ALJDEC decisions subject to certification as final

2016A-4673-CHC-ROC · Registrar of Contractors · 2017-06-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michele Case

COMPLAINANT

-v-

Midwest Elite LLC

License No. 283994

RESPONDENT

No. 2016A-4673-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: Wednesday, June 7, 2017 at 8:30 am

APPEARANCES: Michele Case (“Complainant”); Vincent Ferranti (“Complainant’s Expert Witness”); Tim Berna (“Respondent”); Jamie Wease (“Respondent’s Witness”); and Jack Grimm (“Investigator Grimm” for the Registrar of Contractors “ROC”).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

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 Registrar. The Arizona Rules of Evidence do not apply in these proceedings, therefore any relevant testimony and evidence may be admitted. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

Complainant is the owner/occupant of a residence located at 6826 West Brown Street, Peoria, Arizona 85345.

Respondent is the holder of Arizona Contractor License No. CR-8.283994-D issued by the Registrar. Respondent’s License is current on November 29, 2016.

On or about November 21, 2016, Complainant submitted her Complaint with the Registrar alleging against Respondent three (3) complained of items to include poor workmanship issues.

Complainant purchased Bamboo Flooring on or about September 30, 2014, from Floor and Décor aka Home Service Store in Glendale, Arizona, and was given names of their qualified product installers. Thereafter, on or about November 2014, Respondent was selected and contracted by Complainant to install bamboo flooring in the living room, dining room, family room, hallway and four bedrooms, including adjoining closets. Complainant stated the contract cannot be located but indicated in her complaint that Midwest Elite was to clean cement floor, remove tile entry at front door, remove old baseboard and install the bamboo flooring.

Complainant stated in her Complaint that the bamboo flooring she purchased directly from Floor and Décor is no longer available, and that funds should be reimbursed. Floor and Décor is a separate entity.

Complainant provided a list of payments and submitted various receipts directly related to this installation, to include, bamboo flooring and urethane wood adhesive paid to Floor & Décor of Glendale, Arizona, in the amount of $3,140.81 on 09/30/2014 and $982.79 on 11/09/2014; $113.06 on 10/04/2014 and $53.07 on 11/24/2014 paid to Home Depot; $1,142.50 as labor deposit on 10/28/2014 and $1,142.50 on 11/20/2014 as final labor payment paid to Home Service Store; and $2,481.00 on 12/02/2014 paid to Midwest Elite.

On December 21, 2016, Investigator Grimm performed a Jobsite Inspection of the three (3) item Complaint.

Complaint Item 1: When the family room was complete, I pointed out to Tim that there were a couple of places that were not level. The corner of the plank was sticking up.

Governing Rule: Workmanship Rule: 4-9-108 (A) Flooring not attached to floor in several location.

Complaint Item 2: I reference a spot in the middle of the family room, near the fire place, that just was not connected correctly.

Governing Rule: 4-9-108 (A) poor repairs.

Complaint Item 3: Numerous areas through out the house appeared to be warped and lifted on both edeges [sic] creating a washboard effect. Cupping.

Governing Rule: 4-9-108 (A) floor is lifting and cupping.

Following his inspection, a Directive was issued on March 1, 2017, setting forth the following substantiated violations to be remedied no later than March 17, 2017.

On April 7, 2017, a Citation issued citing the following: 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); and Charge 2: A violation of A.R.S. 32-1154(A)(22) “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 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.”

Respondent submitted its Written Answer to the Citation and Complaint on or about April 17, 2017, stating the complained of issue is with moisture and that testing was done on both flooring and concrete substrate prior to installation and was signed by all parties. Respondent additionally stated that the material purchased by Complainant has been discontinued by retailer due to it being defective.

A Notice of Hearing was sent to the parties on April 19, 2017, that a hearing is scheduled for June 7, 2017, on the charges made in the Citation and Complaint to be held before the Office of Administrative Hearings.

HEARING EVIDENCE

Complainant stated in her Opening Statement that no moisture testing was performed in accordance to industry standards and that the bamboo floor is warped and lifting in numerous areas.

Respondent stated in its Opening Statement that a moisture test was performed and that moisture sealing grip glue was used to install the floor.

INVESTIGATOR GRIMM’S TESTIMONY

Investigator Grimm testified he was assigned to investigate Complainant’s Complaint. He provided a narrative report as to his involvement in the case. He stated that at first there were jurisdiction issues because there were two sets of invoices from Midwest Elite and Home Services.

Investigator Grimm read from his jobsite inspection notes and stated there is no warranty on the product and it is not adhering and is cupping. He provided photos from his jobsite inspection. After his inspection, he issued a Directive directing Respondent to remedy the following: (1) correct areas of flooring were the flooring is not adhered to the subfloor; (2) repair area in family room; and (3) correct all flooring that is cupped or lifted.

COMPLAINANT’S TESTIMONY

Complainant testified that she contracted with installer for labor only and that she purchased materials from Floor and Décor to include the adhesive glue. Floor and Décor provided her with a few references of laborers who do installs and she selected Respondent Laborer. She testified that the installation took about a week or two.

Complainant testified she later attempted to purchase replacement boards from Floor and Décor and was told they have discontinued this product and that in order to obtain the last of what they had in stock, she would need to sign a Customer Waiver that the Customer acknowledges that the product has a “potential tongue issue that prevents floating installation and that the product is being sold “as is” and without any warranty of any kind. Glue down application must be used with moisture-cured urethane per glue manufacturer’s installation instructions. All sales are final. No returns or exchanges will be permitted.”

Complainant testified that Respondent was prompt in returning calls, and that she researched the product prior to purchasing and found no reports of buckle with a 45-50 life span.

COMPLAINANT’S EXPERT WITNESS

Complainant’s Expert testified he is a member of the National Certified Wood Flooring Associations (NWFA) since January 2005. He stated that Complainant purchased the product from retailer Floor and Décor.

He asserted that proper moisture testing was not performed. He testified that testing requirements are 40 planks every 1000 SF. He referred to the Moisture Guidelines Testing and Vapor Retarders set forth on of page 4 of 7 of his Inspection Report.

He stated that applicable field testing for environmental site conditions include the use of equipment such as a Tramex and that moisture mitigation of concreted involves application of a like adhesive.

Complainant’s Witness referenced page 5 of 7 of his Inspection Report, specifically, as it pertains to cupping and causes of cupping. The report stated, “cause: a moisture differential within individual pieces of flooring, usually excessive moisture on the underside of the flooring. More subtle cupping can be caused by lack of proper acclimation (this is generally Permanent cupping). Potential Sources of excessive moisture include: “building leaks, poor drainage, plumbing leaks or overflows, leaks from dishwashers or refrigerator ice-making unites, wet or damp basements/crawl spaced, concrete subfloors that have not cured, plywood subfloors with excessive moisture, poor or no ventilation, solid flooring may also cup when a wood floor experiences condition that cause rapid drying on the surface. This condition occurs with gaps as the flooring shrinks.”

He further referenced page 3 of 7 in his Inspection Report, wherein it stated, “Notes: While the accuracy of meter testing on bamboo is controversial, it is good for comparative purposes. Due to the resin content and harness of this type of flooring pin meters are not recommended.”

RESPONDENT

Respondent was asked what adhesive it used, to which it replied, “Roberts” and that they purchased sealing grip throughout the installation.

Respondent further explained that Home Service Store is an umbrella entity operating under Floor and Décor.

Respondent acknowledge there is a moisture issue and that he believes the Complainant also had their shower redone. Photos of the flooring in the living room were provided. Complainant asked Respondent about the type of glue used and he stated the sealing within moisture bearer is within that product.

Respondent stated that when seeking remedies aligned with the directive, mold and the smell of mildew were found. Photos were provided from both the 04/21/2017 testing the moisture level in the living room as well as photos from 04/25/2017 of three (3) boards being pulled up that appear to have calcium build up from moisture. Respondent sent samples to Taylor Tools to analyze the calcium chloride moisture test plots and the results were:

Plot # Change in weight grams test duration hrs result lbs moisture

Test Plot #1 9.7 71.57 14.74

Test Plot #22 10.2 71.48 15.52

Respondent stated the wood initially selected by Complainant has since been discontinued. Options to remedy would be to use tile but further testing would be needed to determine throughout the house as to cupping and if there is a moisture leak.

Respondent credibly testified that Bostick sealing was used as adhesion. The moisture test & 25% completion checklist was provided as signed by Complainant and Respondent to the approval of materials and installation methods at 25% completion. The checklist included subfloor a moisture reading of 2.7% and new floor (should be 6% - 12%) moisture readings at 8%. This document was signed on 11/20/2014. The checklist reflects “glue” as installation method. And that a Vapor Barrier is being installed. The Moisture Test was perform on 11/10/2014 with a Tramex meter. The checklist Notes: average moisture reading must be < 12%. . . . “for all bamboo flooring the difference may not exceed: 4% on all widths.”

CLOSING ARGUMENTS

Complainant asserts that without testing no proof not a moisture problem, and referenced her Witness Expert’s Inspection Report on page 7, titled, “Documented testing” wherein it stated “without documentation there is no verification the flooring was installed within the manufacturer’s and/or industry requirements. No documentation of moisture reading were provided to homeowner at completion of the installation for their records.

Respondent asserts they performed all testing to industry standards, and installed flooring properly. He asserts there is a moisture leak somewhere and this is due to other sources as he smells mildew, combined with a defective product, that it should not be liable.

CONCLUSIONS OF LAW

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.

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).

Credible testimony established Respondent performed substandard work, specifically, by failing to obtain three (3) test for the first 1,000 SF plus 1 more for each additional 1,000 SF during installation. The checklist provided at the hearing show the results of only one moisture reading. Thus, Complainant established Respondent’s work on the items specified in the Directive to be in violation of minimum workmanlike manner, specifically A.A.C. R4-9-108 and thereby of A.R.S. § 32-1154(A)(3).

An A.R.S. § 32-1154(A)(22) violation is not substantiate since evidence and testimony provided that Respondent has been responsive and continues to put forth reasonable efforts to obtain remedial measures. However, due to the recent moisture findings and discontinuation of the bamboo wood having been found defective by retailer, the Respondent continues to work with Complainant to obtain proper corrective action, this Tribunal finds these reasons to be valid justification for the delay in remedying the issue as set forth under the Directive.

The preponderance of the evidence established that Respondent performed poor workmanship; specifically, its failure to obtain three (3) samples prior to installing the floor as noted on the Moisture Test & 25% Completion Checklist signed by the parties on 11/20/2014.

This Tribunal further notes that Floor and Décor aka Home Service Store provided the bamboo flooring and flooring adhesive products and later admitted the product was defective. While it was stated in Complainant’s Expert Report, page 7, that the laborer bears the responsibility and that installation constitutes acceptance in that it is the installer’s responsibility to be proficient and knowledgeable in all aspects of installation, such appears true when the Respondent relies on the use of non-defective products. For this reason, this Tribunal questions how the retailer, namely, Floor and Décor aka Home Services does not bear any liability for providing what appears to be defective materials to Complainant for Respondent’s use in its installation of her home.

The Tribunal concludes that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108.

RECOMMENDed order

Based on the foregoing, it is recommended that on the effective date of the Order, Respondent’s License No.: CR-8.283994-D shall pay the sum of $150.00 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, June 27, 2017.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors