ALJDEC

98F-2184-ROC · Registrar of Contractors · 1998-10-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 19, 1998 APPEARANCES: Don and Dorothy Joesten, Complainants, in their own behalf John Hoefle, Respondent, in his own behalf ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

FINDINGS OF FACT The Respondent was a partner in Accent Interiors (Accent) which had entered a contract with the Complainant for the installation of tile at a residence in Fountain Hills being built by the Complainant as an owner-builder. The Respondent was to install 1400 square feet of Italian tile provided by the Complainant. The residence has four levels and the tile was on the second level. Accent is not licensed. The Respondent was responsible for field operations on behalf of Accent. The cost of the contract was $8,900.00. The Respondent installed the tile which had been provided by the Complainant. The plywood flooring was covered with a diamond lath and covered with 1/4 to 1/2 inch mixture of thin set and latex. Grout lines were approximately 1/8 of an inch wide. The grout is a charcoal color. The tile is of two types (black and black stripped). The tile is approximately a 1/4 to a 1/3 of an inch thick. Upon completion, no problems were noted with the grout. However within a short time, the Complainant noted that the grout was cracking and pieces were beginning to come out. The Respondent came out to look at the condition. By this time, the Respondent and Accent had discontinued their business relationship due to disagreements not relevant to this case. In January, 1998, a person identified as Samuel Castillo (Castillo), came to the Complainant’s residence to replace the grout. Castillo, is not licensed by the Registrar of Contractors (Registrar), and was apparently sent to do the corrective work by Accent and not the Respondent. Shortly thereafter, the grout again began to crack and break apart. The Complainant contacted the grout manufacturer concerning the problem. A sample of the grout which was used at the Complainant’s home was tested by the manufacturer and no problems were noted with the sample. The Complainant filed his complaint with the Registrar on March 4, 1998. Inspector Marty Di Antonio (Di Antonio) of the Registrar’s Office performed an inspection on March 23, 1998 and issued a Corrective Work Order (CWO) on March 25, 1998. The CWO required the Respondent to determine the cause and correct by appropriate means the deterioration of the floor grout. The Respondent changed the brand of grout. C Cure grout with a latex adhesive was used and the Respondent’s employees replaced the grout at the Complainant’s home. Shortly after this third attempt, the grout again began to crack and break with fine grout residue staining portions of the carpet and walls. On October 15, 1998, Di Antonio performed a prehearing inspection and determined the grout was still deteriorating. The condition was described as poor with loose, cracking grout which turns to paste when wet, and streaks if wiped with a wet cloth. There was no competent evidence which would tend to explain the problem with the grout. CONCLUSIONS OF LAW The allegations in the Citation and Complaint concern A.R.S. §32- 1154(A)(3), specifically A.A.C. R4-9-108 workmanship standards, (A)(7), wrongful or fraudulent conduct resulting in substantial injury, (A)(17), contracting beyond the scope of the license, and (A)(23), failure to take appropriate corrective action. The contracting outside the scope of the license allegation was mistakenly made according to Inspector Di Antonio. This is recommended for dismissal. The evidence shows that the work does not meet workmanship standards and is therefore a violation of A.A.C. R4-9-108. The Respondent suggested that, since three qualified persons did the grout work on three occasions, that grout which was tested did not manifest the problems experienced by the Complainant and a different grout was used for the last installation (third time), then something was amiss with the Complainant’s home. According to the Respondent, this could be settling, resonance, unsupported flooring or some unknown soil or foundation condition. This conjecture is not evidence and cannot be given any consideration. The Respondent is considered the expert in the field and is responsible for the proper installation of the tile. This includes the responsibility for determining the cause for the failure of the grout on three occasions or in the alternative curing the defect. The Respondent has attempted to correct the defective work but has been unsuccessful. The failure is not willful or intentional. However, the violation of (A)(23) is proven. The condition causing the grout failure is unknown. The Respondent is responsible for correcting the condition under the facts of the case. However, those facts do not support a violation of (A)(7). RECOMMENDED ORDER In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-08 license of the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent has either accomplished appropriate and effective remedial work on the grout, or at the Respondent’s cost, has provided for such corrective work by a properly licensed contractor, or in the alternative that the parties have consummated an agreed upon financial settlement. It is further recommended that if Respondent accomplishes or provides for the accomplishment of the above described corrective work, or in the alternative has consummated an agreed upon financial settlement with the Complainant, on or before the effective date of the Order entered in this matter, then the aforementioned suspension . . . . . . . . . shall not take place and the Citation and Complaint upon which it is based shall be closed. Done this day, October 23, 1998.

_________________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of October, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826