ALJDEC decisions subject to certification as final

2015A-660-ROC · Registrar of Contractors · 2016-01-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 18, 2015 APPEARANCES: Robert Marvin, Complainant; Christopher Graham, Respondent’s Attorney; Jon Kopp, Respondent’s representative; Randy Cason, Registrar of Contractors Inspector; Daniel Owen, witness; Cole Marvin, observer ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

FINDINGS OF FACT 1. Complainant contracted with Respondent for the installation of an epoxy floor. Complainant was not satisfied with the results or with repairs made in two areas. 2. On February 12, 2015, Complainant filed a complaint with the Registrar of Contractors. After conducting a job site inspection, Registrar of Contractors Inspector Randy Cason issued a Directive from the Registrar on April 10, 2015. The Directive instructed Respondent to correct debris in the epoxy finish in the kitchen and living room areas, to blend in the finish color around the front door, and to repair two patched areas so they blend in with the existing finish around them. 3. On December 15, 2015, Inspector Cason conducted a pre-hearing inspection and found that no repairs had been attempted. 4. Inspector Cason testified that the standard he applied in making his decision was that the finish should appear uniform throughout and repair should blend in enough that they don’t stand out when view from 10 to 20 feet away. He acknowledged that making such a repair would be difficult and may mean redoing the whole floor, but said it is up to the Respondent to determine the appropriate means of repair. He said the patch at the sink was still Respondent’s responsibility even if Respondent did not make the foot print that was patched there. He noted an area by the front door where the color was different than the rest of the floor. He said it looked like brush marks. He said the standard he used in determining that Respondent should make corrections was borrowed from the standard for a granite floor in that the floor color should be somewhat uniformly distributed. He also used a general standard that repairs should not show. He said Respondent should not be responsible for debris that falls on top of the floor but he pointed out in photos that the debris appears to have been mixed in the epoxy, which would be Respondent’s responsibility. 5. Complainant testified that the debris could not have been caused by him because the windows were closed and the air conditioning was off. He said he could not have opened a window or turned on the air conditioning without causing a footprint in the epoxy. His family had stayed upstairs while the epoxy cured. He said they did not walk on the finished floor until Saturday, the day that Respondent said they could.[1] He said one of the patches was due to a mark that looked like a bucket had been sitting on the epoxy and he would not have had any reason to put a bucket on the floor. Complainant said he was most concerned about the patches showing and the uneven distribution of epoxy, which showed as different heights as well as inconsistent coloring.[2] He offered photos into evidence that show the debris in the epoxy as well. [3] 6. Daniel Owen, the owner of Arizona Polymer Flooring, testified that no epoxy floor is completely free of debris, but if the debris is covered over with product, it was most likely rolled in during the application rather than having fallen on top of the floor. He viewed photos of the floor and stated that it appears typical for an epoxy floor. He said the color is supposed to be varied. Regarding the 2 repaired areas, he said it is not possible to blend repairs with the surrounding color. He acknowledged that it might be possible to make repairs using irregular edges but that it would be very difficult to do this. Mr. Owen looked at Exhibit A and stated that it appeared the debris had been under the epoxy. 7. Jon Kopp, Respondent’s owner and representative, testified that he started doing metallic epoxy 4 to 5 years ago and he is probably one of the top 5 metallic epoxy installers in the world, with thousands of Facebook followers. He said people call him from all over the world and he has a Better Business Bureau rating of A Plus. 8. Mr. Kopp stated that the polyurethane requires 48 hours to cure, not 24 and he did not give Complainant permission to walk on it on Saturday, but Complainant told him, Mr. Kopp, that Complainant had walked in the kitchen. Mr. Kopp stated that it is not possible to patch a metallic floor without the edges of the patch showing. He also stated that uniform coloring is not an appropriate standard for epoxy floors because the non-uniformity is what makes the floor desirable. 9. Mr. Kopp stated that the patch he made at the kitchen sink was done because there had been a footprint there. He said the only thing that could have caused that was either water from the sink (ostensibly mixing with the epoxy before it cured) or someone standing at the sink before it cured. He said he was not at the home overnight so it was not him. He said if the footprint mark had happened because of the product, it would have happened in several places. He also said his crew does not use 5 gallon buckets, they use 3 gallon buckets. After viewing photos of the floor, including an area described as brown (and perhaps less metallic than other areas), he said it looks like it is supposed to look. He said you never know where the colors are going to go and it happens on all of his floors. He said no two square inches are going to be the same. He also said gravity determines which colors will come through on the floors. He offered into evidence Exhibit to show how colors may vary in a metallic floor. He said brush marks are impossible because he uses squeegies, not brushes. He argued that he told Complainant that patches are visible and he did the patches for Complainant even though he did not cause the issues that Complainant wanted corrected. He described Respondent’s attempts to ensure that the floor was clear of debris. He said he did no further corrective work after the Directive from the Registrar because there was nothing to repair; the floor looked the way it was supposed to. 10. Mr. Kopp testified that the windows had been open but he closed them when he did the application. He also said that if Complainant walked on the floor, it would not necessarily show every step, but thicker areas would be more vulnerable to damage. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32- 1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32- 1154(A)(3) and (22) and A.A.C. R4-9-108. 3. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to perform all work in a professional manner and to follow all industry standards and codes. A.A.C. R4-9-108. 4. In determining whether the coloring and evenness of the epoxy met workmanship standards, it is noted that Inspector Cason acknowledged that there are no specific standards set for an epoxy floor. However, the contract between the parties states that there may be a “slight” variation in the distribution of color.[4] One photograph shows a dark or brown square shaped area in the corner of a room where the variation of color is far more than slight.[5] Because it varies from the standard set by Respondent in its own contract, this area should be considered not to meet workmanship standards nor should any area where the variation of color is more than slight. Exhibit A does show debris in the epoxy that is unsightly. However, the contract between the parties places responsibility for keeping the floor clean of debris on the customer (Complainant).[6] Therefore, it would not be appropriate to find a violation for the debris. 5. A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. The two patches in this matter have square edges that make them visible. While it may be difficult to patch epoxy in a manner that is less visible, no reason was given why it had to be patched in a perfect quadrangle, which made it stand out from the rest of the floor. Therefore, Complainant has established a violation of A.R.S. § 32-1154(A)(22). 6. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. As of the issuance of this recommendation, Respondent’s license is in good standing. 7. In this case, the Complainant has established that Respondent violated A.R.S. § 32-1154(A)(3), and (22). RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends to the Registrar of Contractors that, commencing on the effective date of the Order in this matter, Respondent’s license shall be suspended for one day.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, January 4, 2016.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] More specifically, he said he walked on the epoxy, which requires 48 hours to cure, with Mr. Kopp on Friday before the polyurethane was put on it. He said the polyurethane only required 24 hours to cure, which would mean it was cured by some time on Saturday. [2] The Directive from the Registrar did not specify that all the unevenly colored areas should be corrected but Complainant did include this concern in his complaint and the photos submitted with the complaint show areas that are darker than other areas. [3] See Exhibit A. [4] See the electronic file, Intake Complaint Submittal1.pdf at paragraph 4, subparagraph G of the attached contract. [5] See the electronic file, Unsp Formal ComplaintMiscellaneous1.pdf at the 7th photograph from the top (with a sandaled foot showing at the top left). [6] See the electronic file, Intake Complaint Submittal1.pdf at paragraph 3 of the attached contract.

-----------------------

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