ALJDEC decisions subject to certification as final

07F-M2222-ROC · Registrar of Contractors · 2008-03-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 5, 2008 APPEARANCES: Complainant appeared on her own behalf and Respondent appeared through its member and qualifying party, Davorin Javor (“Javor”).

ADMINISTRATIVE LAW JUDGE: Mark A. Silver ________________________________________________________________ Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Complainant retained Respondent to install new hardwood flooring throughout her home. Complainant alleges certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Complainant testified that prior to entering into the contract with Respondent, her home had tile, carpet and laminate installed for the flooring. Evidence of record showed that the home is approximately twenty (20) years old. b. Respondent installed the new wood flooring on or about May or June of 2006. c. Complainant testified that, based on her research into wood flooring, she wanted a floating wood floor. According to Complainant, Javor advised her that she did not need a floating wood floor and a glued- down floor would be fine. d. Complainant was concerned about having an underlayment installation and sealing the subfloor. Complainant testified that Javor advised her she did not need either of these procedures and that, in fact, the adhesive he would use on the floor glue-down procedure would act as a moisture barrier. e. According to Complainant, Respondent did a wonderful job in accomplishing the project. She indicated that Respondent was diligent in appearing at the jobsite and worked conscientiously at completing the project. In fact, at the conclusion of the project, she felt the new wood flooring looked great. f. Complainant testified that within six (6) months of completion of the new flooring installation, she began to observe cupping (peaking) in the wood floor. The cupping is extensive and found throughout the first floor. There is no problem on the stairway or upstairs area of the home. g. The front door area was so bad, that Complainant was unable to open and close the front door, due to the height that the wood panels had raised. h. Evidence of record showed that a wet area in the subfloor was discovered by Respondent when the old flooring was ripped out, before the new wood floor was installed. According to Javor, he advised Complainant that he tested this area with a moisture meter and it was too wet to install a wood floor. Therefore, they would have to wait until the area dried-out before the new wood floor could go in. Thus, Respondent allowed the bare concrete to dry-out for five (5) or six (6) days, before installing the wood flooring. i. According to Javor, when Respondent returned to the home, after the old flooring had been ripped out and the area allowed to dry, Respondent took moisture readings all over the floor, to assure that there was no excessive moisture in the concrete. Javor testified that the moisture meter used by Respondent was the generally accepted method for testing for moisture in concrete. At the time of this testing, Respondent did not find any areas of excessive moisture. Therefore, the floor installation proceeded. j. When Respondent received information from Complainant, regarding the failures in the floor installation, Respondent returned to her home and removed the wood planks by the front door, in order to see what was going on under the floor and to allow Complainant to open and close the door. According to Javor, he found that the subfloor was wet. k. Javor opines that water is coming into the home from somewhere and damaging the wood floor installation. He has no proof, but he suspects a plumbing leak, irrigation problem, rain water, pool leak, and/or negative drainage around the home. l. Notwithstanding Javor’s speculation about the water, Complainant presented credible evidence that her home has not experienced any excessive water usage since she moved into the home, there has not been any flooding of her home, and nothing has changed around the home, since the time that Respondent’s initial moisture check of the floor and the completion of the wood floor installation. m. Based on his opinion of the situation, Javor refused to perform any corrective work. Thus, Complainant filed the instant Complaint with the Registrar of Contractors. After receiving the Complaint, the matter was assigned to one of the Registrar’s inspectors. The inspector convened a jobsite inspection, in order to investigate Complainant’s Complaint. n. The inspector appeared at the instant hearing and presented testimony regarding his findings. The inspector testified that he observed moderate to sever cupping throughout the home and he believed the condition was probably due to moisture coming up from the subfloor. o. After concluding his inspection, the inspector issued a Corrective Work Order (“CWO”), directing Respondent to correct the problem with the flooring. Respondent failed to perform any corrective work and thus, Complainant requested the instant hearing. p. The inspector testified regarding a longstanding policy of the Registrar of Contractors, which basically indicates that any contractor who performs his work over an existing surface (such as the concrete slab in question) effectively accepts said surface, as being adequate to support a workmanlike result.

3. When Respondent initially discovered the wet area in the kitchen, he was on notice that there may be some type of moisture problem in the concrete sub floor. Notwithstanding his diligent efforts to use a moisture meter test on the entire concrete slab, under all of the facts and circumstances presented herein, it is determined and held that Respondent should either have installed a floating wood floor system or installed an adequate moisture barrier and floor sealant prior to installation of the new wood flooring.

4. There was no adequate proof of any water leak or a change in the drainage at Complainant’s home that occurred subsequent to installation of the new wood floor. Respondent accepted the project to install a natural wood floor. The cupping described herein is found to be unacceptable, creating not only a breach of the implied warranty of fitness for aesthetic purposes but also an unworkmanlike result. It is determined and held that Respondent, by virtue of agreeing to install its wood floor on the concrete slab, effectively accepted the concrete surfaces as being adequate to support a workmanlike result and, as such, is estopped to assert that it has no responsibility for the cupping of the wood floor, due to the moisture in the slab.

5. The failure of the wood floor is not only found to be unacceptable and substandard workmanship, but also to represent a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

6. Respondent’s failure to comply with the CWO constitutes a violation of the applicable charged section of the State’s Contracting laws, regarding the need to comply with an Agency directive. This non- compliance with the Agency directive also subjects Respondent to the imposition of a civil penalty.

7. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. There is a principle in construction and one generally recognized and applied by the Registrar of Contractors under appropriate circumstances, that a contractor performing work over a surface constructed and/or prepared by another contractor, accepts the surface at the time of the subsequent application, based on the opportunity to inspect for any visible flaws or defects before performing such subsequent work.

2. Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-08R license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work on the cupping problem in the wood floor installation in Complainant’s home. It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $125.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154D. The failure by Respondent 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 Respondent’s contractor’s 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. §32-1101A(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 in this matter will be forty (40) days from the date of that certification.

Done this day, March 11, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

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

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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