ALJDEC decisions subject to certification as final

2014A-1720-ROC · Registrar of Contractors · 2015-09-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 16, 2015, at 1:00 p.m. APPEARANCES: Chris Martin (hereinafter “Complainant” or “Mr. Martin”) appeared on his own behalf. R M Flooring Enterprises Inc. (hereinafter “Respondent”) appeared through its qualifying party and owner, Walter Elmer Rico (hereinafter “Mr. Rico”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(2), 32-1154(A)(3), and 32- 1154(A)(22) as alleged by Complainant and as cited by the 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-8.205455-D issued by the Registrar. Respondent’s License No. CR-8.205455-D License expired on April 1, 2014. Respondent is also the holder of License No. CR-8.292341-D issued by the Registrar. Respondent’s License No. CR-8.292341-D was issued on June 5, 2014. This is a residential matter in which on or about May 5, 2012, Complainant contracted with Respondent for the installation of a new bamboo wood floor at his residence at 1507 W. El Alba Way, Chandler, Arizona 85281 (hereinafter the “residence”). Respondent installed the new bamboo wood floor on or about November 17, 2012, and Complainant paid Respondent the agreed-upon contract amount of $2,250.00. Shortly after Respondent completed its construction work at Complainant’s residence, the new bamboo floor started cupping and gapping. Complainant notified Respondent of the problems with the new bamboo wood floor. Respondent denied any responsibility for the cupping and gapping in the new bamboo wood floor. On May 1, 2014, 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 15, 2014, a written Directive was issued by the Registrar. The written Directive provided, in relevant 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:

1. 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 Directive. After Respondent failed to comply with the Registrar’s written Directive, Complainant requested the Registrar to issue a Citation against Respondent’s licenses. On May 21, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained three charges: Charge 1: A violation of A.R.S. § 32-1154(A)(2).[1]

Charge 2: 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).[2]

Charge 3: A violation of A.R.S. § 32-1154(A)(22).[3]

Mr. Martin testified that the Respondent failed to properly acclimatize the bamboo wood flooring before installing it. Mr. Martin stated that the Respondent acknowledged that he had only allowed the bamboo wood flooring to acclimatize for three days, rather than the five days required by the manufacturer. Mr. Martin said that the bamboo wood floor in his residence has completely failed. Mr. Martin said that Respondent has made no effort to correct the problems with his bamboo wood floor, despite the written Directive issued by the Registrar. The assigned Registrar Investigator, Theodore Gerald (hereinafter “Investigator Gerald”), testified that he had performed the initial onsite inspection and that he had prepared the written Directive. Investigator Gerald stated that he performed a compliance inspection at Complainant’s residence on September 14, 2015. Investigator Gerald testified that Respondent has performed no corrective action on Complainant’s bamboo wood floor. Investigator Gerald said that the bamboo wood floor displays excessive cupping and requires complete replacement. Investigator Gerald testified that the Respondent acknowledged that he had only allowed the bamboo wood flooring to acclimatize for three days, rather than the five days required by the manufacturer, and that Respondent had failed to perform a moisture test on Complainant’s floor before installing the new bamboo wood flooring. Investigator Gerald opined that Respondent had disregarded and departed from the manufacturer’s specifications. Investigator Gerald opined that Respondent did not comply with the Registrar’s Directive. Investigator Gerald’s testimony is found to be credible. Mr. Rico testified that he installed the bamboo wood flooring in Complainant’s residence in a professional and workmanlike manner. Mr. Rico acknowledged that the bamboo wood floor displayed excessive cupping and gapping. Mr. Rico asserted that the failure of the bamboo wood floor in Complainant’s residence was a product failure, rather than a workmanship matter. Mr. Rico said that he did not comply with the Registrar’s Directive because he did not agree with the Directive. Mr. Rico denied that he informed Investigator Gerald and Complainant that he had only allowed the bamboo wood flooring to acclimatize for three days. Mr. Rico said that he allowed the bamboo wood flooring to acclimatize for five days. Mr. Rico acknowledged that he had not performed a moisture test on Complainant’s floor before installing the new bamboo wood flooring in the Complainant’s residence. Brandon Hepworth (hereinafter “Mr. Hepworth”) testified that he is a general contractor and that he had worked with Mr. Rico in the past. Mr. Hepworth said that Mr. Rico is a good contractor. Mr. Hepworth said that he has had problems with bamboo wood flooring in the past. Mr. Hepworth said that the heat and dryness in Arizona tends to cause bamboo wood floors to cup and gap. Mr. Hepworth said that he had seen photographs of the Complainant’s bamboo wood floor and that he agreed that the floor had failed. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). The expired status of Respondent’s Class CR-8.205455-D License does not deprive Complainant of his right to prosecute his complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s Complaint. See A.R.S. § 32-1154(C). 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). Complainant established by a preponderance of the evidence that Respondent did not properly acclimatize the bamboo wood flooring before installing the flooring in Complainant’s residence as per the manufacturer’s specifications. Complainant established that Respondent failed to perform a moisture test on Complainant’s floor before installing the new bamboo wood flooring as per the manufacturer’s specifications. Complainant established that the bamboo wood floor in his residence displays excessive gaping and cupping. Complainant established that Respondent failed to comply with the Registrar’s written Directive. This Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(2), 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 Nos. CR-8.292341-D and CR- 8.205455-D License of Respondent R M Flooring Enterprises Inc., shall both be suspended for five (5) days. It is further recommended that Respondent R M Flooring Enterprises Inc., 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 R M Flooring Enterprises Inc., 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, September 17, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] A.R.S. § 32-1154(A)(2) provides, in relevant part, as follows:

A. 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: . . . . 2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code. [2] 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.

[3] 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.

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