ALJDEC

99F-2308-ROC · Registrar of Contractors · 1999-07-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 21, 1999 at 9:00 a.m. APPEARANCES: Complainant appeared on his own behalf; Respondent appeared through its president, Al Swetnam. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The parties presented evidence and testimony on the issues of whether Respondent violated any statute in failing to cull Carrara marble floor tiles before installation or in failing to prevent the discoloration that appeared on the tiles after installation. Based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT Installation of the Floor The Registrar of Contractors issued License No. 066572, Class B, to Respondent, a corporation, on December 4, 1986. That license was canceled on July 9, 1999 and assumed by License No. 146569, Class B, which the Registrar on that date issued to the same licensee. Sometime in the spring of 1997, Respondent contracted with Complainant to act as general contractor in construction of a residence located on a mountainside. The parties’ contract did not require Respondent to perform landscaping, which was Complainant’s responsibility. After Respondent commenced construction of and poured the slab for the residence, on or about May 20, 1997, Complainant and Respondent entered into a change order that, among other changes, upgraded the floors in approximately 1,200 or 1,500 square feet on the first floor of the residence from made-made ceramic tile to white Carrara marble tile, a natural stone product, at an additional cost of $10,916.00. Respondent referred Complainant to its subcontractor, Mike Flynn of Flynn’s Floor Covering. Because Flynn’s Floor Covering does not routinely deal in marble floors, it in turn referred Complainant to Facings of America, a retail and wholesale supplier of natural stone products. Complainant went to Facings of America’s showroom and picked out the white Carrara marble tile based on a illustrative panel, approximately 3’ by 5’ or 6’, comprised of approximately 60% white Carrara marble tile from the same shipment as was ultimately installed in Complainant’s residence and 40% of another kind of tile for contrast. This illustrative panel showed some variation in shading of the marble tiles. Facings of America’s salespersons are trained to inform customers that natural stone may “wear in,” which process may include some discoloration or scratches. Salespersons are not trained to inform customers specifically that Carrara marble may yellow, however, because the tendency to yellow is not considered to be a defect but rather is an inherent characteristic of certain kinds of white stone, especially Carrara marble. Carrara marble is less expensive than other kinds of marble that maintain a more consistent color. In June 1997, Flynn’s Floor Covering installed the Carrara marble tile that Complainant had selected at Facings of America in the first floor of Complainant’s residence. Mike Flynn, the qualifying party and owner of Flynn’s Floor Covering, testified at the hearing that his employees are trained to test slabs for moisture prior to installation of tile floors and to note any problems in writing prior to proceeding to install the floor. Because George Morales, the employee who actually installed the floor, has worked for Flynn’s Floor Coverings for 18 years, Mr. Flynn believes the slab was tested and that no excess moisture was present prior to installation. In August 1997 Complainant closed on the purchase of the residence and moved in. Within the next month or so, Complainant hired Jerry Collins of Natural Stone to seal the marble tile floor. Mr. Collins used an impregnator, which prevents moisture from penetrating the surface of the tile from above but otherwise allows the stone to “breathe” and any moisture from underneath the floor to evaporate upward through the floor’s surface. In October 1998, some fifteen months after the marble tile floor was installed, tiles in the kitchen and utility room began to turn yellow. Complainant also became concerned about shade variations among the tiles that had been laid in other areas of the floor. Complainant contacted Respondent, who arranged several jobsite inspections, at least some of which representatives of Facings of America (the supplier), Flynn’s Floor Coverings (the installer), Natural Stone (the sealer) and Complainant’s two experts attended. In late October or early November 1998, Complainant retained expert Ralph Williamson, CTC,[1] a ceramic tile consultant who has some experience in natural stone floors. Mr. Williamson checked the floor with a moisture meter and found excess moisture in the center of the tiles that were beginning to turn yellow. Mr. Williamson also opined that, in certain areas, the tile had not been culled or sorted properly, which resulted in an unacceptable patchwork effect. The consensus among the persons having experience with natural stone was that the yellowing visible on certain parts of the floor was caused by moisture reacting with the high iron content in the white Carrara marble. A consensus also was reached that the source of the moisture was the slab or ground beneath the slab, since the impregnator sealant should have prevented moisture from penetrating the surface of the floor. On November 25, 1998, after Complainant contacted the Registrar’s office, the Registrar’s inspector Phil Coscia performed a courtesy inspection and suggested that a test be performed to identify the source of the moisture that was causing the marble to turn yellow. At the courtesy inspection, Inspector Coscia also opined that the unintended patterns in the floor caused natural variations in the shades of the tile evidenced poor workmanship. On or about December 2, 1998, Respondent hired American Leak Detection to perform a test to determine whether any of the pipes in the slab were leaking. American Leak Detection’s performed an air pressure volume test and found no detectable leaks. According to Ben Markley, Respondent’s construction supervisor, an air pressure volume test can detect the most minute leak in the domestic water supply and the negative result indicates an external source of the moisture. Complaint to the Registrar On January 28, 1999, Complainant made a complaint to the Registrar against Respondent’s license, alleging that the marble was turning yellow and that the tiles were “not sorted properly.” On March 24, 1999, Inspector Coscia performed a jobsite inspection and, on behalf of the Registrar, on March 26, 1999, directed Respondent to “determine cause, properly correct and replace yellowing marble tile as needed.” Inspector Coscia reconsidered his original opinion with respect to Respondent’s alleged failure to cull the tiles and found that the shading variations did not evidence poor workmanship because “[t]his is a naturally-formed tile[,] chosen by [Complainant] and sealed by others following installation by [Respondent’s] subcontractor.” Complainant requested a hearing and, on April 23, 1999, the Registrar issued a Citation and Complaint that charged Respondent with violations of A.R.S. § 32-1154(A)(7), (23), and (3). Respondent timely answered, asserting the defenses as to which it presented evidence at the hearing, described below. Expert and Anecdotal Evidence Presented at the Hearing Regarding the Yellow Discoloration Complainant’s expert Mr. Williamson testified that the Marble Institute recommends that a vapor test be performed and a vapor barrier be installed before marble tile is laid. Mr. Williamson also conceded, however, that white Carrara marble will turn yellow if exposed to water and that, for a vapor barrier to be effective for marble tile, it should be installed before the slab is poured, between the slab and pad. This kind of installation is used in only approximately 20% of the natural stone floors installed nationwide and an even smaller percentage in Arizona. In addition, no such vapor barrier could have been installed here because Complainant did not request the upgrade to marble tile until after the slab had been poured. In addition, Mr. Williamson testified that a moisture test is performed in only approximately 20% of natural stone floor installations nationwide. Mr. Williamson finally testified that the problem with yellow discoloration is getting worse. When he originally examined the floor in November, 1998, discoloration due to excessive moisture was present only in the kitchen and utility room. By early summer 1999, tiles in the entry way had begun to discolor and a moisture meter indicated increased moisture, which had not been present six months earlier, when he first tested the tile for moisture. After Complainant made the formal complaint to the Registrar, he also retained expert Dennis M. Drosky, CTC, who has approximately 20 years of experience installing natural stone floors. Mr. Drosky also admitted that most marble floors are installed without a vapor barrier. Mr. Drosky recommends that Respondent take a core sample of the slab, which is a core cut through the slab to the underlying soil, to isolate the external source of the water. According to Mr. Drosky, the core sample will not identify whether moisture was present in the slab or in the tile when it was installed, however. Jerry Collins of Natural Stone, whom Complainant hired to apply the sealant, testified that no discoloration was visible when he sealed the floor, approximately two or three months after it was installed. Light- colored stone, especially Carrara marble installed on the ground floor of a building, frequently turns yellow if it is exposed to any moisture whatsoever because of its high iron content. Because water is used to cut and polish the stone, frequently it is shipped with some yellowing. Mr. Collins also testified that, although the yellowing may be removed by applying a poultice to the tile, unless the source of the moisture is identified and eliminated, the yellowing will recur. Because it is frequently difficult to identify the source of external moisture, most owners of marble floors that show some yellow simply live with the floor and consider it a characteristic of the natural stone floor, not a defect. Two local installations that evidence Carrara marble’s natural tendency to yellow are in the Internal Revenue Service building and in the Dillard’s Department Store at Paradise Valley Mall. Mike Flynn, the owner of installer Flynn’s Floor Covering, testified that, although he had no experience with Carrara marble when he installed the floor, he has since learned Carrara tile frequently turns yellow. Mr. Flynn offered into evidence a tile from the same shipment that had been installed at Complainant’s residence that had been stored in Complainant’s garage for the past two years, which showed some slight yellowing (Hearing Exhibit B). He also offered into evidence a Carrara marble tile from a supplier other than Facings of America, which also had never been installed and which showed slight yellowing (Hearing Exhibit A). No witnesses were able to identify the source of the moisture that is causing the marble tile to turn yellow or to attribute it with any certainty to anything that Respondent did or failed to do. The water might be coming from Complainant’s landscaping, which Respondent did not construct, his neighbors’ landscaping, a subterranean stream, or runoff from the mountain. Respondent’s construction supervisor Ben Markley noted that the areas that first started turning yellow were located over where the sewer trench had been dug and where the stem walls were located. Based on the locations where the tiles first showed yellowing, Mr. Markley suggested that the stem walls and sewer trench might be acting as a dam to create a concentration of moisture from external sources and then acting as a wick to bring the moisture up through the floor. Inspector Coscia testified that he was not sure whether anything could be done about the yellowing. No other witness was able to testify with certainty what needed to be done to correct the yellowing and prevent the condition from recurring. Regarding Respondent’s Alleged Failure to Cull Like-Colored Tiles Complainant’s expert Mr. Williamson testified that the supplier should have prepared a mockup of the Carrara marble to show its shading and characteristics. Before installing the tile, Respondent’s subcontractor should have culled the tile to avoid patches of lighter or darker tiles adjacent to one another. Mr. Williamson offered into evidence photographs of Complainant’s floor that show some patches of lighter tiles against darker tiles. Complainant’s expert Mr. Drosky testified that Respondent’s subcontractor should have opened all the boxes of Carrara marble tile on the pallets used for installation and taken two from one box, two from another, and so on to avoid any patchwork effect. Mr. Collins of Natural Stone (the sealer), Mr. Flynn of Flynn’s Floor Coverings (the installer), and Richard Vangilse of Facings of America (the supplier) testified that the variation in the marble floor was no greater than is usual and did not exceed industry standards. Mr. Flynn offered into evidence photographs of the Carrara marble tile installation at the Dillard’s Department Store in Paradise Valley Mall, which showed patterns very similar to the patterns visible in Complainant’s photographs of the floor at issue. According to Mr. Collins, Complainant did not complain about the shading until the third or fourth inspection scheduled with respect to the yellowing, well over a year after the tile had been installed and sealed. Inspector Coscia testified at the hearing that, although he originally thought that Respondent’s failure to cull the tiles may have resulted in a workmanship deficiency, he had since reconsidered his original opinion and had come to the conclusion that such culling would not be cost-effective. Inspector Coscia no longer feels that Respondent should be required to remedy variations in shade in the marble floor. All of the witnesses agreed that, aside from the yellowing and shade variations, the installation of the Carrara marble tile floor was exemplary. CONCLUSIONS OF LAW In this administrative proceeding, Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence. See A.A.C. R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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 at page 1064 (6th ed. 1990). A preponderance of the evidence of record does not establish that Respondent violated A.R.S. § 32-1154(A)(7),[2] (23),[3] or (3)[4] with respect to its alleged failure to cull the tile prior to installation. The installation at issue was similar to comparable installations and, in fact, Complainant sealed the floor and apparently was not troubled by variations in the shade of the tile until he had lived with the variations for more than a year. A preponderance of the evidence of record also does not establish that Respondent violated A.R.S. § 32-1154(A)(7), (23), or (3) with respect to its installation of Carrara marble tile that later turned yellow in certain areas. Complainant presented no evidence that Respondent or its subcontractor did anything in the installation that would have caused the yellowing or failed to do anything that would have prevented it. Rather, all the knowledgeable witnesses agreed that any Carrara marble tile will turn yellow if exposed to moisture because of its high iron content. The source of the moisture has not been identified or attributed to Respondent’s construction of the residence. The fifteen-month delay in the appearance of the yellowing and the presence of increased moisture in areas that previously had been dry tends to support an inference that Respondent could not have anticipated or predicted the yellowing at the time of installation. Although Complainant might have a claim for failure to warn against the supplier of the tiles, Facings of America, which would be beyond the scope of this proceeding, no evidence was presented that applicable industry standards required Respondent or its subcontractor Flynn’s Floor Coverings to warn Complainant about a possible risk that neither contractor knew even existed until it became an actuality. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar dismiss the Citation and Complaint in Case No. 99-2308 against Respondent, License No. 066572, Class B. Done this day, August 10, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

By ___________________________

----------------------- [1] The initials stand for “Ceramic Tile Consultant,” which means a graduate of the Ceramic Tile Institute. [2] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.”

[3] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure to take appropriate 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.”

[4] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826