ALJDEC decisions subject to certification as final

08F-2489-ROC · Registrar of Contractors · 2009-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 22, 2009

APPEARANCES: Rose and Robert Prescott, Complainants; Michael Perkins, Respondent's President; Shane Adair, Respondent's employee; Steve Jacobs, Complainants' witness; Ted Gerold, Registrar of Contractors Inspector

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

Based upon the entire record in the matter, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Complainants hired the Respondent to install a hard-wood floor in their game room and master bedroom. The work was completed on or about February 13, 2007. Later, the Complainants noticed that the wood was beveling and curling in the game room. The Respondent denied responsibility for the problem so the Complainants filed a complaint with the Registrar of Contractors on February 19, 2008. 2. A Registrar of Contractors Inspector, Ted Gerold, conducted a job site inspection on March 11, 2008. He found that the floor was cupping, curling or splitting in the game room. He looked for, but could not find, a potential outside source for the failure. Therefore, he issued a Corrective Work Order on March 18, 2008, directing the Respondent to replace the floor. 3. On April 21, 2009, Inspector Gerold conducted a pre-hearing inspection. Since the Complainants had amended their complaint to include the master bedroom floor, he inspected it at that time. He found that no corrective work had taken place on the game room floor, and the master bedroom floor was experiencing the same problem. 4. The Complainants hired Steve Jacobs, a Certified Floor Covering Inspector for Priority One Inspections. He performed an extensive inspection of the floors at issue. He found cupping throughout the floors, which dissipated at the edges. This indicated that there was no moisture coming from outside the room to cause the problem. He also found that the damage was not concentrated in a large area, which would indicate a pipe leak or puddle. On the contrary, the pattern of damage indicated that moisture was most likely wicking up from the concrete through nails used to anchor the subfloor. This, he stated, could have been avoided by following manufacturer's instructions and testing for moisture prior to laying the floor. 5. The Respondent admitted that no moisture tests were done, but it argued that so much could happen over the course of a year or two that there was no way to be sure that the damage was not caused by the Complainants. The Respondent argued that the floor was properly laid, despite the lack of moisture testing. It argued that eventually water would work its way up the nails and ruin the floor no matter what the Respondent did during installation. 6. The Complainants argued that they paid a lot of money for a hard wood floor and it does not look like it is supposed to. 7. According to the records of the Registrar of Contractors, the license in this matter has two open complaints against it. 8. Any allegation contained in the complaint not specifically addressed in the above Findings of Facts is found to either lack sufficient evidence of record to support a finding of a violation or meets minimum workmanship standards. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. At the time of the hearing, the Complainants amended their complaint to include Robert Prescott as a party complainant. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(3), (7), (10) and (23) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar.” The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. The Workmanship Standards for Licensed Contractors, February 2009 Edition, p. 16, provides that there are no accepted tolerances for hardwood floor curls, pops or buckles. 4. The Arizona Revised Statutes at § 32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” 5. The Arizona Revised Statutes at § 32-1154(A)(10) provides grounds for suspension or revocation of a contractor’s license for “aiding or abetting a licensed or unlicensed person to evade this chapter, knowingly or recklessly combining or conspiring with a licensed or unlicensed person, allowing one’s license to be used by a licensed or unlicensed person or acting as agent, partner, associate or otherwise of a licensed or unlicensed person with intent to evade this chapter.” 6. The Arizona Revised Statutes at § 32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 7. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. 8. In this case, the Complainants have established that the game room and master bedroom floors have failed within two years of installation. The weight of the evidence established that the cause of the failure was the installation and that the Complainants suffered substantial injury as a result. Therefore, the Complainants have established that the Respondent violated A.R.S. § 32-1154(A)(7) and (3). 9. The Complainants have also established that the Respondent failed to replace the game room floor as directed in the Corrective Work Order. The Respondent has not established a legal basis for its failure to comply with the Corrective Work Order. Therefore, the Complainants have established a violation of A.R.S. § 32-1154(A)(23). 10. No other potential violations were addressed at hearing. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends to the Registrar of Contractors that, commencing on the effective date of the Order in this matter, Respondent’s Class B- license shall be actively suspended until the Registrar receives and accepts sufficient proof that Respondent has replaced the Complainants’ game room and master bedroom floors.

It is further recommended in addition to the foregoing license suspension, if any, that Respondent’s Class B- license shall be placed on disciplinary probation for a period of 120 days commencing on the effective date of the Order entered in this matter or the date on which notice of Respondent’s proper compliance with the terms of the Order is filed with the Registrar of Contractors, whichever is later.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification.

Done this day, May 4, 2009 OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

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