ALJDEC decisions subject to certification as final

2014A-1242-ROC · Registrar of Contractors · 2014-09-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 22, 2014, at 8:00 a.m. APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General, John Tellier, Esq. Val E West Construction Inc. dba Valwest Construction (hereinafter “Valwest”) was represented by its attorney, Craig L. Keller, Esq., Gust Rosenfeld P.L.C. 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 Background Valwest is the holder of License No. KB-1.151999-D issued by the Registrar. License No. KB-1.151999-D is a dual building contractor’s license. This classification allows the scope of work permitted by the B-1 General Commercial Contractor’s and the B- General Residential Contractor’s licenses.[1] Valwest is also the holder of License A.267710-C issued by the Registrar. License A.267710-C is a commercial general engineering license.[2] On or about April 11, 2013, the Registrar received a Complaint against Valwest from homeowner William L. Pinches (hereinafter “Mr. Pinches”) alleging that there was still a smoke odor in his residence and that a hardwood floor installed by Valwest was cupping and not adhering to the subfloor. On or about May 7, 2013, the Registrar conducted a jobsite inspection of Respondent’s construction project at 4325 W. Mariposa Grande, Glendale, Arizona 85310. The Registrar subsequently issued a Corrective Work Order on May 22, 2013, directing Valwest to remedy its deficient workmanship on the construction project. The Corrective Work Order provided, in pertinent part, as follows: Items of complaint are as follows:

1. Smoke odor is still in outer wall: ROC: The parties reached an agreement wherein Cheuvront Construction[3] has agreed to resolve this item.

2. Hardwood floor cupping and not adhering: ROC: Per jobsite agreement, Valwest Construction will replace the wood floor. [Footnote added.]

On May 8, 2014, the Registrar issued a Citation and Notice of Hearing charging Valwest with alleged violations of A.R.S. §§ 32-1154(A)(3), 32- 1154(A)(23), and 32-1154(A)(21). Testimony of Registrar Investigator Phillip John Coscia Investigator Phillip John Coscia (hereinafter “Investigator Coscia”) testified that he had been an Investigator/Inspector with the Registrar of Contractors for twenty-one years. Investigator Coscia stated that he performed an onsite inspection at 4325 W. Mariposa Grande, Glendale, Arizona 85310 on May 7, 2013. Investigator Coscia testified that the Corrective Work Order was issued on May 22, 2013. Investigator Coscia stated that the Corrective Work Order directed that the wood floor was to be replaced no later than 20 calendar days from May 22, 2013. Investigator Coscia testified that the Registrar received correspondence from Mr. Pinches on or about June 18, 2013, indicating that Cheuvront Construction had resolved the odor problem but that Valwest had “not yet scheduled the wood floor replacement.[4] Investigator Coscia stated that on or about July 12, 2013, he received an email from Valwest indicating that the work was “about 85% done.”[5] Investigator Coscia testified that on or about August 12, 2013, he received an email from Valwest indicating that “all work by Valwest Construction is complete.”[6] Investigator Coscia testified that on or about August 29, 2013, he spoke with Mr. Pinches. Investigator Coscia stated that Mr. Pinches said that the new floor was buckling again. Investigator Coscia testified that he performed a second onsite inspection at 4325 W. Mariposa Grande, Glendale, Arizona 85310 on December 19, 2013. Investigator Coscia testified that he confirmed that the wood floor had buckled again and basically looked the same as it did before it was replaced. Investigator Coscia opined that Valwest failed to comply with the terms of the Corrective Work Order. Investigator Coscia testified that Mr. Pinches said that he did not want Valwest back on his property to repair or to replace the wood floor. Investigator Coscia stated that he informed Valwest of Mr. Pinches’ statement and that he made Valwest aware that the legal department for the Registrar of Contractors would review the matter for possible action. Investigator Coscia testified that the cupping of the wood floor violated applicable workmanship and industry standards. Investigator Coscia stated that Valwest had accepted the concrete subfloor as being an appropriate surface for the installation of the new wood floor. Investigator Coscia testified that Valwest could not use the moisture content in the concrete subfloor as an excuse because Valwest had accepted the surface as being appropriate for the installation of the new wood floor. Investigator Coscia testified that Valwest has now replaced the wood floor a third time and that he believes that Mr. Pinches is now fully satisfied with Valwest’s construction work. Investigator Coscia acknowledged that Valwest delivered new wood flooring material for the replacement of the wood floor during his first onsite inspection at Mr. Pinches’ residence. Investigator Coscia acknowledged that he did know that the wood floor had been replaced until the Wednesday before the hearing. Investigator Coscia’s testimony is found to be credible. Testimony of Registrar Investigator Theodore William Gerold Investigator Theodore William Gerold (hereinafter “Investigator Gerold”) testified that he had been a construction investigator for the Registrar of Contractors for over thirteen years. Investigator Gerold stated that he personally took photographs of the wood floor at 4325 W. Mariposa Grande, Glendale, Arizona 85310 on June 19, 2014.[7] Investigator Gerold testified that the photographs accurately depicted the condition of the wood floor on June 19, 2014. Investigator Gerold testified that he observed that the wood floor was peaking at the seams and buckling. Investigator Gerold stated that the wood floor violated applicable workmanship standards. Investigator Gerold’s testimony is found to be credible. Testimony of William L. Pinches Mr. Pinches testified that he and his wife are the owners of the residence located at 4325 W. Mariposa Grande, Glendale, Arizona 85310. Mr. Pinches stated that the residence suffered smoke and fire damage during 2012. Mr. Pinches testified that Valwest was retained by the general contractor for the fire and smoke restoration project that was performed at his residence. Mr. Pinches testified that he filed a complaint with the Registrar of Contractors against Valwest on or about April 11, 2013. Mr. Pinches stated that his complaint was based on a smoke odor that was still present in his residence and the condition of the new wood floor installed by Valwest. Mr. Pinches testified that the new wood floor cupping.[8] Mr. Pinches testified that Investigator Coscia performed an onsite inspection at his residence on or about May 7, 2013. Mr. Pinches stated that during the onsite inspection Valwest delivered new wood flooring materials to store at his residence so that the wood would be acclimated to his residence. Mr. Pinches testified that he knew that Valwest was always willing to replace his wood floor. Mr. Pinches testified that his general contractor, Cheuvront Construction, had to complete the correction of the drywall in his residence before Valwest could replace the wood floor. Mr. Pinches stated that Valwest replaced the wood floor and that at first, the second wood floor looked fine. Mr. Pinches testified that there was a delay before Valwest could remove and replace the cupping wood floor occasioned by other subcontractor’s work. Mr. Pinches stated that he believed that Valwest completed the installation of the second wood floor in a reasonable period of time. Mr. Pinches testified that cupping reappeared on the second wood floor within a week or two. Mr. Pinches stated that he was very disappointed with the second wood floor installation and that he initially did not want Valwest to return to his residence to perform any further corrective action on the wood floor. Mr. Pinches testified that he then agreed to allow Valwest into his residence to install a third wood floor. Mr. Pinches testified that Valwest then retained a flooring expert to determine the cause of the cupping in the wood floors. Mr. Pinches testified that the problems with the moisture problem with the concrete substrate in his residence has been corrected, that Valwest’s new subcontractor installed a third new wood floor in his residence, and that he is now very happy with his new wood floor. Mr. Pinches stated that he no longer wanted to pursue a complaint against Valwest and that he had written the Registrar of Contractors and requested that the complaint against Valwest be dismissed.[9] Mr. Pinches’ testimony is found to be credible. Testimony of Ernest R. Valdez, Jr. Ernest R. Valdez Jr. (hereinafter “Mr. Valdez”) testified that he is the qualifying party for Valwest. Mr. Valdez stated that Valwest utilized a specialty sub-subcontractor to install the first wood floor in Mr. Pinches’ residence.[10] Mr. Valdez testified that the first wood floor displayed unacceptable cupping. Mr. Valdez stated that Valwest acknowledged that the wood floor required correction and was always willing to replace the wood floor in Mr. Pinches’ residence. Mr. Valdez testified that Valwest delivered new wood flooring materials to Mr. Pinches’ residence on or about May 7, 2013, during the first onsite meeting with Investigator Coscia. Mr. Valdez stated that the new wood flooring material was delivered to give the new wood flooring an opportunity to acclimatize in Mr. Pinches’ residence before it was actually installed. Mr. Valdez testified that Valwest was always willing to do what ever was necessary to correct the problem with Mr. Pinches’ wood floor. Mr. Valdez testified that the installation of the second wood floor in Mr. Pinches’ residence was completed on or about June 24, 2013. Mr. Valdez stated that it took 37 days to complete the second wood floor installation because the wood flooring materials had be given sufficient time to acclimatize and the general contractor had to complete repairs to the drywall in the residence before Valwest could install the new wood floor. Mr. Valdez testified that Valwest believed that the wood floor had been properly corrected and that the Corrective Work Order had been fully complied with. Mr. Valdez stated that Valwest was notified that there was a problem with the second wood floor in December, 2013. Mr. Valdez testified that Valwest then hired a flooring consultant and had the concrete subfloor tested. Mr. Valdez testified that installation of the third wood floor in Mr. Pinches’ residence was started on August 13, 2014 and completed on August 15, 2014. Mr. Valdez stated that the delay between December 2013, and August 15, 2014, was due to the delays that Valwest experienced in gaining access to Mr. Pinches’ residence, to the length of time that was required to complete the testing for the subfloor, and to the fact that Valwest’s subcontractor’s work was delayed due to a death in the family. Mr. Valdez testified the new wood floor appeared to be satisfactory and that Mr. Pinches was very satisfied with the new wood floor. Mr. Valdez acknowledged that he issued an email to Investigator Coscia on July 12, 2013, stating that the installation of the new wood floor was 85% complete.[11] Mr. Valdez acknowledged that he issued an email to Investigator Coscia on August 12, 2013, stating that Valwest had completed all of its construction work on Mr. Pinches’ residence.[12] Mr. Valdez acknowledged that the third wood floor installation on Mr. Pinches’ residence was not completed until Augus15, 2014. Mr. Valdez testified that the project was delayed by the necessity of obtaining new baseboards and because of a death in the family of Valwest’s new flooring subcontractor. Valwest’s prior license record with the Registrar of Contractors reflects that License No. KB-1.151999-D has one open complaint and that no previous disciplinary actions have been taken by the Registrar against said license. Valwest’s prior license record with the Registrar of Contractors reflects that License No. A.267710-C has no open complaints and that no previous disciplinary actions have been taken by the Registrar against said license.[13] CONCLUSIONS OF LAW 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.[14] 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). On or about January 9, 2013, Valwest installed a new wood floor in Mr. Pinches’ residence. The new wood floor buckled and Mr. Pinches filed a complaint against Valwest with the Registrar of Contractors. Pursuant to the filing of the formal complaint, an assigned Investigator performed an onsite inspection at Mr. Pinches’ residence and determined that the new wood flooring installation violated applicable professional standards. As a result of the onsite inspection, a Corrective Work Order was issued on May 22, 2013 directing Valwest to replace the buckled wood floor no later than 20 calendar days from May 22, 2013. The wood floor in Mr. Pinches’ residence was not properly replaced until August 15, 2014. Valwest accepted the concrete sub-surface in Mr. Pinches’ residence as being appropriate for the installation of the new wood floor. This Tribunal concludes that Valwest violated the charged provisions of A.R.S. §§ 32- 1154(A)(3),[15] namely, A.A.C. R4-9-108,[16] and A.R.S. § 32- 1154(A)(23).[17] Valwest has the same persons named on its License A.267710-C who are also named on Valwest’s License KB-1.151999-D. Any suspension of one license will automatically result in the suspension of the other license. This Tribunal concludes that Valwest violated the charged provision of A.R.S. § 32-1154(A)(21).[18] RECOMMENDed order In view of the foregoing, it is recommended that License No. KB- 1.151999-D and License No. A.267710-C of Valwest shall be suspended for a period of three (3) days. It is further recommended, in addition to the above-provided penalties, if any, that Valwest 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 Valwest 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 Valwest’s contractors’ licenses, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Valwest, 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, September 8, 2014.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Exhibit 2 (1/14/2000 License Application). [2] See Exhibit 1 (Citation and Complaint). [3] Cheuvront Construction (License No. B.137335-R). [4] See Exhibit 7 (6/18/13 Letter). [5] See Exhibit 8 (7/12/13 Email). [6] See Exhibit 9 (8/12/13 Email). [7] See Exhibit 14 (Photographs). [8] See Exhibit 4 (Complaint). [9] See Exhibit R-1 (8/18/14 Letter). [10] Indentified as Lucas Door & Trim LLC (License No. CR-60.280913-D).

[11] See Exhibit 8 (7/12/13 Email). [12] See Exhibit 9 (8/12/13 Email). [13] See Exhibit 3 (License information from the Registrar of Contractors’ public website). [14] A.A.C. R2-19-119 provides as follows: A. Standard of proof. Unless otherwise provided by law, the standard of proof is a preponderance of the evidence. B. Burden of proof. Unless otherwise provided by law: 1. The party asserting a claim, right, or entitlement has the burden of proof; 2. A party asserting an affirmative defense has the burden of establishing the affirmative defense; and 3. The proponent of a motion shall establish the grounds to support the motion.

[15] 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.” [16] 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.

[17] A.R.S. § 32-1154(A)(23) 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.

[18] A.R.S. § 32-1154(A)(21) provides grounds for suspension or revocation of a contractor’s license as follows: The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

Having a person named on the license who is or was named on any other license in this state or in another state that is under suspension or revocation for any act or omission that occurs while the person is or was named on the license unless the prior revocation was based solely on a violation of this paragraph.

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