ALJDEC decisions subject to certification as final

2019A-02220-CHC-ROC · Registrar of Contractors · 2019-10-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 9, 2019, with the record held open until September 16, 2019. APPEARANCES: Complainant Katherine Herrera appeared on her own behalf. Edgar Verduzco, Qualifying Party, appeared on behalf of Respondent Sun Valley Floor Specialists LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Sun Valley Floor Specialists LLC (Respondent) is the holder of License No. 293065 issued by the Arizona Registrar of Contractors (Registrar). On or about January 31, 2018, Katherine Herrera (Complainant) received a job proposal from Respondent to redo her concrete flooring for a total contract price of $11,966.00. Specifically, the job proposal detailed the job as follows: Concrete Surface Grinding to remove all seal and chips popping up Since there was a reaction on the floor do to the acid stain and concrete We will recommend concrete Surface grinding to remove all seal and places Were its coming off. Then neutralize whatever is happening in that concrete Ammonia. Let the floor dry 24hrs to 48hrs. Concrete Overlay Apply 3 coats of concrete on top of existing concrete after its properly prep and Neutralize. Very important to make sure we don’t have future problems. Apply any stain customer Choices. Seal with Acrylic Seal to make sure no dog scratches happen or damage to the New floor.

All errors in original. On or about February 1, 2018, Complainant received a second job proposal from Respondent to redo her concrete flooring for a total contract price of $8898.39. Specifically, the job proposal detailed the job as follows: Concrete Surface sanding to remove all seal and chips popping up Since there was a reaction on the floor do to the acid stain and concrete Sanding the floor and washing it with ammonia is a good way to go. Then neutralize whatever its happening in that concrete Ammonia. Let the floor dry 24hrs to 48hrs. Concrete Overlay Apply 3 coats of concrete on top of existing concrete after its properly prep and Neutralize. Very important to make sure we don’t have future problems. Apply any stain customer Choices. Seal with Acrylic Seal to make sure no dog scratches happen or damage to the New floor.

All errors in original.

Neither proposal mentioned any pre-existing conditions that would cause Respondent’s work to fail. Complainant opted to accept the second job proposal. No formal contract was signed by the parties and the job proposals provided by Respondent did not included the date of the contract, an estimated date of completion, or an advisement that Complainant had the right to file a complaint with the Registrar if she was unsatisfied with the work performed. With each proposal was a concrete warranty and customer information sheet with “Sun Valley Floor Specialists” on the top of the page, but without Respondent’s ROC license number identified. On or about April 30, 2019, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator John Smith. On June 14, 2018, Investigator Smith conducted a jobsite inspection. At that time, Investigator Smith observed “numerous areas of chips in the flooring.” Investigator Smith stated that “[t]he chips start as bubbles below the surface, then they pop open leaving a divot in the floor.” Investigator Smith noted that Respondent referred to the areas as “bug holes.” After the jobsite inspection, Investigator Smith 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 June 24, 2019.

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

Complaint Item 1: “Concrete overlay failing.”

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

On or about July 10, 2019, after the deadline in the written directive, Investigator Smith conducted a compliance jobsite inspection. At the compliance jobsite inspection, Investigator Smith observed that some repair work had been completed, but there were still bubbles in the flooring. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32- 1154(A)(12), namely A.R.S. § 32-1124(B); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22). Investigator Smith testified at hearing that the proposals offered grinding or sanding, but neither gave any indication that there may be poor results. Investigator Smith also explained the Registrar’s policy that, absent a specific waiver by the homeowner, a contractor accepts the surface upon which it performs work. Investigator Smith also testified that he conducted a prehearing inspection on September 6, 2019, and at that time, he observed even more bubbles. Complainant testified that the spots on the floor were still appearing at the time of the hearing and that she just wanted to move on from this. Edgar Verduzco, Qualifying Party, testified that Respondent did everything per the instructions for the materials used. Mr. Verduzco stated that the moisture check was negative, so Respondent did not believe there would be any problem with the project. Mr. Verduzco asserted that Respondent’s floor was not failing, but the subfloor was failing. Administrative notice is taken of Respondent’s prior License record on October 7, 2019. Such prior License record reflects that Respondent’s License No. 293065 was first issued on June 26, 2014, and is current. Such prior License record also reflects that there were no other open complaints or prior complaints against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. 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). 3. As a general principle in construction, a contractor who performs work on top of a surface prepared by another accepts the surface. The contractor should have inspected the surface for any flaws or defects that would affect the work he proposes before performing the work. If he found the surface to be unacceptable, he should have called any defects to the owner’s attention so that the owner can choose whether to pay for the defective surface to be corrected or if the owner is not willing to pay to correct the surface, the subsequent contractor may obtain an explicit warranty disclaimer.[1] 4. Whether the issue with the concrete overlay was the result of the subfloor or of Respondent’s application of the material, Respondent was responsible for the defects results. The evidence established that Respondent’s work was not 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.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[2] 5. The evidence established that Respondent did not attempt to complete the corrective work following the 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).[3] 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. 293065 for a period of three days. 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, October 7, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] No Arizona authority addresses the Registrar’s policy that a subsequent contractor who accepts an existing surface also accepts full responsibility for the outcome. The policy is supported by case law from other jurisdictions. See generally cases cited at “Duty of Contractor to Warn Owner of Defects in Subsurface Conditions,” 73 A.L.R.3d 1213 (1976). 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). The principle is based on common sense and a need for fair dealings between contractors and property owners:

For the requirements of public order and the obligation implicit in every contract that the work will be done in a good and workmanlike manner would compel us to reject a contention that an undertaker is not responsible for building upon a site which he knows to be defective. In such a case, the barest standards of care would require him to bring the defect to the attention of the owner before proceeding. The owner would then have an opportunity to make the indicated adjustment in the contract to provide against the defective soil condition of which he had no prior knowledge. . . .

Wurst v. Pruyn, 202 So. 2d 268, 271-72 (La. 1967) (citation omitted). [2] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [3] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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