ALJDEC

99F-M0726-ROC · Registrar of Contractors · 1999-08-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matter came on for hearing on August 9, 1999 pursuant to advance notice duly sent to both parties. The Complainants appeared through Joyce Lindbeck, and the Respondent failed to appear. Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. The start of the scheduled hearing was delayed for over twenty minutes so as to allow more time for an appearance by Respondent. However, Respondent did not appear at the hearing either through its owner or through any authorized legal representative despite a showing in the case file that the written notice of hearing had been properly transmitted to the correct address of record for Respondent.

2. At the outset of the hearing, an amendment to the within complaint and to the case caption was permitted so as to reflect that Joyce Lindbeck, being the wife of Steve Lindbeck and having a share of the ownership of the subject residential property, is an additional Co-Complainant in this administrative action.

3. The uncontroverted evidence at the hearing revealed that Respondent, through its qualifying employee, agreed to and did perform tile installation work on both the interior and the exterior of Complainants’ home. All tile materials were furnished by or on behalf of Complainants, and the parties’ agreement related solely to the labor necessary to install the tile.

4. Respondent completed the installing of (a) slate tile in the kitchen, dining room and hallway; (b) Mexican tile on the countertops in the kitchen, including an island and a pass-through sill (the sill also being constructed by Respondent); and (c) Saltillo tile on the exterior front and rear patios.

5. The cost price agreed upon and fully paid by Complainants to Respondent for all of the above-identified tile installation work was the aggregate amount of $2,649.00. The credible testimony further indicated that Complainants had expended the sum of $3,275.00 for the Mexican tile used on the countertops and the sum of $1,814.00 for the slate tile materials. The cost to Complainants of the Saltillo tile materials was not clearly established.

6. The results of Respondent’s installation work were shown to have been substandard and unacceptable in numerous areas and aspects. Many slate and Saltillo tile pieces had broken or cracked excessively, and other pieces had improperly failed to properly adhere, becoming loose and lifting. The visible surfaces of numerous Saltillo tile pieces had become mottled and unattractively discolored. Much of the grout was cracking, flaking and otherwise deficient throughout the floor tile and countertop installations. Additionally, the construction by Respondent of the sill at the kitchen pass-through, upon which some of the countertop tile had been placed, was defective and in need of appropriate corrective measures.

7. The above-described tile and grout deficiencies are found and determined to reflect adversely upon Respondent’s workmanship. Moreover, Respondent was shown to be unresponsive to Complainants’ numerous and repeated requests and demands, reporting the above-described deficiencies and seeking the performance of proper remedial work. A complaint was ultimately filed with the Registrar of Contractors, and a representative for Respondent did attend a jobsite inspection conducted by the Registrar’s assigned Inspector.

8. A written directive was issued by the Inspector to Respondent requiring that all broken or cracked Saltillo or slate floor tiles must be replaced and that certain surface areas which were in need of re-grouting, including numerous tile areas on the kitchen countertops, must be properly repaired. However, Respondent not only waited until the very last day specified in the directive as a completion deadline for such corrective work before starting to rectify the confirmed problems, but also never completed the repairs-in-progress. In point of fact, after removing many tile pieces, together with the adjacent grout and the underlying adhesive materials, Respondent allowed the debris to remain on the household floors and on the exterior patio slabs, neither cleaning up nor returning to finish the incomplete repair work.

9. By failing or refusing to timely and appropriately rectify its poor workmanship, Respondent has not even remotely complied with the Inspector’s written directive and is further determined to have committed a wrongful act to the detriment of the homeowners within the meaning of another specified provision of the State’s contracting laws charged hereunder as having been violated by Respondent.

10. The evidence tended to indicate that the Mexican tile used on the countertops may be unavailable at present time, likely resulting in far more costly corrective action if some of the tile is damaged or rendered not re-useable during and

after the attempted remedial work. Additionally, the improperly constructed sill at the pass-through location must be rectified after removing and before re-installing the countertop tiles.

11. The overall course of conduct by or attributable to Respondent is found to reflect a blatant disregard of the comforts and entitlements of its customer/homeowner as well as of its own obligations as a licensed contractor in this State.

12. By the failure of Respondent to appear at and participate in the scheduled hearing of this matter, no evidence in defense or in mitigation of the charged violations was presented to the tribunal.

13. Notice is taken of the Registrar’s license records which reveal that Respondent’s Class C-48 license has recently been revoked, effective as of July 19, 1999, by final Orders of the Registrar in Cases Numbered M99- 0847 and 99-1936, both resulting from Respondent’s default in filing an answer to the formal Citations issued in those matters. Such license revocations do not prevent the Registrar from conducting and further processing the instant disciplinary proceeding based upon the complaint filed by these Complainants which is expressly authorized under the provisions of A.R.S. §32-1154(C). A realistic impact of a subsequent revocation Order in this matter which has advanced to the hearing stage, if allowed to become final at a later date, would elongate the time period before which any person named on Respondent’s license becomes eligible to apply for and receive another contractor’s license,[1] thereby serving to underscore the extent of Respondent’s poor performance as a licensed contractor.

14. The inclusion of reasonable corrective work conditions or even restitutional monetary conditions in the Order to be entered in this case would appear not to be warranted, since the license may not be restored to Respondent after compliance with any such conditions in light of the already-revoked status of its license.

CONCLUSIONS OF LAW

1. The undisputed evidence of record adequately established the Respondent has violated the provisions of A.R.S.§32-1154A(7),(23) and (3); namely, Rule R4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s Class C- license shall be revoked on the effective date of the Order entered in this matter.

Dated: August 17, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Mr. Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo ----------------------- [1] The minimum eligibility date for re-licensure of a revoked contracting entity, or of any individuals named or listed on the license, is one year after the effective date of the last revocation.

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