ALJDEC decisions subject to certification as final

2021A-02947-CHC-ROC · Registrar of Contractors · 2021-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lori Ann McCall,

COMPLAINANT

Envision Builders LLC

License No. ROC 313790,

RESPONDENT

No. 2021A-02947-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 8, 2021

APPEARANCES: Complainant Lori Ann McCall appeared on her own behalf. Mary Crandall, Owner and Qualifying Party, appeared on behalf of Respondent Envision Builders LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Envision Builders LLC (Respondent) is the holder of License No. 313790, a B-1 General Commercial Contractor license, issued by the Arizona Registrar of Contractors (Registrar).

Mary Crandall is also the Owner and Qualifying Party of 1st Choice Flooring & Design LLC, holder of License No. 284928, a CR-8 Floor Covering license, issued by the Registrar.

On or about January 19, 2021, Lori Ann McCall (Complainant) signed a contract with Respondent for, among other things, the installation of vinyl plank flooring. The contract identified Respondent as the contractor, but did not include the estimated date of completion or an advisement that Complainant had the right to file a complaint with the Registrar.

On or about June 29, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Jason Simpson. After a jobsite inspection, Investigator Simpson issued a 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 August 16, 2021.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “Hall shower tile is poor work”

Investigator’s Observation: This allegation is verified. Not completed was all removed to complete plumbing.

Respondent stated that she will complete complaint item.

. . . .

Complaint Item 4: “The contractor re-did master shower tile due to poor work, removed shower door and now refuses to re-place, as it no longer fits.”

Investigator’s Observation: This allegation is verified. Observed shower door was missing. Respondent stated she will replace door and provide installation.

On or about August 25, 2021, Investigator Simpson issued an Addendum Written Directive from the Registrar, which extended the deadline for compliance to September 13, 2021, and added the following item to be corrected:

Complaint Item 5: “We have more [hollow] sounds in the vinyl flooring that we would like for you to re-check, please. Also, we would like you to re-check the kitchen flooring that we paid to level that we do not feel is level.”

Investigator’s Observation: This allegation is verified.

The flooring throughout the entire house exceeds the levelness tolerance allowed the flooring manufacturer.

Using an eight foot level, the following measurements were recorded:

• Humps in the flooring up to 5/8 inch in an eight foot span.

• Low spots in the floor up to 1/4 inch in an eight foot span.

• Floors being out of level varied from 1/4 inch off in eight feet to 7/8 inch off in eight feet.

The manufacturer’s pre-printed installation instructions state the subfloor must be “...level to 3/16 inch within a 10 foot span.”

Published as Substantive Policy Statement 2017.0 I by the Arizona Registrar of Contractors

Quoted from Substantive Policy Statement 2017.01

Acceptance of the Surface

• "As a general principle in construction, a subcontractor who performs work on top of a surface prepared by another accepts the surface. The subcontractor 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 or general contractor'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 contractor may obtain an explicit warranty disclaimer."

Source: Deeb v. Check s Epoxy, No. 2014A-3258 (ALJ Decision at 11:11- 19).

The contract includes a line item: “Sanding and patching floors including materials.”

This line item does not specify any limitations or exclusions.

The subfloor does not meet the requirements of the manufacturer’s preprinted installation instructions.

There is no “warranty disclaimer” between the parties relieving the contractor of responsibility for issues related to installing the flooring in a manner that does not comply with the manufacturer’s preprinted instructions.

Additionally;

One T molding strip between the hallway and the guest bathroom was loose.

This T molding strip was temporarily moved for inspection purposes.

The space between the vinyl plank flooring of the hallway and the tile flooring of the bathroom does not include the required expansion space below this piece of T molding.

The expansion space below this piece of T molding was less than 1/16 inch.

The manufacturer’s preprinted installation instructions state “Proper expansion space (1/4 inch) is required.”

With the T molding temporarily removed, it was observed and confirmed this floor was installed as a floating floor – meaning the floor was not glued down.

It was also observed and confirmed there is no moisture barrier between the flooring and the concrete subfloor.

The manufacturer’s preprinted installation instructions state: “Concrete subfloors must be fully cured for at least 60 days, and should have minimum 6-mil poly-film as a moisture barrier between the concrete subfloor and the flooring.

The flooring is not installed in accordance with the manufacturer’s preprinted installation instructions.

Not following the manufacturer’s preprinted installation instructions is not performing work in a professional and workmanlike manner.

Following the issuance of the written directives, Respondent did not correct the flooring. After the deadline in the directive expired, Investigator Simpson was notified that not all of the corrective work had been performed.

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); A.R.S. § 32-1154(A)(9)(a); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; A.R.S. § 32-1154(A)(16); and A.R.S. § 32-1154(A)(22).

Investigator Simpson testified that a contractor accepts the surface when it installs flooring on an existing subflooring. Without obtaining an express waiver from the homeowner, workmanship issues relating to the condition of the subfloor are the responsibility of the contractor that installed the flooring. Investigator Simpson also noted that plumber who worked on the project was not licensed by the Registrar.

Complainant testified that she never approved Respondent’s failure to level the subfloor prior to the installation of the vinyl plank flooring. Complainant denied that she was told there would be an additional charge to level the subfloor or that she refused to pay such an additional charge.

Ms. Crandall testified that her installer “messed up big time” and should not have installed the flooring until ensuring the subfloor was level. Ms. Crandall maintained that there might have been an issue with the flooring material that contributed to the issue, but acknowledged that it was not the entire issue. Ms. Crandall noted that she holds the proper license to perform the work at issue in this matter, but erroneously listed her commercial license on the contract. Ms. Crandall maintained it was simply an oversight.

Administrative notice is taken of Respondent’s prior License record on December 21, 2021. Such prior License record reflects that Respondent’s License No. 313790 was first issued on May 19, 2017, and is active. Such prior License record also reflects that there were no other open or prior complaints 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 Vazzano 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’s work was not in conformity with the Registrar’s standards. Respondent accepted the condition of the subfloor prior to the installation of the vinyl plank flooring and, any issues stemming from the subfloor were the responsibility of Respondent. 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 employed a plumber who was not licensed. Therefore, Complainant established that Respondent aided and abetted the unlicensed contracting in violation of A.R.S. § 32-1154(A)(9)(a).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent’s license number appearing on the contract for this project was for commercial projects rather than its flooring installation license. Accordingly, Complainant established that Respondent contracted beyond the scope of its license in violation of A.R.S. § 32-1154(A)(16).

The evidence established that Respondent did not 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).

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. 313790 for a period of three days.

It is further recommended that, on or before thirty 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.

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.

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-137160-45720000Done this day, December 28, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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