ALJDEC

99F-0723-ROC · Registrar of Contractors · 1999-08-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 3, 1999. APPEARANCES: APPELLANTS: Debby Krstyen and Carol Zygner, represented by Stephanie Monroe, Esq. RESPONDENT: Ernie Thornburg, president and qualifying party, represented by Jeffrey Hall, Esq.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ This matter proceeded to hearing on August 3, 1999, to determine whether Respondent violated state law as alleged by Complainants and as cited by the Registrar of Contractors (Registrar). Based on the testimony and evidence of record, and administrative notice of certain events and documents relative to the procedural history of the case, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made and submitted to the Registrar of Contractors:

FINDINGS OF FACT 1. Complainants Carol Zygner (Zygner) and Debby Krstyen (Krstyen) are the mother and daughter homeowners of a residence at 33908 North 13th Street, in Phoenix, Arizona. Zygner and Krstyen moved in on or about March 15, 1997, shortly after the home was constructed.

2. The home was built as a result of a contract (Exhibit 8) entered into by Complainant Zygner in May, 1996, with Respondent Thornburg Construction Inc., (TCI), license no. 065056, Class B, through the company’s president and qualifying party, Ernie Thornburg (Thornburg). 3. On August 28, 1998, Complainants filed with the Registrar of Contractors a complaint against Respondent TCI alleging a number of workmanship items in need of correction. 4. The matter was assigned to the Registrar’s inspector Lewis King (King), who conducted a jobsite inspection on December 10, 1998, in the presence of Krstyen, and Thornburg and his wife Ruth Thornburg (also an officer in the corporation). 5. Based on his findings and conclusions, inspector King issued his Corrective Work Order (CWO) on January 5, 1999. 6. The CWO determined that a number of the items complained of, but not all, required remedial action by Respondent. 7. When the matter was not resolved administratively, the Registrar then issued CITATION AND COMPLAINT in Case No. 99-0723 to Respondent on February 9, 1999, alleging violations of A.R.S. §§ 32-1154.A.3 (A.A.C. R4-9- 108), .7, and .23. 8. Respondent timely answered the CITATION AND COMPLAINT. 9. After additional correspondence from Complainant Krstyen to the Registrar, the CITATION AND COMPLAINT was amended by Notice issued on February 24, 1999, to allege possible violations of A.R.S. § 32-1154.A.2. 10. Hearing was therefore duly scheduled and convened, at which time the parties confirmed and stipulated that certain terms and agreements had been documented to resolve all issues except for the questions raised by Item 60 (with subsections 1 - 12) of the CWO: whether the ceramic tile flooring laid in various areas of the home met workmanship standards, and whether Respondent had taken appropriate and timely corrective action to remedy the defects alleged by Complainants.

11. Because Complainants’ position at hearing regarding their allegations of defects in the flooring, as listed in the Corrective Work Order Item 60 and its subsections, both agreed and disagreed with certain of the findings and conclusions of the Registrar’s inspector, and evidence and testimony was presented relative to those particular subsections, the complete terms of that Item are as follows: 60. FLOORS. 1. CONDITION OF FLOOR UNDER FURNISHINGS AND APPLIANCES IS UNKNOWN. NO VIOLATION - WITHDRAWN. 2. TILE FLOORS SHOULD BE CAULKED TO TUBS, TOILETS, EXT. NO VIOLATION - WITHDRAWN. 3. LAUNDRY ROOM FLOOR NOT SLOPED TO THE DRAIN. NO VIOLATION AT THIS TIME AS NO PRINTS WERE SHOWN TO VERIFY IF FLOOR WAS TO BE SLOPED. 4. FLOOR TILE CHIPPED AT SOUTH END OF WEST HALL. CONTRACTOR TO CORRECT CONDITION. 5. HOLLOW SOUNDING TILE. A. WEST HALL SOUTH OF OPENING TO KITCHEN. NO VIOLATION IN THIS AREA AS TILE ARE WITHIN INDUSTRY STANDARD. 6. HOLLOW SOUNDING TILE WEST HALL BATHROOM. CONTRACTOR TO DETERMINE THE CAUSE AND CORRECT CONDITION OF TILE IN THIS AREA. A. MIS CUT FLOOR TILE WEST SIDE OF VANITY IN WEST HALL BATHROOM. CONTRACTOR TO CORRECT CONDITION. 7. GROUT LINES NOT UNIFORM OR STRAIGHT IN SOUTHWEST HALL BATH LINEN CLOSET. CONTRACTOR TO CORRECT CONDITION. 8. HOLLOW SOUNDING FLOOR TILE IN MASTER BEDROOM. CONTRACTOR TO DETERMINE CAUSE AND CORRECT CONDITION. 9. HOLLOW SOUNDING FLOOR TILES IN LIVING ROOM. NO VIOLATION, TILE IN THIS AREA ARE WITHIN INDUSTRY STANDARDS. - A. EXCESSIVE TILE LIPAGE AT NORTH PATIO DOOR. CONTRACTOR TO CORRECT CONDITION. 10. HOLLOW SOUNDING FLOOR TILE AT WEST SIDE OF ENTRY FOYER. NO VIOLATION, TILE IN THIS AREA ARE WITHIN INDUSTRY STANDARDS. 11. HOLLOW SOUNDING FLOOR TILE IN THE KITCHEN AT THE OPENING TO THE FOYER. NO VIOLATION, TILE IN THIS AREA ARE WITHIN INDUSTRY STANDARDS. 12. HOLLOW SOUNDING FLOOR TILES AT NORTHWEST CORNER OF BREAKFAST NOOK. NO VIOLATION, TILE IN THIS AREA ARE WITHIN INDUSTRY STANDARDS.

12. At hearing, Complainants Zygner and Krstyen appeared and testified, through counsel, and offered Exhibits A and B, which were marked and admitted, without objection. (Although the original contract was between Zygner and TCI, the narrative testimony was essentially provided by Krstyen. Consideration of the record leads the undersigned to conclude that this appears to have been for several reasons: it was Krstyen rather than Zygner who dealt with Thornburg as construction progressed, and who then raised and chronicled the various items of complaint; and, the residuals of a medical condition limit Zygner’s ability to express herself. In any event, Zygner clearly stated that she agreed with Krstyen’s actions in pursing the complaint before the Registrar, and both women reside at the home in question.) 13. Complainants also presented the testimony of Dan Smith, a principal with Nest Technologies, Inc., a private home inspection service, who described his experience and certification in the construction trades, and knowledge of ceramic tile installation and flooring standards. In that testimony, Smith explained his findings and conclusions on private inspection of the residence. He described his experience in flood damage investigation, but conceded his lack of knowledge of flooding occurring in Complainants’ home in April, 1997, until recently and after his initial and follow-up reports had been made. (See, Exhibit A, an excerpt from Smith’s March 1, 1998 initial report to Zygner and Krstyen, with specific regard to his findings relative to the tile flooring; and Exhibit B, Smith’s January 2, 1999 follow-up letter to Krstyen, further clarifying his findings and conclusions relative to the cause of the hollow sounding tile flooring). 14. Respondent TCI appeared, through counsel, and presented the testimony of Ernie Thornburg, as president, qualifying party, and on-site builder; and Ruth Thornburg, as the corporation secretary, with knowledge of certain events and circumstances relative to replacement tile. Respondent also offered Exhibits 1 through 11, all of which were marked and admitted, without objection. 15. In addition, Respondent presented the testimony of: * Registrar’s inspector King, who described his experience and certification in the construction trades and knowledge of the Registrar’s standards of workmanship relative to ceramic tile. In his testimony, King explained his findings and conclusions at the time of his jobsite inspection on December 10, 1998, as reflected in his Corrective Work Order of January 5, 1999, and subsequently at the time of his prehearing jobsite inspection on August 2, 1999. He conceded his lack of knowledge of the specifics of the flood until after his initial inspection. * Von Jenson (Jenson), the owner of a flooring wholesale distribution company and the supplier of the ceramic tile installed by TCI in Complainants’ residence. In his testimony, Jenson described his knowledge of ceramic tile manufacture and experience in the installation and sale of such tile; his efforts to procure replacement tile for Respondent to use in complying with the CWO; and his conclusions about the quality of Respondent’s tile installation, the likely effects of the flooding in this case (and his experience in flood damage investigation), and the acceptability, within normal variability, of the color match of the replacement tile to that originally installed; he conceded he had not observed or inspected the actual ceramic tile installation in question. 16. On their evidence presented, Complainants contend: A. That Respondent’s installation of the ceramic tile failed to meet workmanship standards at various locations throughout the house, as specified in the subsections of Item 60 of the CWO, with Smith’s expert testimony supporting a determination that workmanship defects existed over and above those deemed in need of corrective action by the Registrar’s inspector King. B. That although flooding in the house did occur on April 12, 1997 (approximately four weeks after move-in) as a result of a broken washing machine water hose, the nature and extent of that flooding, given the promptness with which the floor was dried, is inconsistent with, and did not likely cause, the pattern and extent of the “hollow sounding” tile already found and continuing to occur in the several rooms of the house. C. That according to Smith, industry standard required that hollow sounding tile be replaced if extensive, as in this case, even if the tile was otherwise solidly bonded, and not just that tile in excess of the Registrar’s arbitrary “10% per room” measure of acceptable hollow sounding tiles. D. That neither the flood, normal wear and tear, pets, nor normal maintenance of the tile floor caused the variation in color recognized by Krstyen and inspector King, in which the original tile, as installed or as held in boxed reserve by Complainants since installation, was darker than available replacement tile, which was therefore unacceptable. E. That in removing a number of tiles identified by the Registrar’s inspector as in need of replacement, but in failing to lay replacement tile (since such tile was too light in color), Respondent had failed to take appropriate corrective action within a reasonable time. F. That Respondent specifically made no effort to correct the “miscut” tile in the west hall bathroom identified in the CWO (Item 60 subsection 6-A). 17. On its evidence presented, Respondent asserts: A. That the ceramic tile laid by Thornburg was done to standards exceeding minimal workmanship, given his experience and practice of applying the thin-set with a 3/8” serrated trowel rather than the more commonly used ¼” trowel. B. That during the period of time in which the thin-set (cementing the newly-installed tile to the concrete) was still curing and more subject to water damage, the flood on April 12, 1997 extended to a significant depth throughout most or all of both carpeted and tiled areas of the house such that the hollow sounding tiles already found and complained of, and still being found, were caused by the flood rather than Respondent’s failure to meet workmanship standards, given corroborating evidence that as a result of the flood Complainants’ home-owners’ insurance had paid to have 80 square feet of loosened ceramic tile replaced (although Complainants had not used the proceeds for that purpose) (See Exhibits 3 - 7). C. That it should therefore be inferred that essentially all hollow sounding tile was caused or contributed to by the flood, and therefore beyond Respondent’s control and responsibility, notwithstanding Complainants’ assertion that at least certain of the hollow sounding tiles (i.e., in Zygner’s bathroom and elsewhere) were not flooded. D. That Complainants’ failure to advise the Registrar’s inspector of the flood misled the inspector into concluding that Respondent’s poor workmanship had caused the hollow sounding tiles, thereby causing Respondent to undertake corrective action it should not be responsible for. E. That Thornburg, for TCI, had simply and mistakenly failed to identify and correct the specific miscut defect identified by the Registrar’s inspector in Item 60 subsection 6-A but would remain responsible for such correction. F. That to the extent Respondent had removed tiles in response to the CWO - even if that CWO mistook workmanship rather than flooding as the causative factor for defects in the tile - it had been and remained willing to replace those tiles with tile found after extensive search and confirmed as being from the same manufacturer’s dye lot - although each piece was specifically identified as subject to intentional variation in pattern and shading (See Exhibit 11). G. That Complainants’ refusal to accept the replacement tile was arbitrary, subjective, and inconsistent (since certain of the replacement tile refused was actually from the original supply and therefore had to be the same color), and provided valid justification for Respondent’s failure to complete the corrective action it had undertaken. H. That if the original tile was darker to a significant degree than the available replacement tile, the darkening was the result of wear and tear, pets, or maintenance - notwithstanding that the darker color of the original tile appeared consistent even in less-used areas such as closets or under rugs, and with the unused boxed reserve tile held by Complainants.

18. On the evidence presented, and in resolution of conflicts in that evidence, the undersigned finds: A. That any hollow sounding tile or other defects identified subsequent to the Registrar’s jobsite inspection on December 10, 1998, are beyond the scope of this proceeding. B. That on the record made, the effect of the April 12, 1997 flood on any particular hollow sounding ceramic tile identified in the Corrective Work Order of January 5, 1999 is not possible to ascertain, although it is considered likely that the flood had some deleterious effect on the adhesion of the tile flooring as a whole. C. That the findings and conclusions expressed by inspector King in the Corrective Work Order, consistent with his testimony, are the best and most persuasive measure of the specific ceramic tile workmanship defects found and reasonably determined to be subject to correction by Respondent, whether the defect is in hollow sounding, miscut or chipped tile, or lipage. D. That while it is noted that the inspector’s findings and conclusions at the time he issued the CWO did not take into account the possible effects of the flood he was then unaware of, but of which he should have been advised by Complainant Krstyen, it is also noted that Thornburg, acting as Respondent’s representative at the jobsite inspection, was then aware of the flood, but did not communicate that information to the inspector until significantly later. E. That the replacement ceramic tile made available by Respondent for purposes of complying with the CWO is from the same manufacturer’s pattern and color dye lot, and is within industry standard as a close match of normal and acceptable variation, notwithstanding Complainants’ subjective perception of a color difference. F. That the failure of Respondent to complete the requirements of the CWO is therefore excused, given valid justification arising from Respondent’s reasonable efforts to comply and the impasse reached as a result of Complainants’ subjectively-based determination that the replacement tile was of an unacceptable color.

APPLICABLE LAW

Arizona Revised Statutes (“A.R.S.”) §32-1154.A provides, in relevant part, that a holder of a license or a person listed on a license shall not commit the following:

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. …

3. Violation of any rule adopted by the Registrar. …

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. …

23. Failure to take corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar.

The Citation and Complaint names A.A.C. R4-9-108 as the rule charged pursuant to A.R.S. § 32-1154.A.3. That rule provides that all work shall be done in a professional and workmanlike manner, and in accordance with any applicable building codes and professional industry standards.

CONCLUSIONS OF LAW

1. To warrant action by the Registrar pursuant to the statutes above, Complainants must demonstrate by a preponderance of the evidence that Respondent violated any one of the statutory sections cited. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). A “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 2. Although the CITATION AND COMPLAINT, as amended, charges a possible violation of A.R.S. § 32-1154.A.2 for disregard or departure from plans and specifications, the resolution and narrowing of the issues accomplished by the parties just prior to hearing resulted in the presentation of evidence addressing solely that issue regarding the flooring, and therefore rendered moot any further consideration of this charged violation. 3. On the evidence presented, Complainants fail to demonstrate any fraudulent or wrongful conduct on the part of Respondent, so no violation of A.R.S. § 32-1154.A.7 is proven. 4. With respect to Respondent’s alleged unworkmanlike efforts, Complainants have sustained their burden of demonstrating violations of A.R.S. § 32-1154.A.3 and A.A.C. R4-9-108, pursuant to the findings and conclusions presented in the Registrar’s Corrective Work Order. “A workmanlike manner means doing the work in an ordinary skilled manner as a skilled workman should do it.” J.W. Hancock Enterprises, Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (1980) (quoting Brown v. Eakins, 220 Or. 122, 348 P.2d 1116, 1117 (1960)). In this instance, it is found and concluded by the undersigned that Respondent failed to meet workmanship standards as specified in the Corrective Work Order with regard to miscut, chipped, and hollow sounding tiles, and lipage. 5. The undersigned further concludes that no violation of A.R.S. § 32-1154.A.23 has been proven, in that Respondent’s failure to complete the corrective action begun was with valid justification, given the impasse reached as a result of Complainants’ refusal to accept the color of the replacement tile made available by Respondent. 6. In that regard, although Complainants would understandably prefer a “perfect” color match by Respondent in replacing the particular ceramic tile identified in the CWO, the Registrar of Contractors can and must only apply a minimum standard of acceptable workmanship. Neither the Registrar of Contractors nor a homeowner should direct a contractor on the manner or method in which it must accomplish corrective work, if such work has been reasonably calculated to accomplish the stated goal in an appropriate manner. In this instance, the undersigned determines that Respondent’s procurement of replacement tile from the same manufacturer’s dye lot was reasonably calculated to accomplish the goal of meeting the workmanship standards recognized by the Registrar of Contractors. 7. The Registrar of Contractors cannot order a trespass to otherwise provide a contractor access to take corrective action determined by the Registrar to be required. For that reason, should Complainants choose, for whatever reason, to limit or prevent access by continuing to refuse Respondent’s manner and method of providing the available replacement tile, then, and in that event, such a refusal to allow the work to go forward may properly be deemed tantamount to Respondent’s compliance with the Registrar’s Corrective Work Order. // // // // // // // // // // //

RECOMMENDED DECISION

On the basis of the foregoing, IT IS RECOMMENDED that the Class B license of Respondent Thornburg Construction Inc., be suspended on the effective date (thirty-five days after issuance) of the Registrar’s Order in this matter, until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate corrective action to comply with the Corrective Work Order. Any unreasonable denial of access by Complainants preventing that corrective action by Respondent, shall be deemed to result in Respondent’s compliance with the Corrective Work Order. IT IS FURTHER RECOMMENDED that if Respondent accomplishes the above- described corrective work on or before the effective date of the Registrar’s Order, or is unreasonably denied access for such purpose, then the license suspension imposed hereinabove shall not take place. Done this day, August 12, 1999.

______________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Registrar of Contractors Mr. Michael P. Goldwater 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