ALJDEC decisions subject to certification as final

2010A-18079746-ROC · Registrar of Contractors · 2010-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 1, 2010 APPEARANCES: Mike Emadi appeared personally. Alro Hardwood Floors, Inc. was represented by its attorney, Roger Decker, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Alro Hardwood Floors, Inc. (“Respondent”) is the holder of License No. 144076, a Class K-64 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On November 13, 2009, Mike Emadi (“Complainant”) filed a written Complaint with the Registrar alleging 13 Complaint items, which are incorporated herein by reference. 3. The Registrar initially designated Complainant’s Complaint as Case No. 10-1807, but later redesignated it as Case No. 2010-18079746. 4. The Registrar issued a Citation and Complaint charging Respondent with violating the provisions of A.R.S. § 32-1154 (A) (3), specifically A.A.C. R4-9-108, (9), (13), specifically A.R.S. § 32-1158.01, and (23). 5. The Registrar forwarded Case No. 2010-18079746 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. Complainant served as an owner/builder of a home construction project located at 5216 E. Doubletree Ranch Road, Paradise Valley, Arizona. Complainant took over the construction project after terminating a general contractor who worked on the project for two months. 7. As an owner/builder, Complainant had the responsibilities and duties of a general contractor for the project. 8. Complainant contracted with Respondent for the installation of custom wood flooring in the residence. 9. By letter dated November 16, 2009, the Registrar’s originally assigned inspector, Jeff Fleetham, informed the parties that a jobsite inspection would be performed at the subject property on December 2, 2009, to view the Complaint items. 10. By letter dated December 3, 2009, Inspector Fleetham informed the parties that a re-inspection would take place on December 10, 2009. 11. During the December 10, 2009 jobsite inspection, Complainant felt that Inspector Fleetham was being unfair to him. Complainant subsequently requested that the Registrar reassign his Complaint to another inspector. 12. Complainant’s Complaint was subsequently assigned to Inspector Phil Coscia, who scheduled another jobsite inspection on December 17, 2009. 13. At the start of the December 17, 2009 jobsite inspection, Complainant insisted that Respondent’s wood flooring expert leave the residence. The expert complied with Complainant’s request. 14. As a result of the December 17, 2009 jobsite inspection, Inspector Coscia issued a Corrective Work Order dated December 30, 2009, which is incorporated herein by reference. 15. The Corrective Work Order addressed each of Complainant’s Complaint items. Inspector Coscia opined that Respondent needed to perform remedial repairs to Complaint items numbered 2, 4, 6, 7, 9, 10, 11, and 12. The Registrar’s written directive did not require Respondent to perform remedial work to Complaint items numbered 1, 3, 5, and 8. Inspector Coscia determined that Complaint item number 13, which dealt with a monetary dispute between the parties, was outside the jurisdiction of the Registrar. 16. At the hearing, Inspector Coscia credibly testified that the remaining work to the referenced wooden floors was not a major issue. 17. Respondent performed remedial repairs, but could not apply the finish coat on the floors due to Complainant’s scheduling of other trades who could damage the finished wood floor. For example, Complainant had plasterers on the jobsite working with scaffolding placed on the wood flooring installed by Respondent. 18. There is credible evidence that Complainant failed to properly schedule trades during the project, especially during the time given to Respondent to comply with the Registrar’s Corrective Work Order. 19. Complainant’s cabinet designer and manufacturer, Allen Ahearn, testified that his company had difficulties with installation of cabinets on the project due to plumbing and electrical subcontractors working in the way of where the cabinets needed to be installed. Mr. Ahearn’s company tried to install cabinets six times due to other trades being in the way. Mr. Ahearn testified that his company completed 95% of the cabinet installation until a monetary dispute with Complainant stopped the cabinet installation. 20. Respondent’s qualifying party and president, Alfredo Salas, testified that wood floors are usually installed at the end of a project due to moisture affecting the wood product. Mr. Salas stated that a general contractor is responsible for maintaining air conditioning in a residence to acclimate the wood product. 21. Respondent purchased the wood product for its original scope of work and stored it with Complainant’s materials and supplies in the residence’s garage. 22. Due to delays in construction attributable to Complainant, there was a delay in the construction scheduling. As a result, Respondent’s scope of work was also delayed. 23. After contracting with Respondent, who had purchased the wood product, Complainant elected to change Respondent’s scope of work by deleting wood flooring in the breakfast nook and the foyer. Complainant believes that he is entitled to a credit for labor and material from Respondent for the deleted scope of work. Respondent’s contention that it is entitled to receive payment for the materials purchased is reasonable. Respondent presented credible evidence that it could no longer return the materials for the deleted scope of work due to the passage of time. Respondent did offer to credit Complainant for Respondent’s labor for those deleted areas of work, which is found to be reasonable. 24. Complainant believes that he is entitled to repayment for wood waste product. There is credible evidence that product waste commonly occurs in the installation of custom wood floors such as Complainant’s floors. The parties agreed upon pricing based on square footage. Due to the numerous cuts necessary to achieve the custom wood flooring, Respondent’s charges for the wood flooring, including product waste, is appropriate under the circumstances. 25. Respondent substantially complied with the Registrar’s Corrective Work Order. Respondent was reasonable in requesting that all other trades be completed before the application of the final finish to the wood floor. To do otherwise would potentially expose the finished wood flooring to damage from other trades still working in the house, which would result in the wood flooring needing to be re-finished once again. 26. Complainant’s request that Respondent apply the final finish to the wood floorings and then covering them over while other trades continued to work in the residence is not reasonable. 27. Respondent’s contract with Complainant does not conform to the statutory requirements of A.R.S. § 32-1158.01. CONCLUSIONS OF LAW 1. The Registrar 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. Complainant is an owner/builder pursuant to A.R.S. § 32-1121(A) (5). As such, Complainant has the duties and responsibilities similar to a licensed general contractor. 4. The evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, (9), and (23), as charged in the Citation and Complaint issued by the Registrar. Complainant failed to sustain his burden of proof as to those allegations. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1158.01, as charged in the Citation and Complaint issued by the Registrar. The evidence of record supports this conclusion. RECOMMENDED ORDER Respondent’s License No. 144076 shall be suspended on the effective date of the Order entered in Case No. 2010-18079746 until Respondent submits written proof to the Registrar, and the Registrar approves such proof, that Respondent has become fully compliant with the provisions of A.R.S. § 32-1158.01. If Respondent submits written proof to the Registrar, and the Registrar accepts such proof, that Respondent has become fully compliant with the provisions of A.R.S. § 32-1158.01 on or before the effective date of the Order entered in Case No. 2010-18079746, then the above-provided license suspension shall not take place and the Citation and Complaint in Case No. 2010-18079746 shall be closed. 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, September 21, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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