ALJDEC

99F-2590-ROC · Registrar of Contractors · 1999-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 2, 1999 APPEARANCES: COMPLAINANT: Beatrice Bokmann, on her own behalf. RESPONDENT: By Duane Boyken, qualifying party and authorized representative; with Anne Geach, partner.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ This matter proceeded to hearing on December 2, 1999, to determine whether Respondent violated state law as alleged by Complainant 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, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made and submitted to the Registrar of Contractors: FINDINGS OF FACT 1. Complainant Beatrice Bokmann (Bokmann) is the owner/landlord of a single family dwelling located at 10545 North 73rd Drive, in Peoria, Arizona, which residence she has rented for about 3 years to tenant Rachel Chavez (Chavez) and her family.

2. According to the current records of the Registrar of Contractors, License No. 110494, Class C-31, is held by partners Duane Boyken (Boyken) as the qualifying party, and Anne Geach (Geach), dba G B H Masonry. (In testimony at hearing, Boyken and Geach identified G B H Masonry as a Limited Liability Company (LLC), with both corporate officers, and with Boyken still qualifying party and acting herein as authorized representative of the corporation. Consistent with the Registrar’s additional records regarding the partnership, Boyken also confirmed that the company held commercial License No. 110798, Class C-31). 3. According to the testimony of Bokmann, sometime in approximately early July, 1998, Bokmann’s tenant Chavez advised her that the shower at the residence was leaking. When Bokmann’s handyman could not determine the cause or correct the leak, he advised Bokmann to get a licensed contractor. 4. Bokmann called Boyken regarding the problem, testifying at hearing that she told him of the leak, and asking if he could fix it. 5. Bokmann had previous limited dealings with Boyken on several projects of a limited nature, on different properties in which she had an interest, including repair of a damaged exterior wall. 6. According to Boyken’s testimony, he viewed the shower, noting carpet moisture in the area of a bathroom adjacent to the shower, and “plastic surround” in the shower, put up at a point in time unknown to him, as an apparent means of preventing the shower spray from reaching the walls. 7. Boyken concluded that there was no obvious leak, but that water was getting through the shower walls, causing them to deteriorate, such that to fix the walls would fix the leak. 8. Administrative notice is taken that Boyken then proposed, in a document dated July 13, 1998, on the letterhead of “G B H Masonry Construction, LLC” :

We propose to furnish all labor and materials necessary to complete the following: Price is for removing existing shower walls and sheet rock, replacing damaged 2 x 4 studs, replacing sheet rock with greenboard, and tiling shower walls.

All of the above work to be completed in a substantial and workmanlike manner according to standard practices, for the sum of:

Nine Hundred Seven & no/100 Dollars. Payment to be: Upon Completion.

Any alteration or deviation from the above specifications involving extra cost of labor and/or materials will only be upon written orders for same, and will become an extra charge over the sum mentioned in this contract. All agreements to be made in writing. . . .

[Bold typeface added by the undersigned to emphasize language of this particular contract; all other wording is pre-printed language contained on Respondent’s “proposal” form.]

9. Although the proposal is signed by Boyken but not Bokmann, there is no doubt, and it is so found, that Bokmann accepted the proposal without written modification and authorized Respondent to proceed with the work. 10. Boyken stated that the work he contracted to perform was completed by himself and an assistant by the end of July, 1998, but he was soon advised by Bokmann that the shower still leaked. 11. In the interests of his company’s reputation, Boyken then performed additional work at his own expense and over the course of several months, which work included eventually tiling the floor of the shower over the existing tile, and then, when the leakage still existed, removing both layers of tile to the concrete slab, and re-tiling the floor, after which he sealed around the existing drain, which was too rusted to remove. 12. Bokmann testified that when she had explained the shower problem to Boyken, he had stated he had experience in doing similar tile repair work, but did not tell her that tile installation was beyond the scope of his Arizona contracting license. 13. Boyken testified that he had extensive experience in tiling, both by the hour for other licensed contractors in Arizona, and before that, under a masonry license he held in Iowa, where such license included tile installation, unlike the separate Arizona license classifications. He conceded he had not discussed the scope of his license with Bokmann before proposing and performing the shower repair work. 14. When evidence of a continuing leak remained, Bokmann then filed the complaint herein with the Registrar of Contractors on March 10, 1999, alleging “Shower base still leaking damage to the house. Tile came of[f] bottom of shower.” 15. After a jobsite inspection on April 22, 1999 (with Bokmann present but no one for Respondent), by the Registrar’s inspector, John Ratcliff, he then issued his Corrective Work Order (CWO) on April 29, 1999. 16. In the CWO, inspector Ratcliff determined that the following action was to be taken: NOTE - THIS CONTRACTOR IS TO HIRE A PROPERLY LICENSED CONTRACTOR TO MAKE THE FOLLOWING REQUIRED CORRECTIONS.

COMPLAINT #1 - SHOWER LEAKS. THE CONTRACTOR IS TO DETERMINE THE CAUSE AND CORRECT BY THE APPROPRIATE MEANS.

COMPLAINT # 2 - EDGES. THE CONTRACTOR DID NOT USE THE INDUSTRY STANDARD BULLNOSE TILE ON THE TOP AND SIDE EDGES. THE CONTRACTOR IS TO CORRECT BY THE APPROPRIATE MEANS.

17. By administrative notice of documents contained within the Registrar’s file, and consistent with the testimony taken, it is found that Respondent hired Brett Sherry (Sherry), on behalf of licensed tile contractor Design with Tile, Inc., to perform repair work on or about June 14, 1999. Sherry described the work performed as follows in his invoice of that date to Respondent: Repair shower leak by removing shower door and chalking crack in grout joint where shower [curb] meets shower wall on both sides of [curb] at wall. Reinstall shower door and chalk it in as well. We used clear silcon chalking at every possible place we think water could get out.

Design with Tile is in no way responsible for any other leaks that may be in shower. Due to the age of shower pan and floor. We did as directed by the Board of Contractors for this problem.

18. Notwithstanding the repair, the evidence of an ongoing leak continued, according to the testimony of Bokmann and her tenant, Chavez, so Bokmann requested administrative hearing. 19. As a result, the Registrar of Contractors then issued CITATION AND COMPLAINT in Case No. 99-2590, charging Respondent with possible violations of A.R.S. §§ 32-1154.A. 3 (and A.A.C. R4-9-108, the workmanship rule), .7, .17, and .23. 20. Geach timely filed a written answer for Respondent, asserting that work had been done (by Sherry) per the Registrar’s Corrective Work Order. 21. The essence of Complainant's position is that she hired and paid Boyken $907.00 based on her expectation that he would fix the leak in her shower, not just repair water damage and tile the structure, and that she was not aware that the scope of his company’s license did not cover such repair work, but that the leak remained despite Respondent’s efforts, and others Respondent hired, and would require additional repair to make the shower usable. 22. The position of Boyken, for Respondent, is that first; he is experienced in tile installation, and previously licensed in another state which included such work in his masonry license there - unlike his Arizona specialty license classification C-31 - and his shower repair and tile work therefore met all workmanship and quality concerns. 23. Secondly, Boyken contends that the specific terms of the contract agreement (Finding No. 8, above) were met, and did not require or guarantee repair of any leak, but that in the interest of his company’s reputation, he made significant efforts over and above the contract terms to try to correct the leak, and then abided by the CWO to hire a licensed contractor for the corrective work. 24. Inspector Ratcliff testified to explain his findings and conclusions after his initial inspection on April 22, 1999, and his pre- hearing inspection on December 1, 1999: he confirmed that repair work had been done subsequent to the CWO, but that evidence of a continued leak was apparent. 25. Inspector Ratcliff testified that subsequent to the issuance of the CWO, he had gained further information that caused him to conclude that the particular size tile used by Respondent in this case was not made in a “bullnose” edge, such that the second item of the complaint did not require further action. 26. Inspector Ratcliff then confirmed that the scope of the license held by Respondent was for masonry but not tile work, and that he could not speak to Boyken’s prior experience or scope of contracting licensure in other states, but that the tile work in this case exceeded the scope of Respondent’s masonry license. 27. Inspector Ratcliff further stated the Registrar’s policy was that it would be a contractor’s responsibility to determine if a particular job required the expertise of one or another license specialty, or both; in this instance, for example, a plumber to determine and possibly correct the source of a leak, and a tile setter to perform tile work. 28. Finally, Inspector Ratcliff confirmed that on the basis of his brief (and non-destructive) inspections, he could not be certain of the exact cause of this leak, nor were his inspections intended to make that determination.

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:

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. … 17. Knowingly contracting beyond the scope of the license or licenses of the licensee. …

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. Also applicable herein are the C-31 and C-48 specialty residential contracting license classifications, with the scope of each defined by the Registrar of Contractors:

C-31 MASONRY Installation of, with or without mortar, stone, structural glass, brick, block, baked clay, or other products common to the industry. This scope includes all C-31 subclassifications. C-31R Flagstone C-31R Stone Masonry … C-48 CERAMIC, PLASTIC & METAL TILE Installation and repair of ceramic and facsimile tile products common to the industry. This scope includes the C-48R subclassification. C-48R Swimming Pool Tile

CONCLUSIONS OF LAW 1. To warrant action by the Registrar pursuant to the statutes above, Complainant Bokmann must demonstrate by a preponderance of the evidence that Respondents Boyken and Geach, dba G B H Masonry, 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. The evidence of record, by a preponderance, supports the conclusion that Respondent’s workmanship, in and of itself, and even if beyond the scope of license, met minimal standards, albeit without correction of the underlying leak. “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)). Such definition appears to meet the structural and tile work accomplished to date by Respondent or its agents. 3. Then, on the evidence of record, Complainant fails to demonstrate any fraudulent conduct on the part of Respondent, so no violation of that term of A.R.S. § 32-1154.A.7 is proven. 4. However, with respect to Respondent’s alleged wrongful conduct (A.R.S. § 32-1154.A.7) and contracting beyond the scope of license (A.R.S. § 32-1154.A.17), Complainant has sustained her burden of demonstrating violations of those terms. 5. The nature of the wrongful act by Respondent is deemed evident in that the shower leak, the very reason for which Complainant sought Respondent’s services, remains uncorrected. That fact renders moot the quality of Respondent’s initial contract work (and efforts to limit responsibility under contract) and subsequent repair efforts, given that unless and until the leak is corrected, all other repairs -whether within or outside the scope of license - are to no avail or purpose, and will not last, and in essence, should not have been done. 6. The resultant substantial injury to Complainant from the wrongful act is deemed evident in that additional time and expense remain necessary to meet Complainant's reasonable expectation that the shower leak be stopped and that the shower once again be useful for its intended purpose. 7. With regard to contracting beyond the scope of the Class C-31 masonry license, the evidence is undisputed that the tile work, at least, done by Respondent is not included in that classification, notwithstanding a workmanlike result apparently based on Boyken’s prior experience in that skill . To the extent Respondent wishes to contract in Arizona based on that skill, its option is to seek appropriate additional licensure in the C- specialty classification. 8. Finally, the record demonstrates that Respondent did not fail to take reasonably appropriate corrective action, through a licensed contractor, in an attempt to comply with the Registrar’s Corrective Work Order directive, even if such remedial efforts were not ultimately successful in meeting the directive that the shower leak cause be determined and corrected. Therefore, no violation of A.R.S. § 32-1154.A.23 is proven.

RECOMMENDED DECISION On the basis of the foregoing Findings of Fact and Conclusions of Law, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order to be entered in this matter, the Class C-31 license, no. 110494, of Respondent shall be suspended until the Registrar of Contractors receives credible written proof that Respondent has accomplished, through an appropriate licensed contractor as necessary, effective remedial work to stop the shower leak and meet its overall contractual and consequential responsibilities, consistent with this decision. IT IS FURTHER RECOMMENDED that, if Respondent accomplishes the required corrective work on or before the effective date of the Order entered in this matter, then the above license suspension shall not take place. // // //

In addition, IT IS FURTHER RECOMMENDED that, Respondent’s Class C-31 license shall be placed on disciplinary probation for a period of four (4) months, commencing on the effective date of the Order, or the date on which notice is filed with the Registrar of Respondent’s compliance with the corrective work required, whichever date is later. Done this day, December 20, 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