ALJDEC decisions subject to certification as final

2022A-03061-CHC-ROC · Registrar of Contractors · 2022-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Christian Martinez,

COMPLAINANT

Desert Armor Coatings, LLC

License No. ROC 331666,

RESPONDENT

No. 2022A-03061-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 7, 2022

APPEARANCES: Complainant Christian Martinez appeared on his own behalf. Deysi Madrigal was also present. Mark Saric, Esq. represented Respondent Desert Armor Coatings, LLC. Cameron McEachren appeared as a witness for Respondent. Hailee Williams was also present. Arizona Registrar of Contractors Investigator Chris Fultz appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Desert Armor Coatings, LLC (“Respondent”) is the holder of License No. 331666 issued by the Arizona Registrar of Contractors (“Registrar”). Cameron McEachren is Respondent’s Qualifying Party and Manager.

On or about April 1, 2022, Deysi Madrigal contracted with Respondent for Respondent to install an epoxy coating on the floor throughout her home. The contract price was $19,000.00.

On or about April 15, 2022, the Registrar received a Complaint against Respondent from Christian Martinez (“Complainant”), Ms. Madrigal’s significant other, alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Chris Fultz. On May 11, 2022, Investigator Fultz conducted a Jobsite Inspection. Investigator Fultz’s Jobsite Inspection Notes state the following:

The complainant described that the floor had bubbles and uneven foundation and debris underneath the coating. I walked the areas and took several pictures of the issues that were point out. The area that brought up concerns was around the edges by the walls. These areas were consistent with where the carpet tack strip had been removed from the concrete.

I reviewed the contract and nothing in the contract suggested that the contractor removed the tack strip. I was advised by the contractor that someone had removed them prior to the installation.

I did note bubbles in a few locations not in the area of the tack strip. I also noted that there appears to be tape stuck in the epoxy finish.

A directive will be issued in this matter.

Compliance Item: 1 - The entire epoxy has bubbles and uneven foundation with debris underneath coating.

Investigator’s Observation: The issues pointed out during the inspection,

are consistent where the carpet tack strip was removed from the concrete flooring. However there was some bubbling outside that area. I also noted that there looks like what appears to be tape stuck inside the finish. This will need to be fixed by appropriate means.

All errors in original.

Investigator Fultz issued a Written Directive to Respondent dated May 24, 2022, that provides 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 June 13th 2022.

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

Compliance Item: 1 - The entire epoxy has bubbles and uneven foundation

with debris underneath coating.

Investigator’s Observation: The issues pointed out during the inspection, are consistent where the carpet tack strip was removed from the concrete flooring.

All errors in original.

Following the issuance of the Written Directive, Respondent contacted Investigator Fultz and indicated that it was having difficulty reaching Ms. Madrigal to schedule a time for the corrective work. Investigator Fultz extended the deadline for the Written Directive by ten days with a new deadline of July 7, 2022, and instructed Respondent to contact Complainant to schedule the corrective work.

After the expiration of the extended deadline for the corrective work, Complainant contacted Investigator Fultz to inform him that Respondent did not comply with the Written Directive.

Investigator Fultz conducted a Compliance Inspection on July 19, 2022. Investigator Fultz’s Compliance Jobsite Inspection Notes indicate that “[t]he directive was not completed. The repairs attempted did not make the edging smooth and still have rasied [sic] sharp areas. The color for the repairs do not match.”

Thereafter, Investigator Fultz 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)(3), namely A.A.C. R4-9-108(a), and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing.

Investigator Fultz testified consistently with his findings contained in the Jobsite Inspection Notes, the Written Directive, and the Compliance Jobsite Inspection Notes. Investigator Fultz referenced several of the photographs he took during both inspections that depict the deficient work performed by Respondent. Investigator Fultz testified that multiple rooms “have issues” and that there are “issues throughout the home.” Investigator Fultz explained that in every area of the home where there had previously been carpet, including all the bedrooms and the hallways, there were “issues” with the epoxy flooring. Investigator Fultz testified that there were “site prep issues” and that tape had hardened with the epoxy resulting in a “sharp ridge” along the baseboards, there were raised ridges, and the edging was not smooth.

During the Compliance Jobsite Inspection, Investor Fultz concentrated on one room in particular when ascertaining whether Respondent complied with the Witten Directive. Investigator Fultz testified that there was lippage, trip hazards, and an overall problem with the finish of the floor. Investigator Fultz explained that an epoxy finish is supposed to be smooth with a sheen (unless specified otherwise) and that the epoxy flooring installed in this home is inconsistent with a smooth sheen style epoxy coating.

Investigator Fultz testified that Respondent had contacted him to inquire as to what was required pursuant to the Written Directive. Investigator Fultz explained that the Jobsite Inspection Notes were sent to Respondent with the Written Directive in order to provide more detail and explanation of the findings. Investigator Fultz further explained that the Registrar does not instruct a contractor how to perform repair work, but rather the Written Directive allows a contractor to utilize any method of repair to make corrections as they deem appropriate.

Investigator Fultz testified that Respondent failed to perform proper corrective action.

Investigator Fultz testified that the work performed by Respondent in the garage is “beautiful.” The garage was not the subject of the filed Complaint.

Complainant testified that he believes Respondent is not qualified to install epoxy flooring on interior floors, however, the garage was “done well.” Complainant further testified that Respondent would not correct the deficiencies in the flooring until after the Complaint was filed, notwithstanding that Respondent was aware of the need for repairs.

Mr. McEachren testified regarding his experience with installing epoxy flooring, including two years of working for an epoxy installation company prior to opening his own business two years ago. Mr. McEachren testified that Respondent specializes in garages and metallics, however, Respondent has installed epoxy flooring in the interiors of homes up to 3,000 square feet, as well as for commercial projects and patios. Mr. McEachren testified that he works with multiple materials suppliers and receives training through those suppliers, and has received good reviews, with the exception of one other Registrar complaint that was resolved. Mr. McEachren further testified that Respondent’s only other employee is his girlfriend, Hailee Williams, and she helps with installation, as well as public relations and office work.

Mr. McEachren testified that it was “chaotic” when he went to the jobsite, that the subfloor needed to be “grinded”, and that he performed the grinding and cleaning, as well as patching of one hole. Mr. McEachren testified that he removed carpet tacks and patched the nail holes. Thereafter, Mr. McEachren primed the floor with a single coat, and then on “pour day,” the metallics were added to achieve the design that was discussed with Ms. Madrigal.

Mr. McEachren testified that after the installation, Complainant pointed out “a few spots” with “bubbles that popped,” as well as an area with a rock in it. Mr. McEachren asserted that there were only six or seven areas that were brought to his attention by Complainant at the walk through and Ms. Madrigal paid the balance of the contract in full.

Mr. McEachren testified that when Ms. Madrigal saw the finished product, she did not like the design of the swirls and wanted “larger veins.” Mr. McEachren testified that he had suggested that Ms. Madrigal stay for the design installation, however, she was not present during this phase of the project. Mr. McEachren asserted that it is Ms. Madrigal’s dissatisfaction with the design of the floor, rather than poor workmanship, that led to the filing of this Complaint.

Mr. McEachren testified that he contacted Investigator Fultz for clarification regarding the Written Directive because he believed it was “vague.” Mr. McEachren asserted that he “hit as many areas” as he could and “picked what they thought they should do.” Mr. McEachren testified that he focused on the powder room and removing tape throughout the home, which took about four hours. Mr. McEachren acknowledged that it is “preferable to remove the tape sooner” and that he was “a hint behind on tape.” Mr. McEachren contended that he “did not understand the directive” and “believed he fixed by appropriate means,” however, asserted that he was “never told where” to perform the corrective work. All of the corrective work was performed in one day.

Administrative notice is taken of Respondent’s prior License record on October 20, 2022. Such prior License record reflects that Respondent’s License No. 331666 was first issued on December 17, 2020, and is active. Such prior License record also reflects that there is only the instant open complaint, one resolved/settled complaint, 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 credible and probative evidence of record established that there are deficiencies in Respondent’s work and that portions of its work throughout the interior of the home were performed poorly. Therefore, Complainant established that Respondent did not complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

The credible and probative evidence of record established that Respondent did not complete the corrective work following the Written Directive being issued and that valid justification for such failure did not exist. 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. 331666 for a period of three (3) 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.

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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001

-137160-45720000Done this day, October 20, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

Mark G. Saric, Esq.

3101 N. Central Ave., Suite 304

Phoenix, AZ 85012

[email redacted]

Desert Armor Coatings, LLC

1803 S. Longmore

Mesa, AZ 85202

[email redacted]

Christian Martinez

8753 W Palo Verde Dr

Glendale, AZ 85305

[email redacted]

-54864001

001

-137160-45720000By Miranda Alvarez

Legal Secretary