ALJDEC decisions subject to certification as final

2017A-4023-CHC-ROC · Registrar of Contractors · 2018-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mark A. Thomas,

COMPLAINANT,

v.

Creekside Hardwood Floor Supply LLC,

License No: 223566

RESPONDENT.

No. 2017A-4023-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 26, 2018

APPEARANCES: Complainant Mark A. Thomas was represented by David Brooks. Respondent Creekside Hardwood Floor Supply LLC was represented by Robert C. Kozak.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Creekside Hardwood Floor Supply LLC (Respondent) is the holder of License No. 223566 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 13, 2016, Mark A. Thomas (Complainant) signed a contract with Respondent for the complete remodel of his home, including the installation of new flooring.

On or about August 4, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Jim Dimond. After a jobsite inspection, Investigator Dimond issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on October 13th, 2017.

You are hereby directed to remedy the following violations by the appropriate means:

Item 1- (condensed) The flooring has a large amount of filled planks and the filler does not closely match the flooring and is not representative of the sample provided.

The respondent is to correct the condition in an appropriate manner.

Item 2- Several boards have been cut too short and won’t be covered by the base

There are short boards at the master closet and great room.

The respondent is to correct the condition in an appropriate manner.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent did not perform any corrective work. After the deadline in the directive expired, Investigator Dimond was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

Investigator Dimond testified that during his inspection, he observed numerous flooring planks in the field had voids, checks, and cracks filled with a grey epoxy filler. Investigator Dimond stated that he researched the product on the manufacturer’s website. Investigator Dimond indicated that the depictions of the product online did not show any filled voids or cracks like the ones he observed in Complainant’s home. Investigator Dimond also noted that the sample board provided by Complainant was not representative of the flooring that was installed.

Pamela Bastian testified on behalf of Complainant that she was a general contractor in Tennessee prior to moving to Arizona. Ms. Bastian stated that she was very particular about transitions and angles, so she inspected those transitions during the flooring installation. Ms. Bastian denied closely examining the look of the flooring either prior to or during the installation. Ms. Bastian testified that Respondent did not show her any samples of the actual product after it was delivered to the home to obtain her approval. Ms. Bastian stated that the gray filler did not match the floor at all and if she had seen it before it was installed, she never would have approved it.

Paul Harding, Qualifying Party for Respondent, testified that he was onsite during the installation and neither Complainant nor Ms. Bastian expressed any concerns with the flooring during the installation. Mr. Harding acknowledged that the installation instructions for the product provided that the installer should review the control sample and compare it to the actual flooring batch onsite prior to installation to make sure that it met the owner’s expectations as to the grade, color/graining, color variation, color change, and finish. The installation instructions also noted that “[t]he manufacturer cannot be responsible for visual issues once the flooring is installed including wood character, finish style and gloss.” Mr. Harding admitted that Respondent did not comply with the installation instructions in that no one reviewed the actual flooring batch onsite with Complainant. Mr. Harding asserted that Complainant and Ms. Bastian had ample opportunity to examine the flooring prior to the installation.

Debra Pollard, Certified Flooring Inspector retained by the flooring manufacturer, testified that she examined the flooring and determined that the product was intended to be a distressed type wood finish and did not find the product to be abnormal. Ms. Pollard stated that she did not find any manufacturing defects with the floor. Ms. Pollard indicated that she was supposed to look at things from a standing position, but when the issues were pointed out to her and she got down to look at them, she saw the issues being raised.

The photographs of the flooring submitted during the hearing show the fill in the flooring product was a drastically different color than that of the flooring. The fill appeared to be a grayish color while the wood was a dark brown color. It is also noted that in one photograph, the fill appears to be opaque to the point that grid marks on the underlying board are visible through the fill.

Administrative notice is taken of Respondent’s prior License record on March 6, 2018. Such prior License record reflects that Respondent’s License No. 223566 was first issued on August 13, 2006, and is current. Such prior License record also reflects that there were no other open complaints or resolved/settled/withdrawn complaint against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The evidence established that Respondent did not review the actual flooring with Complainant prior to installation as required by the installation instructions. Further, given the number and size of fills in the installed flooring, the installation of the flooring cannot be considered to be in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

No evidence was presented to establish that Respondent attempted to perform any corrective work following the issuance of the written directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 223566 for a period of one day.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, 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 Respondent tenders payment of any outstanding prior civil penalty.

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 will be 40 days from the date of that certification.

Done this day, March 6, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors