ALJDEC

99F-0248-ROC · Registrar of Contractors · 1999-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 22, 1999 APPEARANCES: Dr. Robert Weiner, Complainant, in his own behalf James Abdo, Esq., on behalf of Respondent Spomer Homes (Corp.) Bill Page, Respondent, in his own behalf ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

Findings of Fact The Complainant had a custom home built in north Scottsdale by the Respondent, Spomer Homes (Spomer). The Complainant took occupancy in November of 1997. The home has approximately 1600 square feet of cement tile flooring inside and another 1600 square feet outside in two patio areas. The tile is 11 ½ by 11 ½ inches, and a half inch thick. The cost of the tile including installation, was approximately $25,000.00. The tile flooring was installed by the Respondent Page Tile (Page), who was hired by Spomer. Page was aware that the tile was cement prior to its installation but he was unaware of any potential problems with cement tile. The cement tile had been selected by the Complainants from a distributor (Monarch) in Scottsdale, Arizona, upon the advice of the Complainants’ design consultant. The manufacturer of the tile was Ro-Tile. Cement tile has a history of a potential for inadequate curing causing the edges of the tile to turn up slightly (curling). This condition has been known to the Ceramic Tile Institute (CTI) for at least 25 years. A potential consequence of the curling is that the tile will not remain bonded to the surface upon which it is laid. It will become loose and make a hollow sound. Based on the 25 year old CTI report, no adequate test procedure had been developed to address the curling problem. The CTI report also stated that the thin 12 by 12 tiles were the most susceptible to curling and listed a number of other recommendations which should be followed by contractors, including getting directions on installation and a guarantee against curling from the manufacturer. Shortly after moving into the home, the Complainant noted hollow sounds from the tile in the front hallway and contacted Spomer. Communication with Ro-Tile resulted in some representations that Ro-Tile would possibly underwrite up to $4,000.00 for repair of the tile. The hearsay and general nature of this asserted offer by Ro-Tile is too speculative to give it much weight. Its relevance is also somewhat questionable in the context of the factual and legal issues in this hearing. In February, 1998, Page attempted corrective work by drilling holes in the grout and injecting thin set in hollow sounding areas. This did not remedy the problem and more hollow sounding areas were discovered by the Complainants including outside tiles. In May, 1998, the Complainants and Respondents met and agreed that additional corrective work was to be done while the Complainants were out of town. Spomer wanted certain conditions on the agreement to limit its liability. The Complainants did not agree to these conditions. The Complainants entered a separate agreement with Page to have corrective work done while the Complainants were out of town. The Complainants would pay Page and look to Ro-Tile for reimbursement. The corrective work consisted of additional attempts to inject thin set under the loose tiles. This second attempt to correct did not prove effective. On June 3, 1998, Ro-Tile, Inc. filed for bankruptcy under Chapter 7 in the Eastern District of California in Sacramento. The Complainants were unable to establish contact with Spomer and heard rumors that Spomer was out of business. On July 22, 1998, the Complainants filed their complaint against Spomer with the Registrar of Contractors (Registrar). On September 14, 1998, Inspector Robert Dragoon (Dragoon), of the Registrar’s Office, performed an inspection at the Complainants’ home and found numerous hollow sounding tiles especially in the patio areas. On September 21, 1998, Dragoon issued a Corrective Work Order (CWO) to Spomer. The CWO required Spomer to correct the hollow sounding tile areas by appropriate means. According to the Registrar’s computer records supplied at the hearing by Dragoon, Spomer’s license was suspended September 26, 1998 for lack of a Qualifying Party with another suspension on January 17, 1999 for lack of bond. Spomer is not presently engaged in contracting. Upon learning that Spomer was no longer actively in business, the Complainants filed the complaint against Page, with the Registrar, on November 20, 1998. On January 8, 1999, Dragoon performed another inspection at the Complainants’ home and on January 11, 1999, issued a CWO to Page. Dragoon noted that some of the tile had been regrouted but the hollow sound remained. The CWO required the correction of the loose tile and deteriorated grout which had hairline cracks. On January 17, 1999, the Complainants had another tile contractor, Nork Tile (Nork), examine the floor. Nork attempted corrective work in a four foot by ten foot area by injecting a product called Nu Bond. The method was not successful. It was concluded by Nork that the tile flooring would have to be removed, and new flooring installed at an estimated cost of $25,000.00. It is uncertain if the estimated cost includes the cost of removing the current tile. A cement tile walkway was installed at a later time than the rest of the tile. The walkway connects the patios and does not manifest the problems of the other tile. Dragoon did another inspection on April 21, 1999, and a pre-hearing inspection on the day of the hearing. He noted almost half the tiles tested in the foyer were hollow sounding. Areas in the great room and kitchen indicated more than half the tiles checked did not have a solid bond. An outside area showed 50 of 60 tiles were determined to be loose. Conclusions of Law The Citations and Complaints which were issued in the instant cases allege violation of A.R.S. §32-1154(A)(3), violation of any rule, specifically A.A.C.R4-9-108, workmanship standards, (A)(7), a wrongful or fraudulent act with substantial injury, and (A)(23), failure to take appropriate corrective action. The parties agree that substantial areas of the tile flooring both inside and outside are hollow sounding and unsuitable. The issues are whether the tiles are in such a condition because of poor workmanship performed by persons working for Page, whether the tiles were defective because of “curling”, and if the tile was defective, what is the liability of the Respondents in light of the fact that the Complainants chose the tile. Based on the evidence, it cannot be conclusively determined if the problem with the tile floor is due solely to poor workmanship, defective tile, or any type of combination of the two. The fact remains that extensive tile areas are unsuitable for their intended purpose and the evidence strongly suggests all the tile except the subsequently installed walkway tile, requires replacement. The 25 year old CTI report regarding the curling problem is relevant in that if the cause of the problem is the cement tile curling, such condition has been known to the industry for at least that period of time, although it was not known to Page. The argument by the Complainants is that they did not insist that cement tile had to be used and if they had been told of the possible problem, they would not have chosen that tile. In addition, the Complainants urge that a tile subcontractor with 20 years’ experience should be charged with knowledge of the potential for cement tile curling since the problem has been known for over twenty years. This Administrative Law Judge was not made aware of any educational standard which establishes a certain knowledge or information level among contractors. Workmanship generally relates to whether the final product meets certain standards. Any final product in contracting has both a physical and a mental aspect. The tangible result must meet certain standards and the manner of combining or building with the physical tools depends not only on the quality of the product to be used but also on the physical and mental aptitude of the person doing the construction. An experienced contractor is generally expected to have a certain knowledge concerning the area of his or her expertise. This includes knowledge about how to properly use the tools of the trade to construct that which is to be built, but also knowledge about the materials which are used in the construction to assure that the materials are appropriate for the job. Simply stated, the question is, how far does such a responsibility go under the facts of this case where the purported defect was not apparent although any such defect has been known to the industry for 25 years, and the Complainant picked the potentially defective material? It should recognized that a contractor would be committing a wrongful act and engaging in poor workmanship if he or she installed a product knowing it to be defective. Although there is no evidence that Page knew of any defect, a question arises if a ”should have known standard” is applicable? It is the opinion of this Administrative Law Judge, that a tile contractor should have sufficient familiarity with the product that he is being asked to install, to be able to make an informed determination of the suitability of the product for its intended purpose. One cannot avoid this responsibility by simply saying that all the contractor is responsible for is installation and that there is no responsibility for making some determination of the suitability of the product. This is especially true in the instant case where the defective potential of the tile has been known for at least as long as Page has been a tile contractor and Page knew that the tile was concrete and had worked with it only once before. In light of such limited experience with the product, ordinary prudence would seem to indicate that since all tile and installations will not necessarily be alike, a contractor should know or inquire about potential singular features regarding unique tile, in order to determine if there are any special precautions or other concerns with respect to its installation. Accepting the fact that at least some unspecified percentage of the tile is defective, the Complainants and their design consultant, the manufacturer and distributor, and Spomer also share responsibility with Page for the condition of the tile floors. However, the Registrar only has jurisdiction of the Respondents. Violations of A.R.S. §32-1154(A)(3)/A.A.C R4-9-108 and A.R.S. 32- 1154(A)(23) are found for Spomer and Page. Spomer as the general contractor is also responsible to the Complainants for the defects in the flooring. In view of the shared responsibility for the problems with the tile flooring, it is concluded that the burden of correcting the problem should also be shared. The Respondents, Page and Spomer, are jointly and severally liable for the removal of the current interior and exterior tile flooring, the preparation of the surface for new tile or flooring and the installation of the new flooring. The Complainants are responsible for providing the material for the new flooring and making the premises reasonably available to the Respondents to allow for the removal of tile and installation of new flooring. The Recommended Order is contingent on the Complainants agreeing to the remedy proposed therein, obtaining new flooring and making the premises available to the Respondents in a timely and reasonable manner in order that they may comply with the Order entered in this case. The Recommended Order requires the parties to cooperate with each other to achieve a common beneficial result and it is expected the Respondents will equally apportion the expense of the corrective work unless otherwise agreed upon by the Respondents. Spomer is given an additional 15 days to comply with any Order issued in the case because if Page fails to do corrective work Spomer will need time to obtain the services of a qualified contractor to perform the work. 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-48 license of the Respondent Page Tile Installation shall be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished or caused to be accomplished appropriate and effective remedial work as set forth in paragraph 10 of the Conclusions of Law; It is further recommended that if the Respondent Page accomplishes or causes to be accomplished the above described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and the Citation and Complaint upon which it was based shall be closed as to the Respondent Page; It is further recommended that commencing 15 days from the effective date of the Order entered in this matter, the Class B license of the Respondent Spomer Homes shall be revoked unless the Registrar of Contractors receives written proof that the Respondent has caused to be accomplished appropriate and effective remedial work as set forth in paragraph 10 of the Conclusions of Law; It is further recommended that if the Respondent Spomer causes the above described corrective work to be accomplished within the time specified by the Order entered in this matter, then the aforementioned revocation shall not take place and the Citation and Complaint upon which it was based shall be closed as to Respondent Spomer; It is further recommended that the requirement to perform corrective work as specified by the Order entered in this matter is contingent on the Complainants obtaining the replacement flooring for the tiled areas which are to be replaced and making the premises available to the Respondents in a timely and reasonable manner. It is further recommended that any Order entered in this matter does not preclude the parties from settlement by financial or other means as agreed to by the parties, prior to the respective effective dates of the Order entered in this matter. Done this day, July 2, 1999.

______________________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of July, 1999, 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826