ALJDEC decisions subject to certification as final

2011A-1782-ROC · Registrar of Contractors · 2011-10-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 28, 2011

APPEARANCES: Complainant William Clarke appeared on behalf of Complainants; Respondent was represented by corporate President and Qualifying Party Steve Van Engelhoven.

WITNESSES: Mark Alyea, ROC Inspector William Clarke Joe Haven, Installer for Respondent Steve Van Engelhoven

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent alleging poor workmanship and failure to comply with a Corrective Work Order regarding installation of hard wood flooring at Complainants’ home. Respondent admits that corrective work is needed. This tribunal entered the complaint file received from the Registrar of Contractors into the record, including an August 30, 2011 letter from Complainants to the Registrar of Contractors, with attached unmarked exhibits, that sets forth their case.[1] The parties presented evidence and testimony from the witnesses above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent must install a moisture barrier under the flooring or have its license suspended. FINDINGS OF FACT 1. Respondent is the holder of license C-8.121134-R, a specialty residential contracting license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to install and repair flooring in residential structures. Steve Van Engelhoven is the Qualifying Party. 2. After water damage to the floor in Complainants’ guest house, Respondent installed new hardwood flooring throughout the guest house. Shortly after the installation, a “bubble” appeared in one area of the flooring, leading Complainants to suspect water penetration into the floor. Respondent installed the flooring by gluing it onto the concrete slab subfloor using a special adhesive. No vapor barrier or separate moisture barrier was installed. The installer, Joe Haven, testified that the adhesive provides some benefit as a water barrier. 3. Respondent does not dispute the floor damage and the need for repair of the area around the damage. Rather, the dispute pertains to the scope of correction needed. Complainants insist that the entire floor be removed and replaced with a moisture barrier underneath the wood. Respondent denies that replacement of the entire floor is necessary. 4. ROC Inspector Mark Alyea inspected the floor in April 2011. He issued a Corrective Work Order (“CWO”) requiring Respondent to “correct the wood flooring that has buckled and or failed in the living room of the guest house of the complainant.” He inspected the floor again on September 27, 2011, and found that the floor appeared to be darkening, signifying high moisture in the area. He also testified that if moisture is coming through the slab, a moisture barrier is needed. 5. Complainants submitted an Engineering Report from Getty Engineering Services, Inc., authored by Paul M. Getty, P.E., a registered civil engineer, who inspected the site and performed tests. Getty states in his report that his purpose was “to render an opinion as to the origin and cause of wood floor damages at the Clarke residence guest house.”[2] Getty notes that Complainants’ home is located in an irrigation district and found that “the wood floor is absorbing moisture from, or through, the concrete.”[3] His testing concluded that the “wood floor material exhibited universally high moisture content.”[4] He found that the “damaged condition of the wood flooring is the result of moisture absorption into the material and subsequent expansion.”[5] Finally, he concluded that the “installation or preparation used was not proper for the site conditions”[6] and that the deficient installation was the cause of the “floor buckling.”[7] The closing comments to the report state that wood flooring industry standards require more accurate moisture testing prior to a glue-down than the testing done by Respondent, that the adhesive used by Respondent was not adequate to control the moisture, and that a different type of installation, using a vapor barrier, was called for by the circumstances at the installation site.[8] 6. Steve Van Engelhoven testified for Respondent. He stated that the installation was proper and appropriate and that in his opinion it was not necessary to replace the entire floor, only the area of damage. 7. This tribunal finds the Getty engineering report to be more persuasive and supported by the evidence. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[9] Further, the standard of proof at hearing is by preponderance of the evidence.[10] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[11] Complainants have met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(23), and (A)(3) by way of ROC Rule R4-9-108. Subsection (A)(23) prohibits failure to comply with an ROC Corrective Work Order. Subsection (A)(3) prohibits violating any ROC rule, namely R4-9-108 which prohibits poor workmanship. The evidence shows violation of workmanship standards with respect to the installation of the flooring without a moisture barrier. The evidence also shows failure to comply with the CWO. 3. A review of Respondent’s license status shows that the license is current and has been in good standing with no disciplinary actions since 1997. This is a good license history. 5. The appropriate sanction in this matter is to allow Respondent to perform the corrective actions as identified by the Getty engineering report. If Respondent does not make the repairs in a timely manner, the license should be suspended. RECOMMENDED ORDER IT IS RECOMMENDED that license C-8.121134-R, held by Contemporary Flooring, Inc., be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that the entire guest house flooring has been corrected as recommended by Getty report and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place and case 2011-1782 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, October 18, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Respondent was sent and received a copy of the letter with attachments. [2] Getty Engineering Report dated April 29, 2011, at 2 (attached to Complainants August 30, 2011, letter). [3] Id. at 4. [4] Id. at 6. [5] Id. [6] Id. at 7. [7] Id. at 10. [8] Id. at 11. [9] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [10] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [11] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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