ALJDEC

99F-2549-ROC · Registrar of Contractors · 1999-10-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 15, 1999 APPEARANCES: Complainant Al Shefler appeared on his own behalf. Maria Gotzev appeared on behalf of the Respondent. ROC Inspector Joe Cotten was also present. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ 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 Director of the Arizona Registrar of Contractors.

FINDINGS OF FACT 1. Al Shefler (the “Complainant”) is the owner of a home located at 11457 East San Juan Tabo, Scottsdale, Arizona. Eurostone, Inc. (“Respondent”) is a licensed general contractor. Maria Gotzev is Respondent’s Vice President and Secretary.

2. In November of 1997, the Complainant and the Respondent entered into a contract for the Respondent to install a travertine stone floor throughout Complainant’s home. In April of 1998 Complainant tendered a check in the amount of $1,400.00 to Respondent. See Complainant’s Exhibit 1. Complainant testified that this payment was for the purchase of diamond pads in order to properly finish the floor. Complainant testified that the equipment for which he paid, specifically, diamond pads were never purchased. Consequently, Complainant is seeking reimbursement in the amount of $1,400.00. Respondent testified that the pads were purchased, but did not have any receipts at the time of this hearing.

The Respondent completed the tiling project in May of 1998. Complainant testified that prior to the completion of the project, the Respondent’s work crew was called off of the job. The actual honing of the floor was completed by Respondent and Maria Gotzev. Complainant further testified that he was present during this time and questioned the technique and type of equipment, such as mops, utilized by Respondent and Maria Gotzev.

Complainant testified that upon completion of the project, he complained to Respondent about the way the floor appeared. He testified that there were indentations in the tile and that the tile was uneven. Complainant testified that he was assured by the Respondent that the floor simply needed to age.

On March 3, 1999, Complainant filed a Complaint with the Registrar of Contractors (“ROC”).

On or about March 11, 1999, ROC Inspector Dragoon scheduled a job site inspection for April 14, 1999 at the home.

In the interim, Complainant hired expert, Ralph Williamson to inspect the floor. Mr. Williamson, in a letter dated March 21, 1999, stated the following: [Respondent] “did not do a quality job of honing your floor. There are saw marks that are still penetrating in your stone, with proper equipment they can be removed. You can see streaks on top of the stone caused from the stone not being properly cleaned before it was sealed….In summary, if you were promised a honed floor you did not receive one. The floor should be honed and polished to give it an even finish and no saw marks.” See Complainant’s Exhibit 2.

On or about April 14, 1999 ROC Inspector Dragoon inspected the home. Inspector Dragoon, Complainant and Respondent were present for this inspection. Inspector Dragoon’s findings dated April 27, 1999, were inconclusive and a corrective work order was not issued.

Complainant hired a second contractor, Natural Stone Care, Inc. to strip, hone, and seal his travertine floor. Complainant expended an additional $8,800 for this service. Complainant testified that he was present when Natural Stone Care performed the requisite work. He further testified that the technique and equipment, such as high powered vacuums, utilized by Natural Stone Care, Inc. were much more sophisticated than those utilized by Respondent. The work was completed on September 15, 1999. See Complainant’s Exhibits 3, 4, and 5.

ROC Inspector Cotten conducted a second job site inspection at the home on October 14, 1999. He testified that currently the floor is finished and grouted. Although in certain lighting, such as daylight, at certain angles, saw marks are still visible.

The undersigned Administrative Law Judge finds Complainant’s testimony to be credible. The undersigned Administrative Law Judge finds that the Respondent failed to perform in a workmanlike and professional manner when it completed the installation of the travertine floor. The floor was not properly honed and continues to reveal saw marks. The undersigned Administrative Law Judge finds that Respondent’s failure to perform in a workmanlike manner is a wrongful act that resulted in the Complainant being substantially injured. The Complainant has endured financial hardship due to the Respondent’s failure to properly hone the floor.

CONCLUSIONS OF LAW The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (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). 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 (6th ed. 1990).

The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. (32- 1154(A)(3) and R4-9-108 as set forth in Findings of Fact # 12.

The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has violated A.R.S. (32- 1154(A)(7) as set forth in Findings of Fact # 12.

The undersigned Administrative Law Judge concludes that grounds exist to revoke or suspend the Respondent’s Class C-05 license pursuant to A.R.S. (32-1154.

RECOMMENDED DECISION In view of the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar), that the Class C-05 license of Respondent shall be suspended until the Registrar of Contractors receives proof that Respondent has performed the following: Respondent shall pay $1,400.00 to Complainant as reimbursement for the amount Complainant tendered to Respondent for the purpose of purchasing diamond pads and supplies for the finishing of the travertine floor.

It is further recommended that if the Respondent reimburses the aforesaid sum on or before this Order’s effective date, then no license suspension shall be imposed.

Done this day, October 19, 1999.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of October, 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