ALJDEC decisions subject to certification as final

2011A-2711-ROC · Registrar of Contractors · 2011-09-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 28, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class K-8 (No. 141099) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed a new engineered wood floor in the Complainant’s residence. 3. The Complainant was dissatisfied with the appearance of the new engineered wood floor and complained to the Respondent. 4. When the Respondent failed to correct the appearance of the new engineered wood floor to her satisfaction, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 5. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on May 25, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s residence. 6. The Corrective Work Order provides, in pertinent part, as follows: The contractor is to correct the following by the appropriate means

Complaint 1) Hardwood floors – wood is defective – needs to be replaced: Checking or cracking on the surface of the engineered wood floor.

7. Credible testimony and evidence established that the Respondent failed to fully comply with the terms of the Corrective Work Order. 8. Undisputed credible testimony and evidence established that the Complainant’s new engineered floor displays excessive checking. 9. The Respondent asserts that the excessive checking was caused by the Complainant’s housekeeper utilizing a non-approved cleaning material for the new engineered floor. 10. Credible testimony and evidence established that the Complainant’s housekeeper utilized a non approved product for the first cleaning of the Complainant’s floor and utilized the approved products for all subsequent cleanings. 11. Credible testimony and evidence presented at hearing established that the boards for the new engineered floor displayed unacceptable checking before the boards were installed. 12. Credible testimony and evidence established that the boards for the new engineered floor in the Complainant’s residence were installed by the Respondent despite the fact that the boards for the new floor displayed unacceptable checking. 13. Credible testimony and evidence established that the new engineered wood floor in the Complainant’s residence displayed unacceptable checking before the Complainant’s housekeeper cleaned the new floor with a non- approved cleaning product. 14. Credible testimony and evidence established that the new engineered wood floor in the Complainant’s residence displays unacceptable checking and fails to comply with applicable workmanship and industry standards. 15. Credible testimony and evidence established that the Respondent is responsible for the products he utilizes for wood floor installations and that the Respondent is fully responsible for the correction of the Complainant’s engineered wood floor. 16. Although the Complainant’s concerns, frustrations, and aggravation regarding the problems she has experienced with the installation of the new engineered wood floor in her home are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, the Respondent must be given a reasonable opportunity to complete necessary remedial work. 17. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 4. Credible testimony and evidence supported findings that establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (23) (failure to take appropriate corrective action), and A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (failure to perform work in a professional and workmanlike manner).

RECOMMENDed order In view of the foregoing, it is recommended, commencing on the effective date of the Registrar’s Order, that the Respondent’s License be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has fully complied with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by the 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 the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the 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 this 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 the certification. Done this day, September 28, 2011.

/s/ M. Douglas 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