ALJDEC decisions subject to certification as final
2017A-376-CHC-ROC · Registrar of Contractors · 2017-08-04
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Mike Foster Custom Homes, Inc.,
COMPLAINANT,
v.
Custom Hardwood Floors, Inc.,
License No: 053437 and 073428
RESPONDENT.
No. 2017A-376-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 17, 2017
APPEARANCES: Mike Foster appeared on behalf of Complainant Mike Foster Custom Homes, Inc. John Wilenchik, Esq. appeared on behalf of Respondent Custom Hardwood Floors, Inc.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On May 23, 2017, the Registrar of Contractors (“Registrar”) issued a Notice of Hearing setting the above-captioned matter for hearing on July 17, 2017, at the Office of Administrative Hearings.
Respondent Custom Hardwood Floors, Inc. (“Custom Hardwood”), holds license numbers 053437 and 073428 issued by the Registrar
The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
Through the Citation, the Registrar alleges that Custom Hardwood may have violated A.A.C. R4-9-108, and thereby Ariz. Rev. Stat. sections 32-1154(A)(3); and Ariz. Rev. Stat. sections 32-1154(A)(22).
The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Custom Hardwood’s license.
In the summer of 2016, Mike Foster Custom Homes entered into a contract with Custom Hardwood in which Custom Hardwood agreed to apply a coat of Provenza oil to the wood floor of a home constructed by Mike Foster Custom Homes.
Custom Hardwood applied a coat of oil to the home.
A few days after the fresh coat was applied, Custom Hardwood was
informed that there were visible tape marks in the area where the fresh coat of oil was applied.
9. On January 19, 2017, the Registrar received a complaint from Complainant alleging poor workmanship in a construction repair contract.
10. On February 23, 2017, Registrar Investigator Randy Cason conducted an onsite job inspection.
11. On March 9, 2017, Investigator Cason issued a directive. The March 9, 2017 directive provides in relevant part as follows:
You are hereby directed to remedy the following violations by the appropriate means:
Complaint Item 1: “Tape residue on wood floor became visible after was applied” Tape marks are present on the main floor (1st floor) throughout the majority of the finish surface of the wood flooring material and in the kitchen area there are visible marks that appear to be foot prints on the finish surface of the wood flooring material.
Complaint Item 4: “Wax got on the walls and the wood base then they did their work and needs to be removed”
12. In the directive, the Registrar ordered Custom Hardwood to remedy the complaint items by appropriate means no later than March 23, 2017.
13. On March 31, 2017, Investigator Cason conducted a compliance jobsite inspection. Investigator Cason concluded Custom Hardwood was in compliance with complaint item 4. However, Investigator Cason concluded that Custom Hardwood was not in compliance with complaint item 1.
14. On April 21, 2017, the Registrar issued a Citation and Complaint alleging that Custom Hardwood may have violated A.A.C. R4-9-108, and thereby Ariz. Rev. Stat section 32-1154(A)(3); and Ariz. Rev. Stat section 32-1154(22).
15. Custom Hardwood filed a timely answer to the Citation.
16. On May 23, 2017, the Registrar issued a Notice of Hearing setting the above captioned matter for hearing on July 17, 2017 at 1:00 p.m. at the Office of Administrative Hearings in Phoenix, Arizona.
17. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
18. A hearing was held on July 17, 2017.
19. Investigator Cason testified at the hearing.
20. Mike Foster testified on behalf of Mike Foster Custom Homes. Custom Hardwood presented the testimony of Daryn Fritz, the qualifying party for Custom Hardwood, and Jim Briggs the Superintendent for the project in this matter. Custom Hardwood offered one exhibit.
21. Mike Foster testified that the tape marks did not become visible until after the oil finish was applied. Mike Foster stated that the owner of the home never informed him that he had seen any tape marks before Custom Hardwood applied the oil finish. Mike Foster testified that the homeowner noticed scratches in the wood due to people walking on the floors but he did not observe any tape marks on the hardwood floor. Mike Foster stated that he does not know what procedures Custom Hardwood used when it applied the oil. Mike Foster testified that he does not know whose fault it is that the tape marks appeared after the oil was applied.
22. Jim Briggs testified that Mike Foster Custom Homes hired Custom Hardwood to repair the scratches to the hardwood floors. Mr. Briggs testified that repairs scratches in the hardwood are usually accomplished by applying an oil finish. Mr. Briggs testified that the tape marks were caused by Mike Foster Custom Homes’s subcontractor, Aztec Flooring. Mr. Briggs stated that Aztec Flooring installed the hardwood floors and applied tape to the wood to hold the wood together. Mr. Briggs testified that the contractor should not have apply tape to the hardwood floors.
Mr. Briggs testified that after the tape left marks after it was removed.
23. Investigator Cason testified that a contractor accepts the surface as it is once the contractor begins making corrections to the surface. Investigator Cason testified that Custom Hardwood should have inspected the surface and warned the homeowner of the defect.
24. Mr. Fritz testified that he first became aware that there were tape marks on the hardwood floors a few days after his employees applied the oil finish. Mr. Fritz testified that none of his employees observed the tape marks after applying the oil.
25. Custom Hardwood contended that it did not cause the tape marks. Custom Hardwood argued that tape marks did not become visible until after the oil was applied.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to
Ariz. Rev. Stat section 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of Ariz. Rev. Stat section 32-1154.
2. 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).
3. Investigator Cason asserted that Respondent should have inspected the hardwood and warned the homeowner of the existence of tape marks. A contractor who knew or should have known of a defect in the surface does not perform construction in a workmanlike manner if the contractor fails to notify the owner of the defect and the construction later fails due to the defective surface. See, e.g., Parker v. Thornton, 596 So. 2d 854, 858 (Miss. 1992); Lewis v. Anchorage Asphalt Paving Co., 535 P.2d 1188, 1199 (Alaska 1975). However, there was no evidence presented at hearing to establish that Respondent knew or should have known that there were defects in the hardwood floors. It is undisputed that the tape marks were caused by Complainant’s subcontractor who installed the floors. Mike Foster testified that he was unsure whose fault it was that the tape marks became visible after the oil was applied.
4. Complainant failed to establish by a preponderance of the evidence that
Custom Hardwood failed to perform work in a professional and workmanlike manner.
5. Therefore, this Tribunal concludes that the preponderance of the evidence of record fails to support a conclusion that Respondent violated the charged provisions of A.A.C. R4-9-108, and thereby Ariz. Rev. Stat. sections 32-1154(A)(3); and
Ariz. Rev. Stat. sections 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Complainant Mike Foster Custom Homes, Inc.’s complaint in Case No. 2017-376 against Respondent Custom Hardwood Floors, Inc. shall be dismissed.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order is forty days after the date of that certification.
Done this day, August 4, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors