ALJDEC decisions subject to certification as final

2012A-3068-ROC · Registrar of Contractors · 2012-12-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 12, 2012, at 1:00 p.m. APPEARANCES: Complainant Antouine J. Castaneda appeared on his own behalf; Respondent Express Home Services LLC DBA: Express Flooring was represented by Fidelis V. Garcia, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. K-8.200037-D to Express Home Services LLC DBA: Express Flooring (“Respondent”). 2. On or about June 15, 2012, Antouine J. Castaneda (“Complainant”) filed a Complaint with the Registrar that alleged that the hardwood floor that Respondent installed in his home at 18347 North Calacera Street in Maricopa, Arizona, was coming unglued and that Respondent had damaged Complainant’s home when it installed the floor. Complainant requested that the Registrar require Respondent to replace the floor or return the $18,764.00 that he had paid for the floor. 3. The Registrar’s assigned inspector, Mark Alyea, performed a jobsite inspection. On July 10, 2012, Inspector Alyea issued a Corrective Work Order (“CWO”) that required Respondent to take certain corrective actions within fifteen calendar days, in relevant part as follows: Contractor to correct by appropriate means the following.

1.There are fourteen spots in the wood flooring, that start at the entry and down the hallway to the kitchen, that are hollow sounding and have separated from the concrete floor. Also there are twenty-two hollow spots in the living room. Four hollow spots in front of the kitchen island cabinet. One hollow spot in front of the dishwasher, two under the dining room table. These hollow spots include the sink hole in the living room.

2.In the master bathroom the contractor knocked the toilet paper holder off the wall and now there is a hole in the drywall too.

3.All the tops of the baseboard corners on the first floor need to be repainted.

4.At the entry hallway by the dining room table, there is an end joint in the wood floor that is wider and needs to be addressed. Also one in front of the TV and one at the kitchen side of the TV.

5.There is a long seam in the wood floor that is not very tight in front of the couch.

6.The floor tile in the front hall bathroom has a chip out of the tile on the [hinge] side of the door.

7.The contractor got paint on the garage floor when he was painting the baseboards.

4. The CWO advised the parties that “[f]rom a scheduling point of view and in order that the contractor may take corrective measures in an orderly and prompt manner, cooperation between the contractor and complainant is necessary.” 5. After Complainant requested a hearing, the Registrar issued a Citation and Complaint against Respondent charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32- 1154(A)(23). 6. Respondent filed a timely written answer to the Citation and Complaint acknowledging that the floor and related damage needed to be repaired but affirmatively alleging that Complainant and his wife refused to allow Respondent access to their home to replace the floor and to repair the related damage. 7. The Registrar referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing. 8. A hearing was held on December 12, 2012. Inspector Alyea testified. Complainant submitted two exhibits, testified on his own behalf, and presented the testimony of two other witnesses: (1) Sharon Castaneda, his wife; and (2) Henry Jaffe, Respondent’s Installation Manager. Respondent submitted sixteen exhibits and presented the testimony of two witnesses: (1) Mr. Jaffe; and (2) Kimberly Fisher, Respondent’s Design Consultant. Hearing Evidence 9. On or about April 10, 2012, the parties entered into a contract for Respondent to install Legendary Harvest Maple hardwood floor in the family room, dinette, kitchen, pantry, halls, foyer, master bedroom, and master bedroom closet of Complainant’s home for a total contract price of $18,764.00. The contract did not specify the method by which Respondent would install the hardwood floor.[2] 10. Between approximately April 13, 2012, and April 20, 2012, Respondent installed the hardwood floor by gluing down the flooring planks directly onto the concrete substrate. According to the work order for the job, Respondent’s installer’s work included moving a safe, appliances, and heavy furniture,[3] but the contract did not include line items or itemized costs for this work. After the installation, Complainant signed a form to indicate that he was “completely satisfied with the flooring and installation.”[4] 11. In May 2012, the floor started coming up, buckling, and showing gaps between boards. 12. On or about June 25, 2012, after Complainant filed the Complaint with the Registrar, Respondent sent letters to Complainant and to his attorney requesting that it be allowed access to Complainant’s home to repair the floor.[5] Complainant and his wife did not allow such access or respond to Respondent’s letters. 13. Respondent also retained Independent Inspection Service of Phoenix (“Independent Inspection”) to inspect the floor and to render an opinion on the reason for its failure. On July 17, 2012, David Rosen of Independent Inspection issued a report of the results of his inspection, as follows: (1) The results of moisture testing procedures “did not indicate the presence of a moisture related issue . . .”; and (2) The results of pH testing “registered elevated alkali readings . . . .”[6] The report concluded: Based on the findings of this inspection, the stated concern regarding numerous randomly located planks with hollow sounds was substantiated. However, the source of the hollow sounding planks was not determined at the time of inspection. There are numerous possible causes for this condition that include but are not limited to: Inadequate or wrong adhesive used, adhesive bond failure due to improper subfloor prep, substrate flat/level issues, wrong trowel size, insufficient adhesive transfer onto the back of the planks, traffic on the flooring prior to the adhesive being properly cured, adhesive failure due to excessive slab moisture and/or alkalinity, brittle adhesive, adhesive was too dry when product was installed (excessive open time), planks not applied firmly into the adhesive, etc… Widespread destructive testing may be necessary to accurately determine the cause of the random adhesion failure that occurred.

Note: Possible corrective actions may include removing the existing flooring and adhesive residue and performing moisture testing of the substrate following the manufacturer’s recommendations, followed by installing the flooring as a floating floor system according to the manufacturer’s installation guidelines.[7]

14. Mr. Jaffe testified that Respondent routinely tests for moisture in the substrate before installing a hardwood floor and that in the nine years that he has worked for Respondent, he has never before seen a floor fail due to excess alkalinity in the substrate. 15. Complainant testified that Mr. Jaffe told him that Respondent would have to install a floating floor because conditions at the jobsite prevented it from installing a “hardwood floor.” Complainant testified that Mr. Jaffe said that floating floors have a funny “plank sound” when they are walked upon. 16. Complainant and Mrs. Castaneda acknowledged that they are not experts in construction and that they had never heard of a floating floor until this dispute arose. Complainant and Mrs. Castaneda acknowledged that they did not request that Respondent use a specific method to install the hardwood floor. However, Complainant testified that he paid almost $19,000.00 for a hardwood floor and that he wants his money back because Respondent cannot install the floor that he paid for. 17. Inspector Alyea testified that the planks in a floating floor are not glued to the substrate but, instead, are glued together to float over a sound and moisture barrier. Inspector Alyea testified that a floating floor is an acceptable way to install a hardwood floor. 18. Mr. Jaffe testified that he offered a floating hardwood floor to Complainant to simplify the process of repairing the floor but that he never told Complainant that Respondent could not repair the hardwood floor at Complainant’s home using the glue-down method. Mr. Jaffe testified that Respondent could treat the substrate to reduce its alkalinity and replace the existing hardwood floor using the glue-down method. 19. Complainant and Mrs. Castaneda have a one-year-old child, a three- year-old child, and two dogs. They testified that they do not want to expose their children and pets to harsh chemicals. Complainant and Mrs. Castaneda testified that they were told that it would take two to three weeks to treat the floor. Mrs. Castaneda testified that her family stayed at Arizona Grand Resort when Respondent initially installed the floor and that she asked Mr. Jaffe for Respondent to pay for her family to stay at the Arizona Grand Resort during the time it repaired the floor. 20. Mr. Jaffe testified that he estimated that the entire process of tearing up the existing floor, treating the concrete substrate, and reinstalling a glue-down hardwood floor would take a week or a week and a half, but that he could not say for certain until Respondent started the repairs. Mr. Jaffe testified that to accommodate Complainant and his family, Respondent could repair half of the hardwood floor, then repair the other half. 21. After Inspector Alyea issued the CWO, Mr. Jaffe sent letters via certified mail to Complainant requesting access to comply with the CWO on or about July 26, 2012,[8] August 3, 2012,[9] August 7, 2012,[10] August 21, 2012,[11] August 27, 2012,[12] September 6, 2012,[13] and November 30, 2012.[14] Complainant or Mrs. Castaneda signed for receipt of all the letters, but did not respond in writing to any of them. 22. Mrs. Castaneda testified that although Respondent sent numerous letters, when she called during normal business hours and left a message for Respondent’s manager, “Mike,” no one called back. Mrs. Castaneda acknowledged that she had Mr. Jaffe’s number and e-mail address and that sometimes Mr. Jaffe returned her calls. 23. In September 2012, Mr. Jaffe asked Ms. Fisher to show Complainant and Mrs. Castaneda tile because they were not happy with their options for repairing the hardwood floor. On September 8 or 9, 2012, Ms. Fisher showed Complainant and Mrs. Castaneda 20” x 20” tile samples and they made first and second choices of tile. Mr. Jaffe offered to have Respondent install tile in the areas where the hardwood floor was installed as well as in two small bathrooms. 24. Mr. Jaffe testified that he informed Complainant and Mrs. Castaneda that Respondent would perform the tile installation at no additional cost. Mr. Jaffe testified that he sent a quote for the tile floor in the amount of $19,069.44 to Complainant and Mrs. Castaneda so that they could compare prices. Mr. Jaffe testified that if the cost of the tile floor had been lower than the cost of the hardwood floor, Respondent would have refunded the difference to Complainant and Mrs. Castaneda. 25. Mrs. Castaneda testified that because tile is less expensive than hardwood, she would expect Respondent to refund at least $14,000.00 if it was allowed to replace the hardwood floor with a tile floor. Complainant testified that the estimate for the tile floor included line items for moving the safe, appliances, and heavy furniture, that the price of a tile floor should have been one-third the price of a hardwood floor, and that he expected Respondent to refund at least the cost of installing the hardwood floor. 26. On November 1, 2012, Mr. Jaffe sent an e-mail to Mrs. Castaneda offering to pay her $1,000.00 if she allowed Respondent access to attempt to perform repairs to comply with the CWO.[15] 27. On November 30, 2012, Mr. Jaffe raised the offer to Complainant and his family to $1,500.00 for them to allow access for Respondent to attempt to perform repairs to comply with the CWO.[16] 28. On December 1, 2012, Respondent’s attorney offered an additional $500.00 to Complainant and his family for lodging expenses, payable upon Complainant furnishing a receipt for those expenses.[17] 29. Mrs. Castaneda testified that because she has two small children, her family requires a suite. Mrs. Castaneda testified that it costs $3,754.00 to stay in a suite at the Arizona Grand Resort for two weeks. Mrs. Castaneda testified that the Arizona Grand Resort is 26 miles away from her home in Maricopa and that, although Harrah’s resort is closer, it does not have suites. 30. Inspector Alyea testified that the Registrar assumes that contractors have the expertise to determine the appropriate methods of repairing items on the CWO and that the Registrar does not dictate the method of repair. 31. Inspector Alyea testified that he never made a determination that the hardwood floor in Complainant’s home could not be repaired. Inspector Alyea testified that the Registrar does not require contractors to pay for lodging for property owners while the contractor performs repairs. 32. Inspector Alyea acknowledged that the Registrar had not required Respondent to refund the cost of the floor and testified that requiring such a refund would violate the Registrar’s policy. 33. Complainant testified that Respondent’s mistake in failing to test the substrate for alkalinity resulted in the failure of the hardwood floor and that he could not agree to any of the options that Respondent presented for repair of the floor. Complainant requested that the Registrar require Respondent to refund the price of the floor. 34. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website. Such prior License record reflects that on December 24, 2012, Respondent’s license was current, one complaint had resulted in discipline, 25 complaints were closed as resolved/settled/withdrawn, and six complaints were pending against the license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction to determine whether Respondent violated the charged subsections of A.R.S. § 32-1154(A).[18] 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[19] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[20] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[21] 3. The Registrar requires licensed contractors to provide a two-year warranty for their workmanship.[22] Complainant established that within this two-year period, the hardwood floor that Respondent installed exhibited the deficiencies identified in the CWO. Therefore, Complainant established that Respondent’s installation of the hardwood floor was unprofessional and not workmanlike, in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[23] 4. A contractor must be afforded access and an opportunity to perform corrective work to comply with a CWO before the Registrar disciplines the contractor’s license. Complainant may not dictate Respondent’s repair methods because as a licensed contractor, Respondent is presumed to have the expertise to accomplish repairs according to the Registrar’s standards. Because Respondent established that Complainant did not allow reasonable access for it to comply with the CWO, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(23).[24] If Respondent fails to perform repairs in a professional and workmanlike manner and in compliance with the Registrar’s standards, Complainant may request a compliance hearing. 5. Because Complainant did not establish that Respondent is unable to repair or replace the hardwood floor to comply with the Registrar’s standards, restitution under A.R.S. § 32-1156.01 is not available.[25] Because the legislature has not empowered the Registrar to award consequential damages,[26] under no circumstances may the Registrar require Respondent as a condition of avoiding discipline against its license to pay for the Complainant and his family to stay in a suite at a resort while Respondent performs repairs to the hardwood floor. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Express Home Services LLC DBA: Express Flooring’s License No. K-8.200037-D until it has performed in a professional and workmanlike manner the repairs that the CWO directed it to perform. It is further recommended that if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is acceptable to the Registrar that it has performed in a professional and workmanlike manner the repairs that the CWO directed it to perform, the Registrar should not suspend Respondent’s license but, instead, shall close Complainant Antouine J. Castaneda’s Complaint in Case No. 2012-3068. 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, December 26, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Administrative Law Judge corrected a scrivener’s error in the caption that resulted in a misspelling of Complainant’s first name. [2] See Respondent’s Exhibit R-1 at 1. [3] See Respondent’s Exhibit R-2 at 2. [4] Respondent’s Exhibit R-2 at 1. [5] See Complainant’s Exhibit C-B and Respondent’s Exhibit R-3. [6] Respondent’s Exhibit R-5 at 2. [7] Id. [8] See Respondent’s Exhibit R-6. [9] See Respondent’s Exhibit R-8. [10] See Respondent’s Exhibit R-9. [11] See Respondent’s Exhibit R-10. [12] See Respondent’s Exhibit R-11. [13] See Respondent’s Exhibit R-12. [14] See Respondent’s Exhibit R-14. [15] See Respondent’s Exhibit R-14 at 2. [16] See id. at 1. [17] See Respondent’s Exhibit R-16. [18] See A.R.S. §§ 32-1151 to 32-1169. [19] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837, 838 (1952). [20] See A.A.C. R2-19-119(B)(2). [21] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [22] See A.R.S. § 32-1155(A). [23] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [24] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” [Emphasis added.] [25] Cf. Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (Ct. App. 1990) (The Registrar required the contractor to refund the cost of a solar heating system because after numerous attempts, the contractor was unable to repair the system so that it provided a level of ambient heat that made the structure habitable). [26] See J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 Ariz. 400, 406, 690 P.2d 119, 125 (Ct. App. 1984). Consequential damages are “[l]osses that do not flow directly and immediately from an injurious act but that result indirectly from the act.” Black’s Law Dictionary, supra, at 416.

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