’s Observation: Verified.

At the time of this Inspection, there were (2) damage Floor tiles; Hall Bath Floor Tile at the Pedestal Sink area, and Hall Bath Floor Tile at the Entry. Additionally, there is (1) Tile on the Tub Side of the Pony wall that exceeds the lippage standard, and has excessive grout "ramping up" . REF: (P)4, (P)5, (P)12.

. . . . .

Compliance Item: 6 - "- Contractor installed baseboards poorly.

- We purchased all baseboard for this job."

Investigator’s Observation: Verified.

At the time of this Inspection, there were bullnose corner blocks that were proud of the adjacent baseboard joint. Additionally, there were several areas that showed protruding nails that were not properly set in the Bullnose Corner Blocks/ and baseboards. Both Parties acknowledged that the Respondent was not performing the painting task in this project, and only was to perform the carpentry/installation of the baseboards. Per compliance, the Respondent shall ensure all joints are flush/in plane to workmanship standards, and all nails are properly set into the material. REF :(P)13, (P)14, (P)15, (P)16.

All errors contained in original.

Following the issuance of the written directive, Respondent attempted to make some corrections, but did not complete the corrections and did not complete the corrections in a workmanlike and professional manner. After the deadline in the directive expired, Investigator Peru was notified that the corrective work was not complete.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A), and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Peru testified that he was assigned to the matter on or about October 2, 2023. On October 24, 2023, Investigator Peru conducted a jobsite inspection. Both parties were present during this inspection. Investigator Peru verified Items 1, 2, 3, 4 and 6 and testified consistently with his observations as outlines in his written directive.

With regard to Item 1, Investigator Peru further testified that he only noted the worst areas of excessive lippage; however, he instructed the parties to cooperate on a walk through to identify all of the areas of excessive lippage that needed to be corrected.

With regard to Item 2, Investigator Peru testified that the grout color was not as specified, and through his expertise and experience with this particular type of grout, the color was mismatched due to improper mixing rather than a manufacturer defect. Investigator Peru was of the opinion that the grout was improperly mixed and not applied per instructions.

With regard to Item 3, in addition to the observations contained in his written directive, Investigator Peru testified that the holes and pitting in the grout, while a common thing to occur (and usually considered “punch-list items”), were typically identified and corrected upon the final walk through on a project. In this case, Respondent never completed a final walk through; therefore, these punch list items were never corrected and were thus considered to be a workmanship issue.

Investigator Peru further testified that the compliance deadline of November 13, 2023, was a reasonable deadline and that he would have typically granted an extension if one was requested and a good faith effort was being made toward correcting the issues in the written directive. In this case, no extension was ever requested; therefore, no extension was ever granted.

Investigator Peru stated that, in making appropriate corrections, the corrections had to be completed using due diligence and in a professional and workmanlike manner. If corrections were not being executed in this manner, it would not be considered an appropriate correction. Furthermore, if additional damage was being caused in the course of making the corrections, then the corrections would also not be considered to be being executed in a professional and workmanlike manner.

Finally, Investigator Peru testified that he did not complete a compliance inspection because both parties advised him that the work was not completed.

Complainant testified that in Respondent’s attempts to make corrections pursuant to the written directive, Respondent caused additional damage. Specifically, Respondent damaged Complainant’s refrigerator, granite island, and kitchen cabinets. Notwithstanding, Complainant never stopped their corrective work and never told them not to return. Complainant testified that he did, however, tell Respondent that they were causing additional damage in the process. After three days of working on corrections, Respondent never came back.

Complainant testified that Respondent stated he believed there was a defect with the grout and that Respondent was going to contact the manufacturer, but Respondent never did and Respondent never returned.

Complainant testified that Respondent never attempted to correct Items 4 or 6.

Manny Garcia testified on behalf of Respondent. Mr. Garcia testified that since the beginning of the project, Complainant told him every day that the work looked good. He further states that Respondent fixed “the majority” of the items, but on the 4th day of corrective work, Respondent was not allowed to finish the work. He conceded that Respondent never corrected Item 4, but stated it was because it could not because the bathtub had been installed.

Alexis Garcia (Alexis) also testified on behalf of Respondent. Alexis stated he was one of the installation crew members and that he witnessed the baseboards (Item 6) being corrected. He further testified that he witnessed some of the tile being removed and replaced in order to correct the leveling issues.

Administrative notice is taken of Respondent’s prior License record on January 19, 2024. Such prior License record reflects that Respondent’s License No. 294126 was first issued on November 18, 2014, and is currently active. Such prior License record also reflects this open complaint and no prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

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 Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

The evidence established that Respondent did not complete the corrective work within a reasonable period following the issuance of the written directive. There was no credible evidence of a denial of access. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. 294126 for a period of 1 day.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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.

Done this day, January 30, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff