ALJDEC decisions subject to certification as final

2014A-1546-ROC · Registrar of Contractors · 2015-11-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 18, 2015, with the record reopened to address an ex parte communication from Complainant following the close of the hearing. The record closed on October 16, 2015, to allow Respondent an opportunity to respond to the communication. APPEARANCES: Complainant Senol Pekin appeared on his own behalf. Respondent Randy Michael Perkins doing business as R and M Installations was represented by Mark Bainbridge. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors. Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. Respondent holds Arizona Contractor’s License No. CR-8.091199-D. 2. On or about November 5, 2013, Complainant entered into a contract with Respondent for the removal of carpet and pad, surface preparation, and installation of wood flooring for a total contract price of 2748.00. Complainant drafted the contract in an email and sent it to Respondent for his approval.

3. On or about April 21, 2014, Complainant field a complaint with the Registrar of Contractors (Registrar) alleging that Respondent had damaged the surface finish of the hardwood installed, had violated the contract by not following the installation instructions, had not installed flat and level flooring, that the flooring had a corrugated look, and that Respondent had misrepresented his employer as Toliver’s Carpet One. 4. In response to the complaint, the Registrar of Contractors assigned Investigator Beau Cruz to investigate these allegations. Following a jobsite inspection on July 14, 2014, Investigator Cruz issued a Directive from the Registrar following the inspection. The Directive stated, in pertinent part, as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

Complaint 3) Installation is not flat, and level: Floor was not level in the foyer (Entrance) area with a dip in the surface in excess of ⅛″ which was clearly visible in normal daylight, numerous areas in the Family Room area in which it was clearly demonstrated, that the floor is excessively wavy. Respondent stated, that he did not float floor with self-leveling compound. Respondent could have very well informed complainant that he would not install flooring unless respondent was allowed to float floor so as to ensure that flooring was installed in a professional and workmanlike manner. The general contractor and/or the owner should be notified in writing by the contractor that a specific surface area (substrate) is unacceptable for installation.

Respondent failed to reveal verifiable documentation that the potential problem existed with the substrate.

Complaint 4) Corrugated look: Floor was not level in the foyer (Entrance) area with a dip in the surface in excess of ⅛″ which was clearly visible in normal daylight, numerous areas in the Family Room area in which it was clearly demonstrated, that the floor is excessively wavy. Respondent stated, that he did not float floor with self-leveling compound. See complaint #3.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

The Directive indicated that Respondent was to complete the corrective work by October 6, 2014. 5. On October 1, 2015, Respondent emailed Complainant indicating that he “was out of town last week and did not see the directive from the roc until last night.” Respondent stated that he could pick up the product on October 2, 2014, deliver it to Complainant’s home on October 3, 2014, and begin the repairs on October 6, 2014. 6. Later that night, Respondent again emailed Complainant and stated he was no going to remove all the flooring, but was going to do a plank replacement in the affected areas. Respondent indicated he was going to level the replacement planks with glue and shims if necessary. 7. On the afternoon of October 2, 2014, Respondent again emailed Complainant asking for confirmation that he could deliver the product on October 3, 2014, to begin work on October 6, 2015. 8. At 9:56 p.m. on October 2, 2014, Complainant replied to Respondent’s email asking numerous questions regarding how Respondent planned to perform the repair work and how the installation would be in conformity with the contract and with the installation instructions. 9. At 6:33 a.m. on October 3, 2014, Respondent replied to Complainant’s email that he needed to know if Complainant would let him in to perform the work and when he could start. 10. At 12:04 p.m. on October 7, 2014, Respondent again emailed Complainant and again asked if Complainant would actually allow him to perform the work on Wednesday. 11. Investigator Cruz performed a prehearing jobsite inspection on September 9, 2015. Investigator Cruz was advised that no corrective work had been performed following the Directive. 12. On June 3, 2015, the Registrar issued a Citation to Respondent alleging a possible violation of A.A.C. R4-9-108, Minimum Construction Standards, and thereby of A.R.S. § 32-1154(A)(3). The citation did not cite Respondent for failure to comply with a written directive from the Registrar. 13. Respondent testified at the hearing that when he first met with Complainant, he stated that his bid could change after the carpet was removed depending on the condition of the concrete. Once the existing floor was removed and the subfloor could be examined, Respondent had a lengthy conversation with Complainant indicating that, the subfloor was not level, but it was very close. Respondent testified that he informed Complainant that he could, at an additional cost, grind the subfloor to ensure it was level, but Complainant stated that he had observed the concrete in the rain when the home was being built and did not see any puddles forming, so he was not concerned. Respondent stated that after he realized how particular Complainant was, he proceeded to spend several hours grinding the subfloor in the dining room to avoid problems with Complainant. Respondent testified that he was always willing and able to perform the corrective work as directed by the Registrar, but he was not planning to remove the entire floor and reinstalling the entire floor. Respondent also argued that Complainant refused to allow an inspector hired by Respondent into the home to examine the floor and identify what areas needed to be repaired. 14. Complainant testified that the conversation with Respondent regarding the subfloor never occurred. Complainant argued that Respondent was contractually obligated to level the subfloor in accordance with the contract and the installation instructions for the flooring. Complainant indicated at the hearing that he was concerned with Respondent’s proposed method of repairing the work as it may affect his warranty on the product. Complainant stated that he denied all of Respondent’s allegations regarding statements Complainant made that were not written or recorded. 15. Investigator Cruz testified that if Complainant refused to allow Respondent to level the subfloor, he should have had Complainant sign a written statement to that effect or have Complainant agree to let him float the floor to ensure a proper installation. Investigator Cruz stated that when Respondent agreed to install the floor, he was required to do so in a way that was in compliance with the workmanship standards. 16. Following the hearing, Complainant filed an ex parte communication in which he took issue with some of the testimony offered at the hearing and offered additional statements and information in contradiction. Respondent objected to the communication because the statements were not made during the hearing and were not subject to cross-examination. Respondent asked that the communication be stricken from the record and not be considered in this matter. This Administrative Law Judge did not consider the statements made in the communication in determining the outcome of this case. 17. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 5, 2015. Such prior License record reflects that Respondent’s License No. CR-8.091199-D is current. Such prior License record also reflects that there were no prior complaints against Respondent’s license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence 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 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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 (Rev. 6th ed. 1990). 3. As a general principle in construction, a contractor who performs work on top of a surface prepared by another contractor accepts the surface. The second contractor should inspect the surface for any flaws or defects that would affect the work he proposes before performing the work. If he finds the surface to be unacceptable, he should call any defects to the owner’s attention so that the owner can choose whether to pay for the defective surface to be corrected or, if the owner is not willing to pay to correct the surface, the subsequent contractor may obtain an explicit warranty disclaimer.[1] In addition, after a second contractor has covered the original contractor’s work, the Registrar cannot apportion fault because the second contractor’s work may have exacerbated or even caused the observed deficiency.[2] 4. The evidence established that when Respondent installed the wood flooring at Complainant’s home, he did so in a manner that resulted in excessive unevenness in areas. That defect may be been caused or exacerbated by the unevenness of the concrete subfloor, but Respondent did not obtain an explicit warranty disclaimer from Complainant prior to installing the flooring over the defective subfloor. Complainant established Respondent’s work installing the wood flooring was not done in a professional and workmanlike manner in violation of A.A.C. R4-9-108,[3] and thereby of A.R.S. § 32- 1154(A)(3).[4] RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Order entered in this matter, Respondent's License No. CR-8.091199-D should be suspended for a period of one (1) day. 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, November 5, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] While no Arizona authority addresses the Registrar’s policy that a subsequent contractor who accepts a surface prepared by an earlier contractor also accepts full responsibility for the outcome, the policy is supported by case law from other jurisdictions. See generally cases cited at “Duty of Contractor to Warn Owner of Defects in Subsurface Conditions,” A.L.R.3d 1213 (1976). A contractor who knew or should have known of a defect in the surface does not perform construction in a workmanlike manner if the contractor fails to notify the owner of the defect and the construction later fails due to the defective surface. See, e.g., Parker v. Thornton, 596 So. 2d 854, 858 (Miss. 1992); Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188, 1199 (Alaska 1975). The principle is based on common sense and a need for fair dealings between contractors and property owners:

For the requirements of public order and the obligation implicit in every contract that the work will be done in a good and workmanlike manner would compel us to reject a contention that an undertaker is not responsible for building upon a site which he knows to be defective. In such a case, the barest standards of care would require him to bring the defect to the attention of the owner before proceeding. The owner would then have an opportunity to make the indicated adjustment in the contract to provide against the defective soil condition of which he had no prior knowledge. . . .

Wurst v. Pruyn, 202 So. 2d 268, 271-72 (La. 1967) (citation omitted). [2] Courts in Arizona may apportion fault for construction defects among parties and non-parties under the Uniform Contribution Among Tortfeasors Act, A.R.S. §§ 12-2501 to 12-2509. The Registrar has no such statutory authority to apportion fault among contractors. [3] 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.” [4] 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.”

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