ALJDEC decisions subject to certification as final

2013A-4952-ROC · Registrar of Contractors · 2015-10-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 5, 2015, at 1:00 p.m. APPEARANCES: Rhonda Bannard (hereinafter “Complainant” or “Ms. Bannard”) was represented by her attorney, Matthew Meaker, Esq. International Custom Homes LLC dba Exotic Flooring (hereinafter “Respondent” or “Exotic Flooring”) was represented by its attorney, Joshua Black, Esq. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22) as alleged by Complainant and as cited by the Arizona Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Respondent is the holder of License No. CR-8.169011-D issued by the Registrar. This is a residential matter in which on or about May 5, 2012, Respondent contracted to install new floor coverings including a new bamboo wood floor and carpet in Complainant’s residence at 1924 E. Lamar Road, Phoenix, Arizona 85016. Shortly after Respondent completed its construction work at Complainant’s residence, the new bamboo floor started cupping and gapping and the new carpet in Complainant’s residence displayed unacceptable seams and rippling. Complainant notified Respondent of the problems with the new bamboo flooring, the carpet installation, and the floor tile installation. Respondent failed to resolve the matters the matters to Complainant’s satisfaction. On or about October 14, 2013, Complainant filed a Complaint against Respondent with the Registrar. Pursuant to the filing of the formal Complaint, an assigned agency Investigator conducted an onsite inspection of Complainant’s residence. On December 10, 2013, a written Corrective Work Order was issued by the Registrar. The written Corrective Work Order provided, in relevant part, as follows: Pursuant to our recent investigation of this complaint and based on the facts before the agency at this time, the following action must be taken no later than 15 calendar days from the date of this letter. FAILURE TO COMPLY MAY RESULT IN THE ISSUANCE OF A CITATION, SUSPENSION AND/OR REVOCATION OF YOUR LICENSE TOGETHER WITH CIVIL PENALTIES OF UP TO $500 FOR EACH VIOLATION.

Contractor to correct by appropriate means the following:

1. The carpet in the master bedroom is rippling real bad at the foot of the bed. Seams are showing in front of the bedroom door. It is loose at the sill at the arcadia door. The carpet is wearing very badly, very fast.

2. The foot mark in front of the master bath toilet, appears to be [from] when the tile sealer was applied.

3. The bamboo flooring is hollow sounding at the entry to the living room, and in the hallway for the bedrooms. The floor is starting to cup at the entry, in the living room, kitchen, at the south side of the dining room table and in the office.

4. The bamboo flooring was installed too close to the arcadia and swing door to the back patio.

This contractor is to replace any of the wood flooring that has cupped and or excessively gapped throughout the entire home where necessary.

Respondent failed to comply with the written Corrective Work Order. After Respondent failed to comply with the Registrar’s written Corrective Work Order, Complainant requested that the Registrar to issue a Citation against Respondent’s license. On June 19, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained two charges:

Charge 1: A violation of Rule 4-9-108, titled ‘Minimum construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).[1]

Charge 2: A violation of A.R.S. § 32-1154(A)(22).[2]

Ms. Bannard testified that Respondent was the only flooring subcontractor that performed construction work in her residence. Ms. Bannard stated that Respondent had performed no corrective work on her carpeting. Ms. Bannard acknowledged that she did not know who or what entity actually installed the carpeting in her residence. Ms. Bannard acknowledged that Respondent had resolved the issue of the foot mark on the floor tile in her residence. Ms. Bannard testified that Respondent had not corrected the bamboo wood floor, despite the written Corrective Work Order issued by the Registrar. Ms. Bannard acknowledged that she had received several certified letters from Respondent regarding corrective work on her bamboo floor. Ms. Bannard said that she had repeated telephone calls with Respondent and that she offered suggestions on how the Respondent could obtain help in paying for the cost of repair. Ms. Bannard said that she believed that the problem was that Respondent did not have the money to actually correct her bamboo floor. Ms. Bannard said that she had not denied access to Respondent. Ms. Bannard’s testimony is found to be credible. The assigned Registrar Investigator, Randy Cason (hereinafter “Investigator Cason”), testified that he was not the original Investigator in this matter and that the written Corrective Work Order had been issued before the matter was assigned to him. Investigator Cason stated that he performed a compliance inspection at Complainant’s residence on March 26, 2015. Investigator Cason testified that no work had been performed on the carpeting in Complainant’s residence. Investigator Cason acknowledged that Respondent had denied that it had installed the new carpeting in Complainant’s residence. Investigator Cason said that the Complainant was not sure who installed the carpeting in her residence. Investigator Cason testified that the Complainant acknowledged that Respondent had resolved the problem with the floor tile in her residence. Investigator Cason testified that Respondent had performed no corrective action on Complainant’s bamboo wood floor. Investigator Gerald said that the bamboo wood floor displays excessive cupping and requires proper correction. Investigator Cason opined that Respondent had failed to comply with the written Corrective Work Order issued by the Registrar. Investigator Cason testified that he performed a pre-hearing inspection on October 2, 2015. Investigator Cason stated that no additional corrective work had been performed and that the only change was that the condition of the bamboo wood flooring had continued to worsen. Investigator Cason’s testimony is found to be credible. Vincent Ferranti (hereinafter “Mr. Ferranti”) testified that he is a floor covering expert for Floor Covering Inspections. Mr. Ferranti stated that he conducted an onsite inspection at Complainant’s residence on January 22, 2013. Mr. Ferranti said that he observed widthwise, hollow sounding bamboo planks, and that Respondent had failed to provide expansion spacing as specified in the manufacturer’s recommendations. Mr. Ferranti opined that Respondent had disregarded and departed from the manufacturer’s specifications and that Respondent failed to install the bamboo floor in a professional and workmanlike manner. Mr. Ferranti opined that Respondent did not comply with the Registrar’s Corrective Work Order. Mr. Ferranti opined that the entire bamboo floor has to be removed and replaced. Mr. Ferranti’s testimony is found to be credible. Stephan Parsons (hereinafter “Mr. Parson”) testified that he was formerly Complainant’s significant other and that he was living with Complainant when the new floor coverings were installed in Complainant’s residence. Mr. Parsons said that he did not know who installed the new carpeting in Complainant’s bedroom. Mr. Parsons said that Respondent was the only flooring subcontractor involved in the construction project. Hossein A. Darmani (hereinafter “Mr. Darmani”) testified that he is the qualifying party for the Respondent. Mr. Darmani acknowledged that Respondent installed the bamboo wood flooring in Complainant’s residence. Mr. Darmani acknowledged that the bamboo wood floor now displays excessive cupping and gapping. Mr. Darmani asserted that the failure of the bamboo wood floor in Complainant’s residence was because the Complainant insisted on the replacement of the bamboo floor rather than the corrective action that Respondent was willing to perform. Mr. Darmani asserted that Respondent had repeatedly requested access to Complainant’s residence to perform corrective action on the bamboo floor.[3] Mr. Darmani acknowledged that the bamboo floor was installed without the spacing recommended by the manufacturer. Mr. Darmani said that the general contractor for the project instructed Respondent to install the new bamboo floor without the recommended spacing. Mr. Darmani denied that Respondent had anything to do with the carpet installation in Complainant’s residence. Mr. Darmani said “we don’t do carpet.” . CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). 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. 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). Mr. Ferranti credibly testified that Respondent disregarded and departed from the manufacturer’s specifications and that Respondent failed to install the bamboo floor in a professional and workmanlike manner. Mr. Darmani acknowledged that the bamboo floor was installed without the spacing recommended by the manufacturer. Complainant established that the bamboo wood flooring in her residence displays excessive gaping and cupping and that the bamboo flooring requires complete removal and replacement. Investigator Cason said that the Complainant was not sure who installed the carpeting in her residence. Ms. Bannard acknowledged that she did not know who or what entity actually installed the carpeting in her residence. Mr. Parsons said that he did not know who installed the new carpeting in Complainant’s bedroom. In view of the fact that the general contractor was also performing work at Complainant’s residence the preponderance of the evidence is insufficient and fails to support a finding that Respondent installed the carpeting in Complainant’s bedroom. The Corrective Work Order was issued on December 10, 2013. Respondent’s written requests to perform corrective work on Complainant’s residence did not start until March 13, 2015. Ms. Bannard credibly testified that she did not deny access to Respondent. Complainant established that Respondent failed to comply with the Registrar’s written Corrective Work Order. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32- 1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. CR-8.169011-D of Respondent International Custom Homes LLC dba Exotic Flooring, shall be suspended for five (5) days. It is further recommended that Respondent International Custom Homes LLC dba Exotic Flooring, pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(E). 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 licenses 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 five days from the date of the certification. Done this day, October 14, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[2] A.R.S. § 32-1154(A)(22) provides as follows:

Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. [3] See Exhibit Nos. R-1, R-2, and R-3.

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