ALJDEC decisions subject to certification as final

2021A-00217-CHC-ROC · Registrar of Contractors · 2021-12-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Areic E. Bailey,

COMPLAINANT

Walk On Wood, Inc.

License No. ROC 217361,

RESPONDENT

No. 2021A-00217-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 9, 2021

APPEARANCES: Complainant Areic Bailey appeared on his own behalf. Joel Fornara, Esq. represented Respondent Walk On Wood, Inc. Roger Pride, Jack Jennings, and Nathan Artlip appeared as witnesses for Respondent Walk On Wood, Inc. Arizona Registrar of Contractors Investigator Jim Dimond appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Walk On Wood, Inc. (“Respondent”) is the holder of License No. 217361 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about June 18, 2020, Areic Bailey (“Complainant”) contracted with Respondent for the installation of wood flooring throughout his residence. The flooring was installed on all three levels and encompassed approximately three thousand square feet.

On or about January 17, 2021, the Arizona Registrar of Contractors (“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 February 1, 2021 jobsite inspection, Investigator Dimond issued a February 10, 2021 Written Directive to Respondent that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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. You must notify

the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on March 11, 2021.

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

Compliance Item: 1 - Floor was laid incorrectly overall. Poorly and quickly

laid with the Sub contractor (Nathan) yelling at employees to finish job quick

on all visits. They openly talked about under-bidding the job. One employee

walked off the job 1/2 day in because they were arguing that the floor could not be laid properly in the time Walk on Wood was pushing them to meet. We have a Ring security system and have audio recordings of these conversations. If legal intervention is needed I can make these available with. Roger spent less than 10 minutes in my home after he got deposit. He inspected no work, and took 2-3 picture from a distance, collected balance and drove off

Investigator’s Observation: There are several sections of this floor that

are clustered with smaller pieces, some of which are cuts, resulting in a lack of a bevel on the cut end.

In numerous areas, the lap between planks is smaller than the manufacturer

installation guidelines call for.

The lap between planks is to be no less than 6". The laps that exist range from 2" to 4".

The manufacturer guidelines are silent regarding the use of cut pieces in the field.

Cut pieces are recommended to be used at the walls.

I did confirm with the flooring manufacturer that the boxes to come with varying lengths starting at 750mm (29.5") to 4'. Each box will have 4 pieces

that are 4' or longer.

Every third box is to have one 7' piece. I noted no pieces that long.

I did note numerous pieces that were in the field and were less than 29.5" meaning they were likely cut.

The remainder of the allegation is not relevant to the process and is not actionable.

The respondent is to correct the improper laps and improper clustering of short pieces in an appropriate manner.

Compliance Item: 2 - Stairs were not laid properly. Multiple small boards

instead of longer single boards, stairs flex and creak immediately after install

Investigator’s Observation: At the stairs, the respondent used pieces for

the installation vs. full length planks.

My research indicates that this could be done but may not be the most popular method of installation.

That said, the installation at the stairs has joints that line up as you traverse the stairs.

The joints need to be staggered and not in line.

The stairs also are creaking as weight is applied to the stairs.

The respondent is to correct the installation at the stairs in an appropriate manner.

Compliance Item: 4 - Area around fireplace was left unfinished and concrete can be seen all around fireplace

Investigator’s Observation: There is a gap (necessary) at the fireplace/end of floor however that gap has not been 'finished'

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

Compliance Item: 5 - large gaps throughout the floor. There are hundreds

of joints where I can fit a coin/ feeler gauge between wood. The subfloor can be seen under light. This is the Entire main level (3 story home) and less throughout remaining levels

Investigator’s Observation: I only noted a couple of locations that had excessive gapping. The majority of the installation butt joints were tight.

I noted no exposed substrate. Note: flooring issues are to be viewed from a

standing position and under natural light.

The respondent is to correct any open butt joints in an appropriate manner.

Compliance Item: 7 - Administrative Violation- The respondent's 'contract'

does not comply with ARS 32-1158.A

Investigator’s Observation: The respondent's invoice/'contract' does not contain the licensee's license number 32-1158.A.(1), an approximate completion date (4) and does not contain the notice to the public of the right to file an ROC complaint (9).

The respondent is to ensure that contractual documents used comply with the State Minimum Elements of a Contract statute.

Compliance Item: 8 - Administrative Violation- The respondent's invoice/"contract" does not have the licensee's license number as required

pursuant to ARS 32-1124.B

Investigator’s Observation: The respondent's invoice/'contract' does not contain the license number as required.

The respondent is to ensure that his instruments to conduct the business of

contracting contain his license number preceded by the ROC acronym as required.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 3 - MDF/HDF (?) subfloor partially removed and replaced with OSB. Different thickness, muck more flexible under foot. Very

noticeable. Floor feels different in areas replaced, more flex, wood bend when walked on in these areas. Rodger was called and TOLD 3X this floor was being laid improperly, He would not listen

Investigator’s Observation: There is a 3/4" plywood subfloor in place. The previous tile flooring was removed and this created an elevation change that required addressing.

Per the respondent 1/2" OSB was used to make up the elevation difference.

No appreciable flex was noted and I did not feel any transitions caused by

vertical elevation differences in the substrate.

I can find no standard that shows that this is improper.

Governing Rule: The evidence does not support a violation

Compliance Item: 6 - When I told Rodger his work was substandard and in no way up to standards. He called me an asshole. and sent me an email saying he would not come by because I had an "aggressive tone". He treated my wife and I like an inconvenience, trouble makers and his adversary. We are customers who paid a LOT of money to be treated like this. He argued with every concern we had and was a complete unprofessional. (not sure if you handle the CS aspect as well, sorry)

Investigator’s Observation: Customer service is beyond the ROC's jurisdiction and is not actionable.

Governing Rule: No violation is present

All errors in original.

Investigator Dimond thereafter temporarily closed the Complaint due to the fact that additional flooring material needed to be ordered and it was only available to be shipped from Vietnam which took a significant amount of time. Upon receipt of the materials, Respondent performed some corrective work.

On August 10, 2021, Investigator Dimond conducted a compliance inspection and authored Compliance Jobsite Inspection Notes as follows:

Compliance Findings:

Compliance Item 1: Floor laid incorrectly overall

Investigator’s Observation: The areas of clustered smaller pieces appear to have been corrected.

There are several areas that still have an end joint lap of less than 6”. The manufacturer specs mandate 6” or more. This is on the main floor and upstairs bedrooms.

The respondent is not in compliance regarding the butt joint laps.

Compliance Item 2: Stairs were not laid properly

Investigator’s Observation: The pattern on the stairs does not appear have been corrected.

Compliance Item 4: Area around fireplace gap

Investigator’s Observation: This item has been corrected and meets standards.

Governing Rule: No violation is present regarding this item

Compliance Item: Large gaps throughout the floor.

Investigator’s Observation: No excessive gapping was noted at the inspection

Governing Rule: A violation is not sustainable regarding this item

Note: The respondent is not in compliance

All errors in original.

Thereafter, Investigator Dimond forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, and A.R.S. § 32-1154(A)(22).

Investigator Dimond testified consistently with his findings contained in the Written Directive and the Compliance Jobsite Inspection Notes. Investigator Dimond further testified that he observed no areas of concern regarding the substrate and that there was no specification from the flooring manufacturer regarding the lengths of wood planks to be installed. Investigator Dimond testified that some laps continue to be less than six inches and that the joints are in line on the steps, rather than staggered. Investigator Dimond testified regarding the photographs he took at the jobsite and compliance inspections. Investigator Dimond explained that the reason the Citation was issued was due to the workmanship issues concerning the stairs and the laps. Investigator Dimond also clarified that at the compliance inspection, he “missed” the “excessive” amount of short planks clustered in an area, and that those are still an issue.

The manufacturer specifications state the following in pertinent part:

Layout of Flooring: “Racking the floor” is essential to achieve a random appearance. Start by either using random-length planks found in the carton or by cutting four or five planks in random lengths, differing by at least six inches. As you continue working across the floor try to maintain a six-inch minimum between joints.

Investigator Dimond testified that in his opinion, the above-quoted manufacturer specification “mandates” a lap of at least six inches, notwithstanding the wording in the specification. Regarding the stairs, Investigator Dimond testified that it is industry standard to have the joints staggered, rather than in a straight line. Investigator Dimond testified that Respondent performed some corrective work to the stairs, but “some were not touched.”

Investigator Dimond explained that the Registrar will not give a contractor direction on how to perform corrective work because a licensed contractor should be aware of what minimum workmanship standards are, and should know how to bring deficient work in compliance with those standards.

Investigator Dimond testified that overall, Respondent failed to comply with the Written Directive. As to the administrative violations, Investigator Dimond testified that Respondent’s contract documents did not contain its license number, the completion date for the project, or the advisement concerning a property owner’s right to file a written complaint with the Registrar.

Mr. Bailey testified the product he purchased was cut by Respondent and that the gaps in the flooring are present because Respondent failed to install long pieces of wood which doubled and tripled the number of joints. Mr. Bailey testified that the material he purchased included seven and five foot pieces and that only two and three foot pieces were installed with the exception of one four foot piece. At hearing, Mr. Bailey shared photographs demonstrating the gaps. Mr. Bailey also testified that the joints were supposed to be beveled, however, many joints are not beveled but rather contain saw marks from Respondent saw cutting the planks. Mr. Bailey shared photographs depicting the saw marks. Mr. Bailey further testified that plywood and OSB were used for the subfloor and because there is a 1/16” difference in height between the two surfaces, the flooring cannot bond to the subfloor. Mr. Bailey asserted that both the subfloor and floor were ruined by Respondent and that the entire floor was improperly installed, including the seams on the stairs.

Jack Jennings, lead installer for Respondent’s subcontractor, With the Grain, testified that the industry standard for laps is the length of the board width, and in this case, the width of the boards is five inches. Mr. Jennings testified that there are four flights of stairs in Complainant’s home and that he corrected the most visible flight, however did not correct the other flights of stairs. Mr. Jennings removed and replaced the flooring on the flight of stairs from the main floor to the landing. Mr. Jennings asserted that there are no industry standards for the installation of wood on stairs. Mr. Jennings testified that he did not address the other flights of stairs because he “could not satisfy” Complainant and because Complainant told him that he “would sue no matter what they did.” Mr. Jennings also testified that the Written Directive did not specify which stairs needed to be addressed and Respondent did not perform corrective work to the other flights of stairs because they were “not a structural problem” and “structurally and time-wise, it didn’t make sense.” Mr. Jennings explained that none of the issues with the flooring were corrected in the basement because the floor is glued down in that location, and therefore would have been substantially more difficult to remove and replace.

Nathan Artlip, owner of With the Grain, testified that a six inch lap is only a recommendation, not a requirement, and that random lengths of laps “sometimes happen especially with smaller product.” Mr. Artlip further testified that there is no industry standard for stairs, however Mr. Artlip acknowledged that aesthetically, the stairs “did not look good.”

Roger Pride, Respondent’s owner, partially blamed Respondent’s non-compliance with the Written Directive on the fact that Complainant would not allow Mr. Artlip at the jobsite inspection. Mr. Pride asserted that Respondent “would have had more clarity” regarding what the Written Directive required had Mr. Artlip been in attendance, and that Respondent received “no direction” from the Registrar. Mr. Pride testified that Respondent only ordered enough material for one set of stairs because that was the only set of stairs depicted in the jobsite inspection photographs. Mr. Pride acknowledged that in hindsight, Respondent “did not fully understand the Written Directive” and believed that Respondent “would have another opportunity after the compliance inspection.” However, Mr. Pride acknowledged that Respondent never contacted Investigator Dimond to seek clarification of the Written Directive after its issuance. Mr. Pride testified that the manufacturer specifications do not mandate a six inch lap, and that a rule of thumb for the size of the lap is the width of the board. However, the evidence of record, including the jobsite and compliance inspection photographs, Investigator Dimond’s testimony, and the photographs shared at hearing by Complainant, established that many of the laps were less than five inches. Mr. Pride contended that a minimal amount of work needs to be performed in order to bring the project into compliance with the Written Directive. Mr. Pride asserted that Complainant cannot be satisfied. Mr. Pride testified that his contract documents are now in compliance with the Registrar’s requirements.

Administrative notice is taken of Respondent’s prior License record on December 14, 2021. Such prior License record reflects that Respondent’s License No. 217361 was first issued on February 27, 2006, and is active. Such prior License record also reflects that there is only the instant open complaint, zero resolved/settled complaints, and no discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence established that Respondent departed from of disregarded the specifications for the laps. The manufacturer specifications state, “try to maintain a six-inch minimum between joints.” The substantial and probative evidence of record established that Respondent did not adhere to this specification. In fact, Respondent did not even adhere to what it contended was industry standard - that the laps should be the width of the planks. In this case, that would have been five inches. The evidence of record established that many laps were less than five inches. Therefore, Complainant established that Respondent materially departed from specifications in such a way that was prejudicial to Complainant, in violation of A.R.S. § 32-1154(A)(2)(a).

The credible, substantial, and probative 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(a).

The evidence established that Respondent failed to include in its contract, its license number, a completion date for the project, or the advisement that a property owner has the right to file a written complaint with the Registrar. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158.

The evidence established that Respondent did not complete the required corrective work following 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. 217361 for a period of five (5) 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 (30) 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, December 17, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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