ALJDEC
98F-T0241-ROC · Registrar of Contractors · 1998-06-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
|DOROTHY PLUNKETT, |(|Case No.: T98-0241 | | |(| | |Complainant, |(|Docket No.: 98F-T0241-ROC | | |(| | |vs. |(| | | |(| | |License No. 120904, Class C-48 of|(|Recommended | |Bryan Keith Stern, d.b.a., THE |(|Decision and Order | |TILE MAN OF GREEN VALLEY (OWN), |(| | | |(| | |Respondent. |(| | | |(| | | |(| | | |(| |
HEARING: Tuesday, June 2, 1998 at 9:00 a.m. Appearances: The Complainant, Ms. Dorothy Plunkett, appeared in her own behalf. The Respondent was represented by the owner and Qualifying Party, Mr. Bryan Keith Stern. Administrative Law Judge: Grant Winston
This matter was brought on for administrative hearing June 2, 1998. Testimony was heard and other evidence admitted and, based on the record taken as a whole, the following Findings of Fact, Conclusions of Law, and Recommended Order are made.
FINDINGS OF FACTS
1. The Respondent herein is, and at all times material hereto was, a contractor licensed by and doing business in the State of Arizona, and holding a Class C-48 License (Ceramic, Plastic & Metal Tile) Number 120904.
2. The Complainant is a resident of Green Valley, Arizona. She contracted with the Respondent in writing on May 15, 1997, for the Respondent to install Saltillo tile throughout her 1,800- or 1,900- square feet house in Green Valley. Consideration was $8,414.87. Complainant paid Respondent $4,200.00 of the price May 16, 1997, and an additional $4,000.00 on June 5, 1997. Respondent completed the project in late June, or early July, 1997. Complainant was dissatisfied with several aspects of the completed work of Respondent. She was unhappy with the scuffed tiles that were used, the finish applied to the tile (including finish which had been put on walls and baseboards, and other areas besides the tile), and the grout work, i.e., dark areas, low areas, checking, uneven grout lines between tiles, and grout smeared onto tiles, baseboard and other foreign surfaces).
3. Complainant mailed a letter to Respondent dated August 16, 1997, in which she inquired of him what he planned to do to correct the unsatisfactory grouting and finishing of the tile, and how she could go about removing the finish material from the surfaces where it did not belong.
4. Complainant again mailed a letter to Respondent dated November 17, 1997, in which she observed that she had not heard from Respondent in three weeks, and informing him that she was establishing December 3, 1997, at 5:00 p.m., as a deadline for him to make the corrections she believed to be warranted in the circumstances. She enclosed for his information copies of do-it-yourself grouting manuals, portions of which she had highlighted, to advance her ideas of what was correct tiling procedure as opposed to what Respondent had done in her home. She concluded by giving notice to Respondent that should he fail to make the corrections to her tile project by the deadline she had established, she would at that time proceed with an administrative Complaint in the Registrar of Contractors’ Office.
5. Complainant wrote another letter to Respondent dated January 12, 1998, in which she observed that the Respondent had been to her house on the 2nd of that month and had informed her of his plan of correction which appeared to be acceptable to her. She continued to note that he had broken an appointment, she was doubting his future efforts, and she was requesting his corrective plan in writing, including start and finish dates.
6. Complainant wrote a letter to Respondent dated February 2, 1998, noting that his corrective work had not satisfied her, and thus she was proposing two final options. They were that Respondent tear out the job, and pay all expenses incidental to that, or refund the entire amount she had paid him. This letter, as others sent by Complainant, was sent by the United States Postal Service’s Certified Mail, but went unclaimed by the Respondent.
7. Complainant obtained a proposal from Pedro’s Tile & Design, Inc., of Tucson, Arizona, on March 18, 1998, for removal and replacement of the tile job. The quote was $12,542.87.
8. Complainant sought the opinion of one Lee Cobb, President of The Grout Doctor, a licensed contractor in Tucson, Arizona, as to the work Respondent had performed in her home. Mr. Cobb, by letter dated April 20, 1998, noted his findings that the grout was soft and had dark spots, and his suspicion that these conditions were the results of the thin set, or adhesive, being still wet when the grouting process was completed. He further noted stray grout on the tiles, and his scraping off that tile causing the removal of the topcoat of the tile. He noted that almost all of the tiles were scuffed, and that he had not previously seen such in quality tile. Mr. Cobb noted in a post script to the letter that he does not set tile himself.
9. Complainant obtained other price quotes. Residential Door & Trim Specialties, Inc., of Sahaurita, Arizona, on May 29, 1998, quoted $655.00 as the price of removal of her existing baseboards and replacing them; another quote from Joe’s Custom Painting was $2,000.00 for cleaning and repairing the interior of Complainant’s home after new tile would be installed. Complainant herself prepared a “Cost Estimate” of all expenses she would incur in replacing the tile job, and this she totaled to $21,395.37. She also submitted as evidence at the hearing the do-it-yourself tile instructions she had previously provided Respondent, as well as another such informational sheet. These instructions are not particularly to do with Saltillo tile, but are generally to do with the application of tile.
10. Both parties submitted several clear photographs of Respondent’s finished work, and each felt all the photographs support for their opposing positions in this matter.
11. Respondent had a field representative of the supplier, Custom Building Products of Bell, California, Mr. Pat Cruz, inspect his work in October, 1997, and Mr. Thomas Domenici, submitted a notarized statement of Mr. Kruz’s findings dated June 1st, 1998. According to Mr. Kruz “the installation was well within Industry Standards and was found to be acceptable. Minor areas of shade variation is not unusual with any cementicious grout.”
12. Complainant filed the instant Complaint on October 6, 1997, complaining of the items herein mentioned plus hollow-sounding tiles. No evidence of hollow-sounding tiles was found. Mr. James R. Morris, Registrar of Contractors’ Inspector/Investigator, was assigned to the Complaint. He conducted a job-site inspection of Complainant’s tile on October 22, 1997. He issued his Corrective Work Order on December 4, 1997. He directed the Respondent to make certain corrections within fifteen days. Mr. Morris conducted a pre-hearing inspection June 1, 1998.
13. Some of the corrective work Mr. Morris had directed the Respondent to do the Respondent had previously been willing to do, but he and Complainant had reached an impasse owing to their difference of opinion as to what should be the final solution.
14. Respondent remains willing to make corrections #1.(a)-(d) as ordered by Mr. Morris; i.e., filling checked grout areas at doors with small pieces of tile; filling missing grout areas; filling any low grout areas, and cleaning grout smears off tile.
15. The evidence showed that there is at least one area of lippage (a tile higher than the adjacent tile) approximately one quarter of an inch. This, as testified by Mr. Morris, may be borderline acceptable under minimum workmanship standards, but “good workmanship” calls for its correction. Mr. Morris had ordered the project’s completion to be in accordance with good workmanship practices. Thus, all lippage defects of one quarter inch or greater should be corrected.
16. The evidence also demonstrated that there are grout smears not only on the surface of the tile in places, but grout and finish in other areas where they should not be found, such as fixtures and baseboards. Respondent should clean or remove this stray material in an appropriate manner.
17. There are some areas of color variation in the grout, including some areas where the grout is darker than others. However, it is found that some grout color variation is normal, and not necessarily a defect. In this case, Mr. Morris observed a couple of areas of dark spots that, based on his testimony, were excessive, and these areas should be repaired or replaced, consistent with Corrective Work Order #2.
18. The tile finish Complainant desired was a glossier finish than she received in all the house except for a bathroom. The finish in the bathroom was as she hoped. Respondent subsequently brought the finish in one bedroom up to the state of gloss or shine that is acceptable, but the remainder of the house is still not up to that degree of finish. Respondent should correct the finish throughout the house in this manner, and consistent with Corrective Work Order Item #3.
19. A few findings need be made as to the nature of Saltillo tile itself. Saltillo tile takes its name from the place in Mexico where it is manufactured. It is hand-finished tile, rustic in appearance, and naturally lacking the precise uniformity of dimensions and appearance from tile to tile that machine manufactured tiles possess. The rustic nature and appearance of Saltillo tile being commonly understood within the industry and among the majority of consumers, extreme care is not always taken in shipping that tile to prevent scuffing that would be taken in other types of tiles, such as placing protective paper or plastic between each two tiles. Thus it is that when a Saltillo tile job is completed, as contrasted to other tile jobs, there of course will be areas of variation in color, width, height, and some variation around the sides of the tiles which will result in the grout lines widening and narrowing somewhat throughout the project. If a person cannot accept this, a selection of tile other than Saltillo should be made.
20. It appears that some of Complainant’s unhappiness with Respondent’s tile work was precipitated by her comparison of that work with the tile that had been laid inside a nearby model home, tile which was not Saltillo tile. Thus the opinion of Respondent’s work suffered to some degree by inappropriate comparison.
21. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors.
Conclusions of Law
1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092.
2. The Respondent herein is charged with possible violations of A.R.S. §32-1154.A.7., 23., and 3., namely A.A.C. R4-9-108 (Poor Workmanship).
3. The preponderance of evidence of record supports the conclusion that Respondent did violate A.R.S. §32-1154.A.7., and 3., as charged.
Recommended Order
Wherefore, it is hereby recommended that Respondent’s Class C-48 License Number 120904 be placed on indefinite suspension until such time as the agency receives written proof that Respondent has adequately and appropriately performed the corrective work in the Corrective Work Order #1(a)-(d); corrected the dark spots observed by the Inspector as referenced in his testimony; brought the gloss or sheen of the finish throughout the house up to the degree of that in the bathroom and guest bedroom, corrected any lippage one quarter of an inch or greater, and clean all grout smears and finish on inappropriate surfaces.
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. . .
It is further recommended that if, on or before the effective date of this order, the agency has received proof that Respondent has sufficiently performed the noted corrective work, that no suspension take place and this complaint be closed.
Dated this 3rd day of June, 1998.
OFFICE OF ADMINISTRATIVE HEARINGS
_________________________________ Grant Winston Administrative Law Judge
Original mailed this 3rd day of June, 1998, to:
Michael P. Goldwater, Director Attn: Joyce Armijo Registrar of Contractors 800 W. Washington, 6th Floor Phoenix, AZ 85007
Transmitted by:
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