ALJDEC decisions subject to certification as final

2010A-308471836-ROC · Registrar of Contractors · 2011-03-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 24, 2011 APPEARANCES: Tylran Real Estate, L.L.C. was represented by Dr. Randy Weinshel, D.D.S. Denco Dental Corporation, Inc., doing business as Denco, was represented by its attorney, Bill Knoche, 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. Denco Dental Construction, Inc., doing business as Denco (“Respondent”), is the holder of License No. 122935, a Class B-1 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Tylran Real Estate, L.L.C. (“Complainant”) is the owner of a commercial property located at 3220 South Gilbert Road, Suite 1, Chandler, Arizona. Complainant’s principals are Drs. Weinshel and Carter, both of whom are pediatric dentists. 3. Complainant leased the subject premises to Kids First Pediatric Dentistry (“KFPD”), which is the dental practice for Drs. Weinshel and Carter. 4. Respondent was hired to perform tenant improvements to the subject premises for a new dental practice. 5. On March 25, 2010, Complainant filed a written Complaint with the Registrar alleging workmanship deficiencies in the flooring installation by Respondent while performing the tenant improvements. The Registrar designated Complainant’s Complaint as Case No. 2010- [number redacted]. 6. After receiving Complainant’s Complaint, the case was assigned to Inspector Dennis Cook of the Registrar. 7. After conducting an investigation, Inspector Cook advised the parties of his following determination: “The flooring installation was properly performed and there was insufficient evidence to show that the substrate did not meet the moisture recommendations of the flooring manufacturers at the time of installation.” 8. Because Complainant requested a Citation be issued against Respondent’s contracting license, the Registrar issued a Citation and Complaint in Case No. 2010-[number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (2) and (3), namely A.A.C. R4-9-108. 9. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. The Moisture Issue 10. The builder of Complainant’s office building did not apply a sub-pad vapor retarder. The evidence of record demonstrated that the application of a sub-pad vapor retarder would have eliminated any excessive moisture vapor issues. 11. The Burke Flooring Installation Instruct for the Endura Rubber Floor Tile (“Burke”) specified by Complainants recommended a Calcium Chloride moisture reading of 3 pounds per 1,000 square feet for installation. 12. Respondent performed several Calcium Chloride tests prior to the flooring installation. The first reading was 5.86 pounds per 1,000 square feet. As the interior of the office became acclimated, the moisture readings declined. When Respondent obtained a reading of 3.26 pounds per square feet with declining moisture, the decision was made to install the flooring. 13. The use of a moisture sealant was not specified by Complainant. Respondent inquired of Dr. Carter if Complainant wanted to have a sealant applied. Dr. Carter instructed Respondent not to apply a sealant. 14. Subsequent to the installation of the flooring, the flooring was damaged due to moisture. Complainant removed the damaged flooring and installed other flooring. 15. After the installation of the original flooring, Respondent’s subcontractor obtained a moisture reading of approximately 17 pounds per 1,000 square feet at Complainant’s office. 16. The evidence of record demonstrated that there is excessive moisture vapor emanating from Complainant’s office concrete slab. Besides the lack of a sub-pad vapor retarder, grading and drainage of the subject property retains water rather than allowing it to travel away from the office building, resulting in excessive moisture vapor. 17. Curt Peterson is a geotechnical civil engineer who has an engineering firm located in an adjacent building to Complainant’s office. Mr. Peterson testified that his office has excessive moisture issues caused by soil moisture. 18. David Kaman is a mechanical engineer. Mr. Kaman testified that it was appropriate for Respondent to have installed the flooring after obtaining a Calcium Chloride test reading of 3.26 pounds per 1,000 square feet because the moisture readings had been rapidly declining. 19. Respondent is determined to have properly installed the original flooring as specified by Complainant. 20. Respondent is not responsible for the moisture vapor issues affecting Complainant’s office. Allegation that Respondent Failed to Comply with Manufacturers’ Specifications 21. Burke states that the product should not be installed if the Calcium Chloride test measures “above 3 pounds per 1,000 square feet.” 22. Respondent’s expert witnesses established that Respondent did not violate that instruction by commencing installation after obtaining a reading of 3.26 pounds per 1,000 square feet with declining moisture readings. 23. The Forbo Installation Manual for its product installed by Respondent required “[c]oncrete subfloors on or-below grade shall have an acceptable vapor retarder underneath.” Respondent was directed by Dr. Carter to install the flooring without applying a sealant. 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 by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainant failed to sustain its burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (2) and (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. On the contrary, the evidence of record established that Respondent installed the flooring in a workmanlike manner and as specified by Complainant. RECOMMENDED ORDER The Citation and Complaint in Case No. 2010-[number redacted] shall be dismissed on the effective date of the Order entered in this matter. 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 16, 2011.

/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