ALJDEC decisions subject to certification as final

2011A-3880-ROC · Registrar of Contractors · 2012-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 8, 2012, at 8:00 a.m. APPEARANCES: Complainant appeared through its authorized representative, Jonathon Stuart. Respondent failed to appear. 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. Respondent is the holder of License No. C-8R.220866-R issued by the Registrar of Contractors. 2. This is a residential matter in which Respondent installed a new Bellawood Brazilian Walnut wood floor in a custom home being constructed by Complainant. 3. Complainant was dissatisfied with Respondent’s workmanship on the new wood floor and requested corrective work. Respondent declined to perform the requested corrective work based on Respondent’s assertion that the installation of the new wood floor was within applicable workmanship standards. Complainant and Respondent then agreed to have the new wood floor inspected by a certified flooring expert.[1] 4. The selected certified flooring expert then conducted an on-site inspection of the new wood floor and found that Respondent had failed to install the wood floor in accordance with the manufacturer’s specific installation procedures and issued a recommendation that Respondent correct the installation of the new wood floor.[2] 5. Respondent repeatedly agreed to perform the recommended corrections to the new wood floor but failed to perform any corrective work despite being provided with repeated opportunities to perform the agreed upon corrective action.[3] 6. Complainant had also filed a formal complaint against Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on July 27, 2011, issued a written Corrective Work Order directing Respondent to correct the workmanship deficiencies in the new wood floor. 8. The Corrective Work Order provides, in pertinent part, as follows: Contractor is to correct the following and to ensure that installation of the wood floor is installed as per MANUFACTURERS SPECIFIC INSTALLATION PROCEDURES, and also NWFA (Hardwood Installation Guidelines) 2. Several planks varying in width with a differential up to .125”: Observed several planks in the main area (living/dining room area) varying in width to the others by up to approximately ⅛. 4. No documentation providing moisture testing results of the substrate prior to installation: Contractor is to provide documentation with results of moist testing of the substrate prior to installation of product. 5. No documentation providing moisture testing results of the wood prior to installation: Contractor is to provide documentation with results of moisture testing of the wood prior to installation of product. 6. Numerous gaps throughout the installation, including steps and risers. These gaps range from .031” to a great as .250”: Note numerous gaps in between the sections of wood plank flooring in the structure with gaps in width of ⅛ to in excess of ¼. Gaping was noted throughout visible installation areas; entry (foyer), living/dining room area 7. Flatness variation violations (images attached) with these all exceed the NWFA (maximum tolerance and industry standards of 1/8 inch in six feet.”: Noted several areas in the front entry specifically in the area of the front door and by the transition from wood to the tiled area where the there was variations of flatness that exceeded ⅛ in 3 ½ feet. This was noted via the use of a 4 foot spirit level as a flat edge and noted the variations in flatness from plank to plank (an area of approximately 8.5 planks).[4]

9. Respondent departed from or disregarded the manufacturer’s installation recommendations and specifications in his installation of the new wood floor and his workmanship on the new wood floor fails to comply with applicable workmanship and industry standards.[5] 10. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on June 26, 2012. Such prior License record reflects that License No. C-8R.220866-R of Adam Chester Galor dba Old World Hardwood Floors was revoked on April 5, 2012, revoked twice on May 16, 2012, revoked on May 31, 2012, and revoked three times on June 7, 2012. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Undisputed credible testimony and evidence supported findings which establish violations by Respondent of the charged provisions of A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications), A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108 (failure to perform work in a professional and workmanlike manner), and A.R.S. § 32-1154(A)(23) (failure to take appropriate corrective action). RECOMMENDed order In view of the foregoing, it is recommended that License No. C- 8R.220866-R of Adam Chester Galor dba Old World Hardwood Floors be revoked. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by 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 Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(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, June 26, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Complaint and attachments. [2] See Exhibit C-1, Floor Covering Inspections Report, May 18, 2011, at p. 6. [3] See December 15, 2011 Hearing Record at 00 to 9:44 (Status Conference), February 10, 2012 Hearing Record at 00 to 14:04 (Status Conference), and March 30, 2012 Hearing Record at 00 to 9:17 (Status Conference).

[4] July 27, 2011 Corrective Work Order at: 2-3 (footnote added). [5] See July 27, 2011 Corrective Work Order and Exhibit C-1 (May 18, 2011 Floor Covering Inspection Report).

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