ALJDEC decisions subject to certification as final

2011A-5875-ROC · Registrar of Contractors · 2012-04-25

HEARING: March 22, 2012, at 8:00 a.m. APPEARANCES: Complainant, Charles W. Stoddard III, Esq., appeared on his own behalf. Respondent AZ Builders and Maintenance Company Inc., (“AZ Builders”) appeared through its attorney, Michael Hornisher, Esq., Law Office of Michael Hornisher. Respondent August Enterprise Inc dba The Carpet Store and More (“The Carpet Store”) appeared through its attorney, Joseph H. Watson Esq., Law Offices of Joseph H. Watson. These consolidated matters were held open until April 9, 2012, to allow the parties sufficient time to file written closing arguments. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made: FINDINGS OF FACT 1. AZ Builders is the holder of License No. B.175268-R issued by the Registrar of Contractors. 2. The Carpet Store is the holder of License No. C-8.109541-R issued by the Registrar of Contractors. 3. Complainant is the owner of a residence located at 530 W. Golf View Drive, Oro Valley, Arizona. 4. AZ Builders performed an extensive remodeling and addition construction project on Complainant’s residence during the years of 2009 and 2010. 5. On or about February 5, 2011, a water line broke and flooded Complainant’s residence with approximately 185,000 gallons of water. 6. AZ Builders was employed by Complainant to correct the damages caused by the broken water line. 7. The Carpet Store was employed by AZ Builders as a flooring subcontractor to install a new engineered bamboo floor in Complainant’s residence. 8. Shortly after the installation of the new bamboo floor, Complainant noticed that the new floor seemed to be peaking and separating. 9. Complainant took photographs of the deteriorating bamboo floor, and contacted the flooring manufacturer and complained about the problems. 10. The flooring manufacturer then retained an inspection service, identified as “The Flooring Detective,” to conduct an on-site inspection of Complainant’s bamboo floor. 11. The Flooring Detective issued a written report of its on-site inspection to the manufacturer. On September 2, 2011, the flooring manufacturer issued a letter (Exhibit R-11) stating that the problems with Complainant’s bamboo floor were not due to a manufacturer’s defect. 12. Complainant was extremely dissatisfied with the increasingly obvious failure of the new bamboo floor. When AZ Builders and The Carpet Store failed to resolve the problems with the new bamboo wood floor to his satisfaction, Complainant filed formal Complaints against both with the Registrar of Contractors. 13. Pursuant to the filing of the formal Complaints, an assigned Agency Inspector conducted an on-site inspection at Complainant’s residence and on November 10, 2011, issued identical written Corrective Work Orders directing both AZ Builders and The Carpet Store to perform designated corrective work on Complainant’s residence within 15 calendar days of the date of the Corrective Work Orders. 14. The two Corrective Work Orders provide, in pertinent part, as follows: 1) Complaint of: “bamboo floor is cupped and warped[,]”… jobsite found bamboo floor cupped and warped, contractor to correct by appropriate means. 2) Complaint of: “Mold appears to be growing because of trapped moisture below wood floor[,]”… jobsite found visible signs of mold growth in areas flooring was removed, unable to determine cause or source of moisture, no action required. 3) Complaint of: “Installation does not appear to be compliant with installation guidelines[,]”… jobsite found underlayment not per specs (not installed up wall at edges), paint not removed from sub floor prior to installation, and perimeter spacing not per specs, contractor to correct by appropriate means. 15. On December 2, 2011, the Registrar of Contractors received a November 30, 2011, letter from Complainant stating that AZ Builders and The Carpet Store had failed to contact Complainant within the 15 calendar day time period set forth in the two Corrective Work Orders and requesting an administrative hearing for the two complaints. 16. On December 15, 2011, the Registrar of Contractors issued the Citations at issue. 17. Credible testimony and evidence established that Complainant retained an alternative licensed contractor to remove the failed bamboo floor, remediate the water mold growth and water damage, and re-install a new floor in his residence on November 22, 2011, which is before the expiration of the fifteen day period set forth in the Corrective Work Orders, and before the issuance of the Citations in these matters. 18. The failed bamboo floor in Complainant’s residence has now been removed and replaced, and all necessary mold remediation in Complainant’s residence has been performed by the alternative contractor retained by Complainant. No further corrective action by AZ Builders and The Carpet Store is possible in this matter. 19. AZ Builders and The Carpet Store did not dispute that Complainant’s bamboo floor displayed excessive cupping and warping and that the bamboo floor had failed. However, AZ Builders and The Carpet Store sharply disputed the assigned Agency Inspector’s determination that the bamboo floor in Complainant’s residence had not been installed in accordance with applicable workmanship and industry guidelines. 20. The assigned Agency Inspector testified he conducted a visual on-site inspection of the failed bamboo floor prior to the issuance of the two Corrective Work Orders and visually observed that the failed bamboo floor had not been installed in accordance with applicable workmanship and industry standards. 21. The assigned Agency Inspector observed that the underlayment had not been installed in accordance with specifications, that paint on the floor had not been removed prior to the installation of the underlayment, and that the perimeter spacing of the underlayment failed to comply with applicable workmanship and industry standards. 22. The assigned Agency Inspector opined that the of AZ Builders and The Carpet Store to install the bamboo floor in a workmanlike manner may have contributed to the obvious moisture condition in the floor which caused the new bamboo floor to curl and buckle. 23. The Workmanship Standards for Licensed Contractors June 2009 (page 15) provides, in pertinent part, as follows: PD Hardwood curls, pops or buckles AT None( unless caused by moisture from broken sewer or water pipes, roof leaks, spills, etc. Hardwood floors should be installed according to manufacturer’s recommendations. CR Contractor should make necessary repairs. 24. The parties were in sharp dispute regarding the source of the moisture which led to the mold growth in Complainant’s residence. The assigned Agency Inspector stated that he observed water under the underlayment for the bamboo floor but was unable to determine the source of the water. 25. Complainant asserts that the source of the moisture was the original water flood of February 5, 2011, and that AZ Builders failed to properly remove excess moisture from Complainant’s concrete slab before causing The Carpet Store to install the failed bamboo floor in his residence. 26. AZ Builders and The Carpet Store both assert that the source of the moisture was due to external factors, such as the drainage condition of Complainant’s yard, the fact that Complainant’s residence is located adjacent to a golf course, and the amount of rain that occurred in the Oro Valley area after the failed bamboo floor was installed. 27. Complainant’s claim for monetary damages of an unknown amount, which includes the cost of the removal and replacement of the failed bamboo floor, the mold remediation, and Complainant’s claimed personal damages for himself and his family, can be resolved in a civil court of competent jurisdiction. 28. Administrative notice is taken of AZ Builders’ prior License record as reflected on the Registrar of Contractors’ public website on April 19, 2012. Such prior License record reflects that License No. B.175268-R of Arizona Builders and Maintenance Company Inc is current and in good standing. 29. Administrative notice is taken of The Carpet Store’s prior License record as reflected on the Registrar of Contractors’ public website on April 19, 2012. Such prior License record reflects that License No. C- 8.109541-R of August Enterprise Inc dba The Carpet Store and More is current and in good standing. 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 this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 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). It “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 (6th ed. 1990). 3. The undisputed fact that AZ Builders and The Carpet Store were not given the full fifteen day time period set forth in the two Corrective Work Orders at issue precludes a finding that AZ Builders and The Carpet Store failed to take appropriate corrective action in response to the two Corrective Work Orders. 4. Finding a violation of the charged provisions of 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) is precluded by A.R.S. § 32-1155(C). That provision states that the ROC may not cite a contractor for failure to meet building codes or workmanship standards if the work has been modified by another contractor. In the matters at issue, there was no dispute that Complainant had caused an alternative contractor to remove and replace the Complainant’s bamboo floor before the Citations in these matters were issued by the Registrar of Contractors. Therefore, although the facts support it, this tribunal cannot legally find a violation of the charged provisions of A.R.S. § 32-1154(A)(3). RECOMMENDed Order for 2011A-5875-ROC In view of the foregoing, it is recommended that this matter be dismissed. 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. RECOMMENDed Order for 2011a-5978-roc In view of the foregoing, it is recommended that this matter be dismissed. 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, April 25, 2012.

/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