ALJDEC decisions subject to certification as final

2017A-2935-CHC-ROC · Registrar of Contractors · 2017-12-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robert W Shew,

COMPLAINANT,

v.

Bio Clean Cleaning and Coatings LLC,

License No. 187280,

RESPONDENT.

No. 2017A-2935-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 4, 2017 at 1:00 p.m.

APPEARANCES: Robert W. Shew (“Mr. Shew” or “Complainant”); Wendi Shew (“Mrs. Shew” witness for Complainant); Ray Aycox (“Mr. Aycox” representative for Bio Clean Cleaning and Coatings LLC (“Respondent”)); Leanna Levine (“Ms. Levine” witness1 for Respondent); Gene Kasnoff (“Mr. Kasnoff” witness2 for Respondent); Jay Graif (“Mr. Graif” attorney for Respondent); and Steve Nelsen (“Investigator Nelsen” Investigator for the Registrar of Contractors (“ROC” or “Registrar”)).

OBSERVERS: Troyee Aycox (“Ms. Aycox” respondent observer1) and Valeria Guy (“Ms. Guy” respondent observer2). Neither party were present in the proceedings but did sign in.

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Registrar of Contractors.

FINDINGS OF FACT

Background and Procedure

Robert W. Shew (“Mr. Shew” or “Complainant”) was building a new residence located at 12533 North Sierra Del Sol, Fountain Hills, Arizona, 85268, and hired Bio Clean Cleaning and Coatings LLC (“Respondent”) to apply Coval Concrete Coating to its concrete surface flooring in lieu of tiles.

On or about June 6, 2017, Complainant filed a complaint with the Registrar against Respondent alleging that Respondent’s poor workmanship is causing the floor to scratch easily to what was “supposed to be highly scratch resistant,” at Complainant’s residential property in Fountain Hills, Arizona.

According to the Arizona Registrar of Contractor’s public website, on or about July 22, 2003, the Registrar issued License No. CR-5.187280-D for garage floor coatings to Respondent. Respondent’s qualifying party/officer is Ray McKinley Aycox. The address of record is 7855 East Portobello Avenue, Mesa, Arizona 85212-1537. No prior discipline is reported.

The Complainant’s complaint indicated Respondent started work sometime in June 2016, and completed its work on November 23, 2016. Complainant stated he paid $16,193.75 to Respondent.

The complaint was assigned to ROC Investigator Nelsen and a copy of the Complaint sent to Respondent on June 8, 2017, at its address of record.

On June 12, 2017, Respondent replied to the Complaint by stating,

“In response to the complaint filed by the Shew residence. All work was performed in accordance with the manufacturers specifications. the floor was ground to 200 grit, stained and one coat of Coval Concrete coating Applied at the recommended rate of 400-600 square foot per gallon . After we completed are work the floor was inadvertently scratched by other contractors in the course of construction. When the shew's did not like that you could see the repairs we suggested maybe waxing the floors, so they could have a renewable surface. We did a sample of wax in the master closet under the island. this sample was approved by Mr Shew. At no charge BC Coatings applied the wax. All repairs were approved by Mr Shew and the contractor. BC Coating did not suggest or recommend Coval Coatings Mr shew told us that was the coating he wanted.

I have attached the spec sheet, the invoice for the materials and a recording of the manufactures Representative and myself.”

Investigator Nelsen performed a jobsite inspection with advance notice to both parties on June 14, 2017. Mr. and Mrs. Shew for Complainant and Ray Aycox and Cori Qui for Respondent were present at the jobsite inspection. Investigator Nelsen combined the items listed on Complainant’s Complaint form jobsite inspection notes, in relevant part, as follows:

Complaint Item 1: Concrete by bar end was patched instead of removed/repoured and looks horrible.

Investigator Nelsen found the work to be performed within workmanship standards and noted N/A as governing rule.

Complaint Item 2: Coval coating was supposed to be highly scratch resistant. It scratches easy. The floor was supposed to be “dog proof” but instead scratches easily with dog nails.

Investigator’s Observation: There is scratching noted throughout the house, seep pics 5, 7 and 8. The product is a 10 on the Mohs scale and dogs nails are approx. 2.5. The scratches do not remove when I try and rub them or apply moisture. The scratching may be in the wax, but the R stated that there were scratches prior to placing the floor covering. The Respondent accepted the surface when he applied the product and is therefore responsible.

Governing Rule: Workmanship Rule 32-1154A3

Complaint Item 3: Cohills final finish was applied on top of Coval coat to hide scratches. The new coat scratches even worse.

Investigator’s Observation: The Respondent applied the wax to provide a sacrificial surface on the floor that can be continually cleaned/buffed. This is not recommended by the manufacturer or Coval and thus should be removed appropriately.

Governing Rule: Workmanship Rule ARS 32-1154A3

Complaint Item 4: The edges where the concrete floor meets tile/stairs looks really bad and is unacceptable.

Investigator Nelsen noted the grout itself (not Coval Coating) appears to be cracking and separating from the floor, and stated N/A as the governing rule.

On June 20, 2017, Investigator Nelsen issued a Directive that required Respondent to correct by appropriate means: (1) determine cause of poor floor performance (easily scratches) and correct by appropriate means; and (2) Cohills final finish was applied on top of the Coval coat to hide scratches. The new coat scratches even worse. (Correct by appropriate means).

On July 19, 2017, ROC Investigator Nelsen performed a Compliance Inspection and noted the Complainant was present and Respondent was not present, and provided in his general notes that “I have not received any correspondence from the R at any point during the CWO time period. I am recommending citations for A3 and A22 and referring to legal.”

On July 20, 2017, the Registrar issued a Citation against Respondent’s licenses, charging cause to revoke, suspend, or otherwise discipline the licenses under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22).

On August 2, 2017, Respondent timely filed its written answer to the Citation asserting certain defenses, including the following: “removed the final finish wax as directed by the ROC for directive #2 with prejudice. As the client Bob Shew approved a wax sample before work was performed, GMK construction was present at this meeting and neither GMK nor the Shews were charged for this service. The work was performed over a three day period ending at about 1:00 pm on July 12. All furniture was removed or moved to allow access to the entire floor so that the floor could be strip of all was. All walls were paper and taped off as to not splash water, wax remover, or debris on to wall.”

Respondent further stated in its Response to the Citation Directive 2, that “it has been in contact with the supplier of Coval products John Miller of Quantum Coatings and Kenny Cardelli, formally of wholesale floors. Kenny and Wholesale Floors are who originally suggested the Coval product to the Shew’s. I have also talked to Mark Hodgson a certified applicator for Coval coatings. Mark also helped develop some of the products for Coval. . . . and that the Directive stated to ‘determine cause of poor floor performance’ and asserts that the floor is performing as well as other floors with Coval coatings and that there is no poor performance on the floor. The Shews run a commercial dog boarding business from their home and although dog nails may not be as hard on the Mohs scale as the Coval the nails and paws pick up small stones from outside. Couple that with stones from shoes and other debris tracked in and you will get scratches”

A Notice of Hearing was sent out and an evidentiary hearing was held on December 4, 2017. Complainant testified on his own behalf and submitted 12 exhibits. Respondent was represented by Counsel and submitted nine exhibits. Both parties presented evidence and testimony. Investigator Nelsen also testified.

Hearing Evidence

Complainant testified he hired Respondent and that Respondent performed work that did not meet ROC minimum workmanship standards and did not successfully meet the corrective directive of the ROC. Mr. Shew further asserted that the poor workmanship was attributed to Respondent not following the manufacturer’s data sheet. However, nowhere on the Data Sheet did the manufacturer expressly state that the Coval Molecular Coatings is “scratch resistant.” Complainant also stated that initially they were going to place tile in their new build but that the supplier suggested the application of concrete coating.

Complainant testified that Coval Concrete Coating is rated 7 to 7.5 with 10 being the hardest on the Mohs Hardness Scale as sourced from Coval.

Complainant provided communications between Michael Cain of Safeguard Services who stated that “unsealed or porous concrete, you need to apply a sealer first such as Coval Quick Seal & Enhancer to prevent the concrete service from absorbing too much of the Coval Coat rendering it ineffective”. This letter appears to reaffirm the Coval Molecular Coating Data Sheet as found under Pre-sealing Required on unsealed/porous concrete. However, the Data Sheet states “such as” which is a suggestion and not a must.

Complainant also provided a list of commercial projects and photo where Coval products were used as well as photos taken of his residence. However, this Tribunal relies on the ROC Investigator’s photos obtained during its jobsite and compliance inspections.

Respondent credibly testified and provided a transcript and recording of a telephone conversation with Jon Miller. As Respondent stated in its written response to the Citation, Mr. Miller is a supplier of Coval products at Quantum Coatings. Respondent testified that he consulted with Mr. Miller prior to performing the work on Complainant’s residence, and reaffirmed that he sought the opinion of experienced and trained persons of Coval Products who advised that “if you’re tinting it, then that’s basically a good seal, and within scope of the product.”

Respondent also provided a transcript and recording of a telephone conversation with Mark Hodgson who is a certified applicator for Coval coatings and also helped develop some of the products for Coval. Mr. Hodgson was questioned as to the scratch resistance of the Coval Product. Mr. Hodgson stated that Respondent could talk with the owner of Coval, and that “there is no such thing – we never say nothing will scratch. Because everything will scratch. . . . Even diamonds will scratch”. The parties also discussed the various rocks common to the Arizona landscape which includes silica or quartz, and a 6 and 1⁄2 or a 7 on the Mohs scale, which is the same as what’s in that coating. He further stated that, if you have something hard enough, it will scratch, just like anything else.

The parties provided two (2) Coval Molecular Coatings Data Sheets as exhibits at hearing. Complainant’s Data Sheet labeled as Version 2, 4-12-12 did not include any warranty information. Whereas, Respondent’s copy labeled as Version 4d, 8-26-13, which was exactly the same as Complainant’s copy but also included the following language:

Limited 10 Year Warranty

Coval Molecular Coatings, Inc. guarantees Coval Concrete Coat to be defect free from date of purchase for 10 years and any material that is proven to be defective will be replaced in a like quantity by the manufacturer with proof of purchase receipt, and provided it has been applied according to the instructions on container and any data sheet along with other related guidelines posted at covalmolecular.com. This warranty only extends to the owner of the property upon which the product is applied and is non-transferable. Seller will replace product 100% of full value for the first 3 years then prorated for the remaining 7 years. Warranty does not cover wear and tear only manufacturers defects. Any warranty claim must be made in writing and sent to seller with supporting materials and access to the property for inspection and testing as requested by seller. Seller will thereafter provide replacement product for product found to be defective. This warranty is given in lieu of all other warranties, express or implied, including any warranty of merchantability or fitness for a particular purpose. The remedy stated herein is an exclusive remedy and seller shall not be responsible for any other damages, including labor or any incidental, consequential, special or punitive damages, whether based on breach of express or implied warrant, negligence, strict liability or other legal theory.

Complainant was asked whether he notified the manufacturer or filed a customer complainant with the manufacturer to which he stated no.

Complainant was also asked if he is using Coval Step #3 Safe Clean as the cleaning agent listed on the Data Sheet by the manufacturer as to the Care and Maintenance of the floor to which he disavowed.

Investigator Nelsen credibly testified as to the ROC’s investigator’s involvement in the complaint process and consistently stated his findings from the Jobsite Inspection and Compliance Inspections.

In closing, Complainant reasserts that Respondent did not follow common industry standards and that the floor needs to be either re-grind and reapply the Coval Concrete Coat properly, or grind the floor to 80 grit or lower to prepare for installing tile over the concrete floor.

Respondent asserts that Complainant accepted the concrete coating as satisfactory upon completion and that Respondent did perform a courtesy correction for customer upon notice that damage was done by one of the homeowner’s other hired contractor’s. This courtesy work performed was not as a basis of wrongdoing. Therefore, it asks that the complaint be dismissed.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1154(A).

Complainant bears 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).

Respondent is cited for two (2) alleged violations: 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).

“Statutes shall be liberally construed to effect their objects and to promote justice.”

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

Complainant attempted to persuade this Tribunal by inferences that Respondent caused the complained of scratches by misapplying the coating which further lead to the surface being easily scratched and it provided assurances of scratch resistance yet the evidence weighed more favorably towards Respondent.

This Tribunal finds that Mr. Shew accepted the flooring as satisfactory upon completion and that evidence was received that it was Complainant’s workers who caused scratches to the flooring after Respondent completed the work.

Complainant alleges that Respondent provided assurances that the floor was scratch resistant. However, testimony was received that it was Complainant who decided to have Respondent apply the Coval product and that Respondent sought expert instructions prior to its application, and upon that expert’s advice, the concrete after tinting was not left unsealed or porous upon the tinting application so no Coval Quick Seal & Enhance was required.

Complainant was also unable to provide any expressed terms of evidence in writing or by any other means that Coval products guarantees it is scratch resistant. In fact, the Tribunal finds it was Respondent who provided evidence from a certified applicator for Coval coatings and who is also one of Coval’s product developers that the coating is not scratch resistant. Respondent provided evidence that verified that not even a diamond with a 10 Mohs scale rating, the highest rating on the Mohs scale, is scratch resistant. Therefore, Complainant failed to demonstrate by the preponderance evidence that Bio Clean Cleaning and Coatings LLC violated Ariz. Rev. Stat. section 32-1154(A)(3).

Respondent in its Response to the Citation stated they did perform work in response to Directive No. 1 between the time frame of the Directive being issued and before the completion deadline. Respondent provided by way of exhibits their attempts to find the cause of the scratching by contacting experts knowledgeable about Coval products to provide further guidance on the question on determining the cause of the scratching. Because it was found that Coval does not guarantee or provide assurances their product is scratch resistant, this Tribunal finds the cause to not be a workmanship issue and that Respondent acted appropriately within the allocated time to perform the Directives issued by the Registrar. Therefore, Complainant failed to meet its burden by the preponderance of the evidence that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22),

RECOMMENDED ORDER

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the complaints in this matter be dismissed in their entirety.

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, December 26, 2017.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors