ALJDEC decisions subject to certification as final

06F-1900-ROC · Registrar of Contractors · 2007-01-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 2, 2007. APPEARANCES: Jonette Wylie appeared personally. Kenneth Jay Frango appeared personally ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the entire record in this matter, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Kenneth Jay Frango, doing business as Kenneth J. Frango (“Respondent”), is the holder of License No. 108590, a Class C-08 contracting license issued by the Registrar of Contractors. 2. In early 2004, Barbara and Jack Jehn were building a new residence in Goodyear, Arizona. The Jehns hired Sukman’s Inc. as their interior designer. 3. Sukman’s Inc. hired Respondent to install wood laminate flooring throughout the Jehns’ residence. 4. From April 17, 2004 through April 19, 2004, Respondent performed a site inspection of the subject property. As a result of Respondent’s inspection, he created an itemized checklist identifying the following conditions as being “PER INDUSTRY STANDARDS”:

• Inspected outside for improper drainage or obvious sources of moisture…ok • Driveways and sidewalks drain water away from the foundation of the home…ok • Lawn sprinklers do not direct water toward the foundation…no irrigation • Soil slopes away from the foundation at least ½ inch per foot for 10 feet…ok • Gutters, downspouts and spill-caps are clean and in good repair…none • Moisture reading is 1 – 2.5% (less than 4.5%, or moisture vapor emission rate is less than 5 lbs/1000 sq ft in 24 hours on a Calcium Chloride Test) on concrete subfloor…10 max tests – ok. • Temperature inside the house is 67% [sic] (more than 65° F)…ok • Relative humidity inside the house is 32% (ranges between 30% and 90%...ok • The floor’s surface is flat, all ridges are removed and there are no indentations greater than 3/16 of an inch in a 10 ft radius…57’ needs grinding • The subfloor does not slope more than 1 inch in 6 ft…ok • The surface on the subfloor is dry and clean…contaminates prior to closing • Carpets and pads had been removed…prior to apt (sic)…ok • All potential water sources (e.g. appliances, exterior doors, toilets--) had been checked…new house, no toilets, no appliances…ok • There is not a floor drain in the room where lam will be installed…ok • There is not a sump pump in the room where lam will be installed…ok • Lam floor has been acclimated (48 to 96 hours prior to installation…will be…ok • Concrete subfloors had been cured for at least 60 days before the moisture test…at least 120 days…ok

5. Respondent’s completed checklist was reviewed and approved by Jay Sukman of Sukman’s Inc., who was the Jehns’ interior design company. 6. Mrs. Jehn was present when Respondent installed the wood laminate flooring. Shortly after the installation, she noticed the planks cupping at the edges. Mrs. Jehn noticed seams throughout the installed flooring. Respondent explained to Mrs. Jehn that the effect was due to light and the direction of the installation. Mrs. Jehn testified that she thought it was a nice floor. 7. Because she had not been advised how to clean and maintain the wood laminate flooring by Respondent, Mrs. Jehn contacted the product manufacturer and purchased the cleaning product recommended by the manufacturer. 8. There is no credible evidence that Mrs. Jehn damaged the installed wood laminate flooring by cleaning it with the manufacturer’s recommended product. The cupping conditions existed prior to her cleaning the flooring. 9. In July 2005, Jonette Wylie (“Complainant”) purchased the Jehns’ residence. 10. In July 2005, Complainant complained to Sukman’s Inc. about the cupping of the planks in the wood laminate flooring. Mr. Sukman responded to Complainant that “she was not the purchaser of the floor and the warranty would only be with the original owner.”[1] 11. By letter dated August 22, 2005, Mr. Sukman informed Respondent of Complainant’s complaint and that she had contacted the Registrar of Contractors. Although Complainant had requested the name and telephone number of the installer, Mr. Sukman had not provided that information to Complainant. 12. On January 20, 2006, Complainant contacted the Registrar of Contractors’ Building Confidence Program for assistance with her dispute. 13. On February 7, 2006, Inspector Galan of the Registrar of Contractors performed a jobsite inspection to view Respondent’s workmanship at Complainant’s residence. 14. As a result of his February 7, 2006 inspection, Inspector Galan opined that Respondent’s installation of the wood laminate flooring did not meet minimum workmanship standards. Inspector Galan reported the following: “Laminate floors buckling – kitchen – living room – closets & bedrooms. The parties were notified of Inspector Galan’s findings. 15. Complainant subsequently filed a written complaint with the Registrar of Contractors alleging statutory and regulatory violations by Respondent. 16. In response to the filed complaint, Inspector Galan performed another jobsite inspection. That inspection resulted in the issuance of a written Corrective Work Order directing Respondent to timely repair the curling, cupping and buckling in Complainant’s flooring. 17. The appearance of the wood laminate flooring was driving Complainant “crazy.” So she had the wood laminate flooring removed in all rooms except two bedrooms, and replaced the product with ceramic tile. Complainant also had the wood laminate flooring removed from a closet, but left it with the concrete slab exposed. 18. By letter dated May 11, 2006, Respondent contacted Complainant to arrange for access to her home so that he could conduct moisture testing to identify the cause of the swelling of the flooring product. 19. On May 30, 2006, Respondent commenced moisture testing of Complainant’s master bedroom, guest bedroom and closet. On June 2, 2006, Respondent retrieved the samples from Complainant’s residence. 20. As a result of his testing, Respondent issued a Report dated June 2, 2006. Respondent’s report contains his following conclusion and recommendation:

Moisture from the earth is passing through the slab system and up to the surface as water vapor attacking the finished flooring. The source is likely long term excessive landscape irrigation at the front garden that has saturated the soil at least one foot below the slab surface. The irrigation system should be inspected.

21. By letter dated June 12, 2006, Respondent gave Complainant his opinions as to the causes of the excessive moisture in her concrete slab, which he opined was the source of the failure of the wood laminate flooring. Respondent concluded by stating that “[i]n an attempt to comply with the ROC’s work order to ‘correct by appropriate methods,’ I am willing to remove and re-install the floating laminate floor after all locally caused moisture issues are properly dealt with as I outlined above.” 22. Respondent wrongfully left it for Complainant to prove or disprove his theory for the failure of the wood laminate flooring, rather than doing it himself as required by the Corrective Work Order. Respondent is not a landscaping contractor. He failed to present credible evidence that Complainant’s landscaping was the cause of failure of the wood laminate flooring. The failure of the flooring was first noted by Mrs. Jehn after the installation and prior to any landscaping of the residence. 23. By letter dated June 12, 2006, Respondent informed Inspector Galgan that the problem with Complainant’s wood laminate flooring is excessive moisture. He opined that “the source of the moisture is a heavily and excessively irrigated garden at the front of the home.” Respondent further stated that “this problem was locally caused and is not workmanship related.” 24. Respondent has not complied with the Corrective Work Order as Respondent had not repaired the remaining wood laminate flooring in Complainant’s residence. 25. It is determined that the wood laminate flooring installed by Respondent began to fail after being installed. There is no credible evidence that the failure of the flooring worsened by the introduction of landscaping by the Jehns or Complainant. 26. There is no credible evidence that either the Jehns or Complainant abused the wood laminate flooring. 27. Respondent failed to comply with the Corrective Work Order “to correct by appropriate means” the cupping, curling and buckling” of the wood laminate flooring in Complainant’s residence. Although Respondent tested the moisture in Complainant’s concrete slab, he did not perform remedial repairs to the flooring. Rather, Respondent required Complainant to hire a professional to test his thesis that excessive moisture was being introduced to the concrete slab by landscape irrigation as a condition precedent to his performing the required remedial repairs. 28. Respondent’s deficient workmanship and failure to comply with the Registrar of Contractor’s Corrective Work Order are wrongful acts which have substantially injured Complainant. 29. A review of the official records of the Registrar of Contractors reveals that Respondent has no other complaints against his contracting license and no prior disciplinary action.

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar of Contractors. 4. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(23), as cited in the Citation and Complaint issued by the Registrar of Contractors. 5. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar of Contractors.

RECOMMENDED ORDER

Respondent’s Class C-08 contracting license shall be suspended on the effective date of the Order entered in this matter until the Registrar of Contractors received written proof that Respondent has removed and replaced the wood laminate flooring in Complainant’s two bedrooms and replace the wood laminate flooring in the one closet where it has been removed, as required by the Registrar of Contractors’ Corrective Work Order. If Respondent accomplishes the above-described remedial work before the effective date of the entered Order in this matter, and provides the Registrar of Contractors with written proof of such compliance, then the above-provided license suspension shall not take place, and Case No. 06- 1900 shall be closed. It is further recommended, in addition to the above-provided penalty, if any, that Respondent pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D).[2] The failure by Respondent to pay the entire amount of the civil penalty on or before 30 days following the effective date of the entered Order in this matter shall result in the automatic revocation of Respondent’s contracting license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification.

Done this day, January 22, 2007

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] See Exhibit 19. [2] The amount of the civil penalty is calculated at $100.00 for each bedroom and $50.00 for the closet with the now exposed concrete slab.

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