ALJDEC

99F-2372-ROC · Registrar of Contractors · 1999-08-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 2, 1999. APPEARANCES: Joseph and Victoria Thompson as Complainants; John Ratcliff, Registrar of Contractors Inspector; No appearance by Respondent. ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors. FINDINGS OF FACT 1. The Complainants, Joseph and Victoria Thompson, contracted with Ermanno Ciummo, the Respondent on or about November 3, 1998 to install saltillo tile outside of their home for $1,198.00. The tile was to extend from another saltillo tile patio and run down some stairs to the pool area. When the work was finished, however, Complainants observed that the tiles appeared mottled and damaged, that the grout did not appear to match the old grout and, later, that cracks were forming in some of the tiles. 2. On February 13, 1999, Victoria Thompson filed a complaint with the Registrar of Contractors saying, “Contractor did not use Grout Release before grouting. Contractor used diluted Muratic (sic) Acid to clean grout stains. Tiles are now turning Brown (sic) and do not match existing tiles. Contractor did not use proper grout color. Contractor stated he knew how to do tile work.” 3. On March 19, 1999, Registrar of Contractors Inspector Marty Di Antonio issued a letter to Complainants stating that he had not found sufficient evidence to justify a request by the Registrar of Contractors of a citation against the contractor’s license. 4. On March 26, 1999, Ralph Williamson, an independent investigator, wrote a letter to Complainants confirming that he had inspected the tile and opining that the tile was damaged due to improper application of muriatic acid to clean the tiles rather than applying grout release prior to grouting. He also stated in the letter that the grout was not even and not the proper depth in some places. 5. On March 26, 1999, Complainants wrote to the Registrar of Contractors stating that they disagreed with the Registrar of Contractors inspectors decision and requesting a hearing. 6. On April 6, 1999, Mr. Di Antonio wrote to Respondent stating that a request for citation against his license had been received and advising him to contact the inspector. 7. On April 30, 1999, the instant Citation and Complaint was filed with the Registrar of Contractors. It cited potential violations of A.R.S. §32-1154(A)(3) and (7). In response, Respondent filed an answer on May 14, 1999 stating, “It was allready (sic) established by the Registrar of Contractors that I was not at fault and the complainant was aware before tiles were installed that they did not match, I showed them to her but she told me to go ahead and install then anyway mixing them up as best as possible. The Thompsons have a history of complaining, they have also filed against their builder and possibly anybody esle (sic) that works at their home.” 8. Complainants appeared at hearing. Also present was another inspector from the Registrar of Contractors named John Ratcliff. Mr. Ratcliff testified that he had received this case because Mr. Di Antonio would no longer be with the Registrar of Contractors. Mr. Ratcliff did a pre-hearing inspection of the tiles and found that his opinion differed considerably from Mr. Di Antonio’s. 9. Mr. Di Antonio had found that there were no standards for saltillo tile and therefore, no corrective work should be ordered. Mr. Ratcliff agreed that there were no set standards in the industry for the making of saltillo tile. However, he found that the reason for the discoloring of the tile was not how it was made but how it was installed. He testified that grout release had not been used and that consequently the grout had filtered down into the tile and had been washed off with something (he did not have an opinion as to whether it was muriatic acid or what) which discolored the tiles making them appear very mottled. Mr. Ratcliff found that the difference in grout color was not due to poor installation but that grout changed color over time and could not be very closely matched but that there was some grout which was cracking badly. He also found that the tiles were cracking in two areas, something which had not been present at the time of the first inspection by Mr. Di Antonio. 10. Mr. Ratcliff did not issue a Corrective Work Order because a citation and complaint had already been issued in the matter; however, he did believe that the contractor should have had to repair the work by replacing cracked tiles and cracking grout and correcting the tile color. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1156 and 41-1064. 2. The burden of proof at an administrative hearing is generally upon the Complainant. Utah Construction Company v. Berg at al, 68 Ariz. 285, 205 P.2d 367 (1949). Further, the standard of proof at hearing is a “preponderance of the evidence”. Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). 3. Pursuant to A.R.S. §32-1154(A)(3) and (7), a contractor in the State of Arizona may have his license suspended or revoked for violation of any rule adopted by the Registrar of Contractors or by doing a wrongful or fraudulent act as a contractor which results in substantial injury to another person. 4. Pursuant to A.A.C. R4-9-108, the Registrar requires that contractors perform all their contracted work in a professional workmanlike manner. 5. In this case, Complainants have established that Respondent did not install the tile in a professional workmanlike manner. The weight of the evidence has shown that it is standard knowledge in the industry that grout release must be put on saltillo tile before grouting. Failure to apply the grout release resulted in a ruined look to the Complainants’ patio. Further, some tiles have cracked and some grout has cracked. These matters need to be repaired as well. RECOMMENDATION In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, (thirty-five [35] days after the date of mailing by the Registrar of Contractors) that Respondent’s Class B license be temporarily and actively suspended until the Registrar receives proof that Respondent has corrected the tile color (including removal and replacement if necessary), repaired the cracked grout, and replaced the cracked tile on Complainants patio. Done this day: August 6, 1999. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang 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