ALJDEC decisions subject to certification as final

07F-2320-ROC · Registrar of Contractors · 2008-03-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 5, 2008 APPEARANCES: Complainant Jonathan Posner appeared on his own behalf. C.G. Rominger appeared on behalf of Respondent John Vincent Enterprises, Inc., doing business as Monkey Business. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent John Vincent Enterprises, Inc., doing business as Monkey Business (“Monkey Business”), is subject to discipline for acts or omissions in violation of A.R.S. § 32- 1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Monkey Business is the holder of a Class KB-02 license (No. 216799) issued by the Registrar of Contractors (“ROC”).[1] C. G. Rominger is Monkey Business’ Vice-president. On March 20, 2006, Complainant Jonathan Posner and his wife, Tricia Posner, contracted with CarpeTrends for CarpeTrends to install flooring throughout the Posners’ home. Mr. Rominger is an owner of CarpeTrends. The majority of the flooring was wood, and the remainder was tile. On April 8, 2006, Monkey Business performed the flooring installation at the Posners’ home, with the exception of the T-molds. Upon completion of the installation, the Posners discovered hollow spots in various areas of the floor. On April 29, 2006, the T-molds were installed. The following day, the T-mold on the doorway between the kitchen and entry began to “pop up”. In May 2006, Monkey Business returned to repair the T-mold, using nails and glue. Mrs. Posner credibly testified that the T-mold lay flat after the repair and that the door functioned properly. However, the hollow spots remained. Mrs. Posner testified that the area most affected was the entryway, and that there was actually a dip in the floor. In August 2006, Monkey Business returned to perform corrective work to the hollow spots. Mr. Rominger admittedly utilized the wrong adhesive during such work. As such, the floor in the entryway buckled, including the area near the T-mold, causing the door to rub on the T-mold and not function properly. Monkey Business hired Let Us Floor You to replace the buckled flooring. Let Us Floor You performed that work on January 18, 2007. The Posners were very satisfied with Let Us Floor You’s work and professionalism. On January 30, 2007, the T-mold was replaced. On January 31, 2007, the T-mold “popped up” again. The Posners contacted Let Us Floor You on several occasions concerning the T-mold, however, Let Us Floor You did not respond to their concerns as it was awaiting direction from Monkey Business. The Posners also contacted Monkey Business directly, however, Monkey Business did not respond satisfactorily to the Posners’ concerns. Consequently, on April 11, 2007, Mr. Posner filed a complaint against Monkey Business with the ROC. In his complaint, Mr. Posner alleged the following: In short, there has been damage to our house, incorrect ordering of products, poor installation, incomplete orders, many delays and a general feeling of frustration on our part. More than 12 months have passed since we signed the flooring contract and the wood flooring still is not satisfactorily installed. Below we itemize a series of complaints from our tile and wood flooring contract with Connie Gene Rominger of CarpeTrends. As of today, we only have one outstanding complaint; however, because of our dissatisfaction with CarpeTrends, we are including the detailed history below. CarpeTrends is the name of the business where we ordered our floors and who we have the contract with. Monkey Business is the only contractors license we found for Connie Gene Rominger. The only outstanding issue is an incorrectly installed T-mold between the front entry and kitchen. The T-mold sticks up on one side preventing the pocket door from closing. The pocket door is an original part of the house, built in 1964. After CarpeTrends’ subcontractor repeatedly tried to fix the T-mold with no success, we were told to contact the Arizona Registrar of Contractors to request a courtesy inspection. The Registrar of Contractors instructed us to file a formal complaint in order to get an inspection.

List of Outstanding Complaints 1. Incorrect installation of T-mold between front entry and kitchen. T- mold sticks up on right hand side preventing pocket door from closing.

List of Corrected Complaints 1. T-molds missing when floors first installed 2. Approximately 10 hollow spots under wood floor that dip when you walk on them 3. Hollow spots filled by CarpeTrends initially with water-based adhesive, causing floors to pucker upward 4. Holes drilled in hollow spots by CarpeTrends were drilled in the center of the wood planks, rather than between wood planks so that they are highly noticeable 5. Washer and dryer did not fit in space where previously had been because of how tile was installed.

ROC Inspector Randy Cason investigated Mr. Posner’s complaint. On May 2, 2007, Inspector Cason conducted a jobsite inspection. Present for the inspection were the Posners and Mr. Rominger. On May 2, 2007, following the jobsite inspection, Inspector Cason issued a Corrective Work Order (“CWO”) under which the ROC gave Monkey Business 15 days to take corrective action with respect to the complaint as follows: Complaint – Incorrect installation of T-Mold between front entry and kitchen, T-mold sticks up on right hand side preventing pocket door from closing. Contractor to correct by appropriate means.

Inspector Cason testified at hearing that he conducted a pre-hearing inspection on February 29, 2008, at which Mrs. Posner and Mr. Rominger were present. Inspector Cason testified that the pocket door continues to rub on the T-mold, and that his understanding of the situation is that the pocket door was working properly after the initial installation of the wood flooring, however, after the floor failed and was removed and re-installed, the subsequent T-mold installation resulted in the door rubbing on the T- mold. Inspector Cason further testified that Mr. Rominger modified the T- mold product by whittling down part of the T-mold and staining it in an attempt to remedy the dragging of the door. By doing so, Mr. Rominger voided the warranty on the T-mold. Inspector Cason testified that notwithstanding the modification, the door continues to drag, and was dragging even more so at the pre-hearing inspection. Mrs. Posner testified at hearing that after the issuance of the CWO, Mr. Rominger used a pocket/utility knife to “chisel” down the T-mold, and then painted it. The Posners received verification from Let Us Floor You that such action voids the warranty on the T-mold. See Exhibit 10. Mr. Posner submitted into evidence several photographs depicting the condition of the T-mold after it was altered by Mr. Rominger. See Exhibits and 12. At hearing, Mr. Posner showed a video of Mr. Rominger performing work to the T-mold with a knife-like tool. Robert Underwood, a licensed flooring contractor with Edge Hardwood Flooring, conducted a demonstration illustrating the proper installation of a T-mold. Mr. Underwood also testified that there needs to be a certain amount of clearance under a doorway for air flow purposes, and that the industry standard for repair would be to address the door. Mr. Underwood testified that the door would not be rubbing if it had proper clearance. However, Mr. Underwood acknowledged that he has never been to the Posners’ home, has not seen the materials installed in the Posners’ home, and has not seen the pocket door operate. Justin Fultz, owner of Let Us Floor You, testified that he properly installed the T-mold and that it was flat against the tile side in the kitchen and that he does not remember any gaps on the wood side in the entry way. Mr. Fultz testified that he noticed that the door was dragging and suggested that the Posners shave the bottom of the door or adjust the hinges. Mr. Rominger testified at hearing that Monkey Business is willing to install a new T-mold, however, such installation will not remedy the problem, as the problem lies with the door itself, and that the industry standard for repair would be to repair the door. CONCLUSIONS OF LAW In this proceeding, Mr. Posner bears the burden to prove, by a preponderance of the evidence, that Monkey Business is subject to discipline for violations of A.R.S. § 32-1154(A)(2), (A)(3), (A)(7), (A)(15), and/or (A)(23) as charged by the ROC in its October 10, 2007 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19- 119. 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). The Administrative Law Judge concludes that Mr. Posner met his burden of proof as to three of the ROC’s five charges. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from plans or specifications or any building codes of the state or any political subdivision of the state . . .” The Administrative Law Judge concludes, based upon the evidence of record, that Monkey Business did not depart from plans or specifications or any building codes of the state or any political subdivision of the state. Therefore, the Administrative Law Judge concludes that Monkey Business did not violate A.R.S. § 32-1154(A)(2). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Monkey Business with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes, based upon the credible evidence of record, that Monkey Business failed to perform portions of its work in a professional and workmanlike manner, specifically the utilization of an improper adhesive, causing the floor to buckle and the T-mold to protrude, and the repair attempt involving the whittling of the T-mold, resulting in an unsightly repair that voided the warranty. Therefore, the Administrative Law Judge concludes that Monkey Business is in violation of A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(15), a contractor is subject to discipline for “acting in the capacity of a contractor under any license issued . . . in a name other than as set forth upon the license.” Mr. Posner failed to establish a violation of this provision. Accordingly, the Administrative Law Judge concludes that Monkey Business is not in violation of A.R.S. § 32- 1154(A)(15). Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued Monkey Business a CWO directing it to accomplish specified remedial work within a stated period of time. The credible evidence of record established that while Monkey Business attempted to comply with the CWO, compliance was not achieved. Therefore, the Administrative Law Judge concludes that Monkey Business is in violation of A.R.S. § 32-1154(A)(23). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that Monkey Business committed wrongful acts that substantially injured the Posners by failing to install the wood flooring in a professional and workmanlike manner, by failing to properly remedy the hollow spots in the entry, causing the floor to buckle, resulting in the replacement of sections of the floor and the door dragging on the T-mold, and the failure to comply with the CWO. Therefore, the Administrative Law Judge concludes that Monkey Business is in violation A.R.S. § 32-1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Monkey Business’ Class KB-02 license. Upon consideration of all of the facts and circumstances presented by this case, including Monkey Business’ suspended license status, the Administrative Law Judge concludes that the ROC should revoke Monkey Business’ Class KB-02 license. The ROC’s authority in disciplinary matters such as the one presented herein includes the ability to impose reasonable conditions that allow the disciplined contractor to reduce the scope of the disciplinary action taken against it. The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case, and preferable to imposing discipline against Monkey Business’ license without providing a condition to reduce or eliminate same. Upon consideration of all of the facts and circumstances presented by this case, the Administrative Law Judge concludes that the ROC should revoke Monkey Business’ Class KB-02 license subject to the condition that Monkey Business can avoid such revocation by paying for the Posners to hire a properly licensed contractor to correct the dragging of the pocket door on the T-mold, in an appropriate, effective, and workmanlike manner.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, Monkey Business’ Class KB-02 license (No. 216799) shall be revoked. It is further recommended that if the ROC receives written proof that Monkey Business has paid for the Posners to hire a properly licensed contractor to correct the dragging of the pocket door on the T-mold, in an appropriate, effective, and workmanlike manner, on or before the effective date of the Order entered in this matter, then the above-provided license revocation shall not take place but instead Monkey Business’ license shall be placed on disciplinary probation for a period of ninety (90) days. This alternative penalty shall commence, if at all, on the effective date of the Order entered in this matter. It is further recommended, in addition to the above-provided discipline, if any, that Monkey Business shall pay the sum of $250.00 to the ROC by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Monkey Business to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Monkey Business’ contractors’ license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Monkey Business, as defined in A.R.S. § 32-1101A(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, March 19, 2008.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of March, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] A review of the ROC’s official records revealed that Monkey Business’ contracting license was suspended on March 1, 2008, for nonrenewal. Such suspended license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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