ALJDEC decisions subject to certification as final

2017A-5700-CHC-ROC · Registrar of Contractors · 2018-04-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joe Kertesz,

COMPLAINANT,

v.

Just Floors LLC,

License No: 287670

RESPONDENT.

No. 2017A-5700-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 26, 2018

APPEARANCES: Joe Kertesz , Complainant, Hiram Frausto, Respondent, Vincent Ferranti, Respondent’s expert; Steve Nelsen, ROC Investigator

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

Respondent. (Respondent) is the holder of License No. 287670 issued by the Arizona Registrar of Contractors (Registrar).

On or about March 28, 2017, Joe Kertesz (Complainant) entered into a contract with Just Floors LLC (Respondent) to install 1,200 square feet of bamboo wood flooring purchased by the Complainant from Lumber Liquidators. .

On or about November 14, 2017, the Registrar received a Complaint against Respondent from Complainant alleging Respondent performed poor work.

The Registrar assigned the complaint to ROC Investigator Steve Nelsen.

On or about December 21, 2017, after a jobsite inspection, Investigator Steve Nelsen issued a written directive to Respondent that provided a corrective work order [the ”CWO”] with a compliance date of January 12, 2018, as follows:

You are hereby directed to remedy the following violations by the appropriate means: 1,200 SF of bamboo flooring installed by Just FLoors LLC. Floor is warping, cupped and bowed (curls and buckling).

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 CWO, on January 16, 2018, Mr. Nelson conferred with the Complainant who advised that the 1,200 square feet of bamboo flooring had not been replaced, per the CWO.

On January 16, 2018, the Registrar issued a citation against Respondent, charging possible violations 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 charging a violation of A.R.S. § 32-1154(A)(22)

Respondent filed its answer January 14, 2017 asserting Complainant’s failure to maintain the installed product according to the manufacture’s specifications pertaining to moisture content and relative humidity is the cause of the Complainant’s cupping and buckling floor, not poor Respondent workmanship and the answer also asserts the Complainant refuses to allow access and refuses to allow Respondent to re-install the flooring Complainant ordered as is required by the CWO.

A hearing was held on March 26, 2018 to determine the merits of the citation.

Investigator Nelson testified that at his formal jobsite inspection on December 11, 2017, he met both the Complainant and Respondent at the job site. His job site notes indicate that hardwood floors should be installed according to manufacturer recommendation. He testified that the floor manufacturer recommends the bamboo flooring location must maintain specific climate control: temperature at all time must be between 60o F to 80o F and relative humidity must be maintained at 30% to 50% year round, day and night.

Mr. Nelson obtained his own measurements at the time of the formal site inspection and was able to determine that according to his readings [taken in four different rooms at the Complainant’s home], the living room was at 23.9% relative humidity at 77.8 o F; the playroom was at 23, 9 % relative humidity at 76 o F; the Kitchen was at 21% relative humidity at 77.3 o F and the hallway was 14.2% relative humidity at 77.6 o F.

Mr. Nelson remarked that he noted a “possible deficiency” in workmanship standards because he viewed the bamboo hardwood floor “showed curls, pops or buckles” which he determined was a contractor responsibility. Hence, in the subsequent December 21, 2017 CWO Mr. Nelson directed the respondent to “replace 1,200 square feet of bamboo flooring installed by Just Floors, LLC.” On January 16, 2018, Mr. Nelson conferred with the Complainant who advised that the 1,200 square feet of bamboo flooring had not been replaced, per the CWO.

Complainant’s evidence disclosed that that on or about March 28, 2017, Complainant selected and purchased from Lumber Liquidators located at 8340 E Raintree Drive in Scottsdale, Arizona, a stranded bamboo wood flooring material for Complainant’s home. Lumber Liquidators explained that they had a contracted flooring installer who carried a two year warranty on installation. The Respondent was the wood flooring installation contractor.

Between March 28, 2017 and April 27, 2017, Complainant met with the Respondent Hiram Frausto who advised that that Respondent wanted to make sure the wood was acclimated to the location it was being installed and that that the concrete was sufficiently dry to ensure a good bond. Over this time, Respondent took numerous moisture and humidity readings and on April 28, 2017 the floor installation commenced. On May 4, 2017 Respondent’s installation was finished and the Complainant accepted the work. [See, complaint].

Complainant admits the Respondent has offered to replace his floor with the same product that Complainant had purchased from Lumber Liquidators. The Complainant admitted and was adamant that under no circumstances would he allow the same kind of flooring to be re-installed in his home. He has demanded the Respondent to tear up the existing bamboo wood flooring and replace it with tile. Complainant is unwilling to pay for the costs of labor and new materials to tile his home

Respondent testified that before installation, the flooring was placed in the Respondent’s home to acclimate the wood to its intended installation location. Respondent stated that for the next two months Respondent took numerous moisture readings in the presence of the Complainant. Respondent stated he did not, and that he told the Complainant that he would not, install the flooring until the moisture readings indicated that the moisture content of the floor met manufacture standards for installation.

Respondent testified that he has several times asked the Complainant to allow Respondent access to re-install the same product Complainant purchased - exactly as the CWO directed. But, Respondent testified, Complainant refuses to allow Respondent access to Complainant’s home to re-install the bamboo wood flooring because the Complainant no longer wants the same product installed. Instead, Complainant demands the Respondent tear-up and dispose of the bamboo flooring and install a tile surface on the floor instead. Respondent confirmed that the Complainant is not willing to pay for the labor or additional materials to install the tile Complainant now desires.

Respondent called Vincent Ferranti, a Certified Wood Flooring Inspector of the National Wood Flooring Association as an expert in the installation of wood floors and the technology of wood floor coverings. Mr. Ferranti observed that for over 6 months in this home the average relative humidity ws less than half the recommended manufacture level. He stated that with many floors, and in particular bamboo flooring, the home must necessarily have a central humidifier installed and properly operating.

Mr. Ferranti testified that with very low levels of relative humidity observed in this case, most certainly bamboo wood floors will buckle, cup and display other distortions. He noted that the Complainant does not have a central humidifier installed and that low or fluctuating relative humidity is the agent that has caused this floor to present with defects - not installation failures or workmanship. He noted that when the floor was completed, the owner [Complainant] accepted the installation and it was not until months later, with the owner failing to maintain the required manufacture climate specifications, did the floor succumb to Arizona’s extreme dryness with buckles, cupping and other distortion. . It was his opinion that bamboo floors should not be sold for use in Southern Arizona’s climate. It is too dry for bamboo floors in such climates.

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 violation 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).

As to the issue of poor workmanship, the evidence established by a preponderance, that the bamboo flooring in this case was selected and purchased by the Complainant, not the Respondent. The Respondent made no recommendations to the Complainant regarding what flooring would be appropriate for installation in Complainant’s home. Product selection was completely done by the Complainant. Without a properly working central humidifier installed in the home, the product selected and purchased by the Complainant is not recommended for use in lower Arizona’s extremely dry climate. The preponderance of the evidence showed the Complainant failed to maintain the relative humidity at his home at the required manufacture specifications for relative humidity. Extreme low humidity is the agent that caused the bamboo flooring to deform after the flooring was properly installed.

The Complainant failed to meet its burden to prove, by a preponderance of the evidence, that the Respondent violated Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).

Arguendo, even if Respondent were have been found to have violated Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3) [Respondent is specifically found herein not to have violated Rule 4-9-108], the Complainant has failed to establish by a preponderance that Respondent violated A.R.S. § 32-1154(A)(22).because the Complainant has and continues to deny Respondent any access to Complainant’s premises by the Complainant’s steadfast refusal to permit Respondent to re-install the bamboo wood flooring required by the Registrar’s CWO.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of this Order the Registrar shall dismiss the citation and then close this case.

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, April 6, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Done this day, April 9, 2018

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By: ______________