ALJDEC decisions subject to certification as final

2017A-3716-ROC · Registrar of Contractors · 2018-03-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michelle Linden,

COMPLAINANT,

v.

Alro Hardwood Floors Inc ,

License No: 144076

RESPONDENT.

No. 2017A-3716-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 8, 2018, 1:00 P.M.

APPEARANCES: Complainant Michelle Linden appeared on her own behalf; Roger Decker, Esq., appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Alro Hardwood Floors, Inc. (Respondent), is the holder of License Number 144076 issued by the Registrar of Contractors (Registrar).

2. On or about July 20, 2017, Michelle Linden (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work and abandonment in connection with the installation of laminate flooring by Respondent at Complainant’s residence in Phoenix, Arizona. The Complaint reflected the work was completed on July 25, 2015, for the contract amount of $1,086.00.

3. Upon completion of an inspection performed by the Registrar on August 21, 2017, the Registrar issued a Directive, dated August 24, 2017, requiring Respondent to correct alleged deficiencies in Respondent’s work by September 4, 2017. The Registrar extended the deadline to September 8, 2017, at the request of Complainant.

4. Complainant then submitted an addendum to her Complaint, dated September 10, 2017. As a result, the Registrar performed a second inspection on October 13, 2017, and then issued an Amended Directive, dated October 16, 2017, requiring Respondent to correct alleged deficiencies in Respondent’s work by November 1, 2017, as follows:

Complaint Item 1: Gapping between boards

Verified gap between boards which is inconsistent with the rest of the job near the front door.

Complaint Item 2: Gapping in the boards at the front door.

Verified veneer peeling at the front threshold.

Complaint Item 6: Laundry door trim piece missing

Verified trim piece isn’t installed.

Complaint Item 7: Kitchen and family room trim piece missing.

Verified poor corner cut on island floor molding.

Complaint Item 8: Gap at rear door threshold.

Verified the gap.

Complaint Item 9: Several raised corners at plank edges.

Verified corners in several areas lifting

Complaint Item 13: There are many planks with chipped corners due to the multiple slamming of the mallet on the corners.

Verified chips at planks in several areas.

Complaint Item 14: Many planks have ledging, often the planks with raised corners.

Verified lippage or raised edges in several areas.

Complaint Item 22: They disrupted the original way they found the T- molding that butted up to the hall. I need that piece replaced. They did not install the bedroom flooring. This piece will have to be special ordered from another company. They will be held responsible for any damage to the

bedroom floor. I am concerned about damage to the tile in the bedrooms. They will be held responsible for the damage to the tile after the T-molding is removed.

At time of inspection, no deficiency observed or demonstrated.

Respondent shall complete project per original contract agreement,

Complaint Item 27: The workmen did not put the T-molding in the long stretches in the flooring. I have one of them.

I believe the Complainant is referring to expansion joints.

Respondent shall complete project per original contract agreement or manufacturers installation instructions.

4. After being informed that no further corrective work had been performed, the Registrar then issued a Citation to Respondent, dated November 8, 2017, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);

b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for March 8, 2018, at 1:00 P.M. At the hearing, Complainant testified on her own behalf; Andrea McCartney also testified on behalf of Complainant. Alfredo Salas, owner and qualifying party of Respondent, Jacob Taylor, and Todd Boettcher, testified on behalf of Respondent. Steve Klein, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s Exhibit numbers 1 - 30 and Respondent’s Exhibit letters A - L. The Tribunal also took administrative notice of the Registrar’s file.

6. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspections. Specifically, he testified that the remaining items in the Directive had not been corrected.

7. Complainant testified extensively about the work performed by Respondent, issues she had with the work, and her conversations and communications with Respondent. She further testified as the remaining Directive items, but that she had since found the missing trim piece referenced in Complaint Item 6.

8. Complainant presented a Laminate Inspection Report dated December 15, 2015, from Certified Flooring Inspections, Inc. (Complainant’s Exhibit 7), a representative of Shaw Industries, Inc., the laminate manufacturer, which indicated that the floor’s condition was “installation and not manufacturing related.” The report indicated that the flooring issues were caused by lack of t-molding and that planks were chipped due to over-tapping during installation. It further indicated that 30% of the floor had raised edges and a height difference between .018 and .022. The report also reflected that four different lots were used in the flooring.

9. As it relates to the Directive, Alfredo Salas testified on behalf of Respondent that the job was solely for labor for the installation of laminate flooring, the planks for which Complainant had purchased from Home Depot. He stated that Complainant advised him that another company had done the demolition of the flooring and had abandoned the job and the house had been in disarray for a month. He also stated that he did not hear anything from Complainant from the completion of the work in September 2015 to the filing of the Complaint with the Registrar in September 2017.

10. As it relates to the Directive, Todd Boettcher, owner of Scottsdale Flooring America, with 25 years of experience in the industry, testified on behalf of Respondent that he accompanied Alfredo Salas to the Registrar’s inspection on August 21, 2017, but was denied access by Complainant. Although he has never seen the flooring, he testified that delamination of laminate in most cases results from moisture. He stated that from what he could see from photographs, he had no reason to believe the flooring was not installed per industry standards. He also testified that the installation included the appropriate amount of t-molding, and that the lack of t-molding would not cause the issues present with the Complainant’s flooring. He further stated that the planks are interlocking so there is only one way to install them, and that the laminate Inspection Report from the manufacturer reflects that Complainant supplied planks from four different mill lots which would cause a slight lippage.

11. As it relates to the Directive, Jacob Taylor, Sales Manager of Taylor’s Flooring, testified on behalf of Respondent that planks from different mill lots would cause variations in height of the planks and that that it is physically impossible for installation to cause lipping on laminated flooring. He stated that he has seen nothing to suggest the flooring issues result from installation error rather than wear and tear. He further stated that gapping can be caused by installation where the planks are not properly locked, but that it would be immediately noticeable.

12. The evidence regarding Respondent’s attempts to perform corrective work involved two sets of email exchanges between the parties and the Investigator with respect to the Directive of August 24, 2017, and the Amended Directive of October 16, 2017:

Directive (August 24, 2017)

(deadline September 4, 2017 (extended to September 8))

August 29

Respondent asked Complainant whether it could perform repairs on either August 31 or September 1. (Respondent’s Exhibit C).

August 30

Respondent followed up asking Complainant whether it could do the repairs the next day on August 31. (Respondent’s Exhibit C).

Complainant responded she was not available on August 31, and referenced that she had sent an earlier email to Respondent with the days she was available. (Respondent’s Exhibit C).

Respondent responded that it did not receive an email from Complainant with any such dates and asked Complainant to send it again. (Respondent’s Exhibit C).

Complainant responded that she did not have the email because she may have deleted it. (Respondent’s Exhibit C).

Complainant informed Respondent that the only day she was available for repairs was September 8 after 3:00 P.M. and that she would also be unavailable from September 15 into October. (Respondent’s Exhibit C).

Respondent responded that it could also do the repairs September 1, or after September 25. (Respondent’s Exhibit C).

August 31

Respondent indicated to Complainant that it could not start the repairs after 3:00 P.M. on September 8 but would be willing to come to the residence at that time to inspect the floor. (Respondent’s Exhibit C).

Amended Directive (October 16, 2017)

(deadline November 1, 2017)

October 24

Respondent asked Complainant if it could do the corrective work on October 26 or 27. (Respondent’s Exhibit I).

October 26

Respondent again asked Complainant if it could do the corrective work on October 27 or October 30. (Respondent’s Exhibit I).

October 30

Respondent responded that she was unavailable until November 19 but was available November 20, 21, 27, and 28. (Complainant’s Exhibit 16).

November 2

Investigator asked Complainant if she wanted to give Respondent more time to do corrective work or whether the matter should be sent to legal. (Complainant’s Exhibit 17).

November 6

Complainant advised the Investigator that she thought it best to send the matter to legal based on history of what transpired. (Complainant’s Exhibit 17).

13. Complainant also stated in her October 30, 2017, email to Respondent regarding her availability:

I want to know ahead of time what your plans are for the repairs.... What materials will you be using for each of work to be performed?... How do you plan to rectify these problems?... Each time I asked you for a business card you said you did not have one with you. You also did not provide me with a copy of our contract as promised.... Now you can mail me both the contract and the business card....These two things must be in place before you enter my property again.

(Complainant’s Exhibit 22). (emphasis added).

14. Complainant testified she has had an extensive amount of medical appointments for a medical condition and as a result did not have a lot of availability in her schedule and was not available on short notice. She further testified she did not have anyone else that she trusted to be at her home to monitor corrective work to be performed other than her daughter. However, she indicated her daughter was not available.

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. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. 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).

4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following

3. Violation of any rule adopted by the registrar.

...

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 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.

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “A contractor shall perform all work in a professional and workmanlike manner.”

6. Complainant has presented sufficient evidence to establish that some of Respondent’s work was not performed in a professional and workmanlike manner as a potential violation of A.R.S. § 32-1154(A)(3). Specifically, with respect to the Directive items:

Complaint Item 8 – The evidence was sufficient to establish that there was such a gap, which Respondent indicated could be repaired with caulking.

7. Complainant has not presented sufficient evidence to establish that other items of Respondent’s work were not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3): Specifically, with respect to the Directive items:

Complaint Item 1, 2, 9, 13, and 14 – The evidence was insufficient to establish that the items regarding the planks themselves were the result of workmanship issues regarding the installation by Respondent, or were the result of a defect in the product supplied by Complainant, or were attributed to other factors after the installation.

Complaint Item 6, 7 – The evidence was insufficient to establish that the missing trim was the responsibility of Respondent. The evidence reflected that Complainant undertook the responsibility to provide materials.

Complaint Item 22 – The evidence was insufficient to establish that there was any disruption of the molding. The testimony presented by Respondent reflected that the molding was not glued at the instruction of Complainant.

Complaint Item 27 – The evidence was insufficient to establish that t-molding was lacking, or that the lack of t-molding contributed to the other issues related to the flooring. The Tribunal was not persuaded by Complainant’s inspection report which found that the issues were caused by installation, not the product itself. The report was prepared by the manufacturer’s representative, the suppliers of the product, and the Tribunal believes it lacked independence.

8. Complainant has failed to present sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to undertake corrective action without valid justification. There is no dispute that Respondent did not perform corrective work. However, the Tribunal finds that Respondent presented a valid justification for failing to perform corrective work.

9. The Tribunal finds that Complainant’s failure to provide Respondent reasonable access to the residence with regard to the first Directive, dated August 24, 2017, constituted a valid justification for Respondent’s failure to perform corrective work. The evidence presented showed that Complainant only offered Respondent one date, the day of the Directive deadline, and she required the work to begin only after 3:00 P.M.

10. Respondent initiated contact with Complainant on August 29 or earlier to inquire whether Complainant was available on August 31 or September 1 for the repairs. There was no evidence presented of a response. Respondent followed up on August 30 again asking whether it could do the repairs the next day. Complainant indicated she was not available and indicated she had provided available dates to Respondent in an earlier email, an email Respondent indicated it did not receive. Complainant did not present that email into evidence and indicated she likely deleted it. However, even if it was deleted, Complainant provided no explanation as to the reasons she did not offer the same dates again to Respondent that were purportedly included in the deleted email. Further, subsequently offering September 8th at 3:00 P.M., the day of the Directive deadline, as the only date and time for the corrective work is not providing reasonable access.

11. The Tribunal finds that Complainant’s failure to provide Respondent reasonable access to the residence with regard to the Amended Directive, dated October 16, 2017, constituted a valid justification for Respondent’s failure to perform corrective work. The evidence presented showed that Complainant offered no dates for the work to be performed prior to the Directive deadline.

12. Respondent inquired of Complainant on October 24 if corrective work could be done on October 26 or 27. There was no evidence presented of a response. Respondent followed up again on October 26 asking whether it go do the repairs on October 27 or 30. Complainant responded that she was not available until November 19, well after the Directive deadline. Moreover, she indicated she would not allow Respondent to enter the residence unless it provided her with a business card and a copy of the contract. When the Investigator asked her whether she wanted to give Respondent additional time to schedule the corrective work, she recommended instead that the matter be sent to legal.

13. Complainant has not established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3) or A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, that the Citation and Complaint in Case 2017A-3716-ROC shall be dismissed.

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, March 28, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractor