ALJDEC - Licensing
2023A-00917-CHC-ROC · Registrar of Contractors · 2023-08-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Jeremy Barnes ,
COMPLAINANT
v.
HEALTHY HOME FLOORING LLC
License No. ROC 328401,
RESPONDENT
No. 2023A-00917-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 9, 2023, 9:00 A.M.
APPEARANCES: Complainant Jeremy Barnes appeared on his own behalf; Thomas Moring, Esq., appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Healthy Home Flooring, LLC (Respondent), is the holder of License Number 328401 issued by the Registrar of Contractors (Registrar).
2. On or about January 24, 2023, Jeremy Barnes (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work by Respondent in connection with flooring work at a residence in Mesa, Arizona (“project”).
3. The Registrar performed an inspection of the project on March 22, 2023. Thereafter, the Registrar issued a Written Directive, dated March 22, 2023 (Directive), requiring Respondent to remedy the following violations by appropriate means by April 14, 2023, which was extended at the request of Respondent to April 28, 2023 (“Directive deadline”):
Compliance Item: 1 – Summarized from complaint: The laminate flooring was
removed due to a bubbling issue and has not been reinstalled.
Investigator’s Observation: Verified. I observed the flooring removed from the entry/living room, dining room, family room, kitchen, two halls, master bedroom, master bathroom, master closet and the laundry room. I also observed flooring in the hall bath room that had not been removed yet and there was no moisture barrier installed there or under some flooring left in the front living room. The manufacturer’s installation instructions state, “A minimum 6 mil (0.2mm) polyethylene vapor barrier must be used when installing over concrete.” There was discussion of excess moisture in the front living room, however there was no moisture barrier installed under the floor covering. If there are future issues resulting from moisture after the flooring is installed per the manufacturer’s
instructions, it will be the responsibility of the Complainant to correct and not the Respondent. The contractor should complete the flooring installation per the contract and per the manufacturer’s installation instructions by appropriate means.
Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108.
Compliance Item: 2 – Summarized from complaint: The baseboards are not installed and were removed with the flooring.
Investigator’s Observation: Verified. I observed removed/missing baseboards throughout the home. Contractor should install baseboards per the contract by appropriate means.
Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108.
4. The Registrar performed a Compliance Inspection on May, 2, 2023, and observed that no corrective work had been done.
5. The Registrar then issued a Citation to Respondent, dated May 15, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a) for failure to perform work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing for August 9, 2023, at 9:00 A.M. At the August 9, 2023, hearing, Complainant Jeremy Barnes testified on his own behalf and presented the testimony of Amber Barnes, his wife; Bryan Perkinson, court-appointed Receiver for Respondent, and Katie Holmes, Director of Customer Experience for Respondent, testified on behalf of Respondent. Doug Barrett, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal on the record received and admitted Complainant’s Exhibit numbers 1 - 11; Respondent did not submit any exhibits.
7. The Investigator testified on behalf of the Registrar consistently with his findings contained in the Directive and his job inspection notes. Specifically, he testified that he observed laminate flooring that had been removed in most of the rooms of the residence as a result of bubbling apparently due to moisture. He said he also observed laminate flooring that had not been removed that lacked a moisture barrier required by manufacturer’s specifications for laminate placed directly over a concrete subfloor. He further testified that he took moisture readings with a moisture meter at the inspection as shown by his job site photographs with the highest reading at 22.9% (page 33 of job inspection notes). He acknowledged that his use of his moisture meter was not the appropriate test for moisture, and that a calcium chloride test was the more appropriate test.
8. Complainant Jeremy Barnes testified consistently with the chronology of events in his Complaint. He testified that Respondent installed the first laminate flooring in February 2022, which had to be replaced by Respondent in November 2022 due to the planks chipping from an “aggressive install.” He stated there was never any mention at that time that moisture may have caused the first flooring to fail. He stated further that he never had moisture issues with his original carpet and tile flooring.
He testified that within a few days of reinstallation, the second flooring began bubbling. He stated that after Respondent removed a portion of the flooring in January 2023 and did some moisture testing of the concrete subfloor, they then refused to install a third floor (now changed by Complainant to vinyl) until Complainant showed there was not a moisture issue on the subfloor. In response, he stated that in January 2023, he contracted with Servpro for an inspection that resulted in a finding that there were no visible leaks or standing water present. (Complainant’s Exhibit No. 2). He indicated that Servpro did another inspection in March 2023 which reflected that the moisture meter readings were within an acceptable range based on industry standards. (Complainant’s Exhibit No. 2). He stated In March 2023, he had testing performed by George Brazil Plumbing for a slab leak which resulted in a finding that there was no such leak. (Complainant’s Exhibit No. 3).
He further testified that he and his wife had not caused water intrusion onto the flooring, and that a steam cleaner did not cause damage to the flooring as contended by Respondent. In fact, he stated the photograph claimed by Respondent to depict a steam cleaner actually depicted a vacuum cleaner.
He testified that he mistakenly believed a moisture barrier had been installed for the first flooring but that it had not been applied for the second flooring even though he contended it was part of the contract. He stated that Respondent would not install a moisture barrier for the third flooring unless he paid an additional amount.
9. Amber Barnes testified on behalf of Complainant as to a chronology of events. She testified that they allowed Respondent one last chance to do corrective work after the Directive deadline. She stated that on May 3, 2023, Devon from Respondent had promised to complete the flooring on May 8th, but did not show up or call and that after that they decided to let the Registrar’s process take its course.
10. Bryan Perkinson, court-appointed Receiver of Respondent, testified on behalf of Respondent as to the Receivership process and stated that he derived his authority from the Order Appointing Receiver, dated June 22, 2023, in Case No. CV2023-004170. He stated he had no personal knowledge of the facts underlying this case.
11. Katie Holmes, Director of Customer Experience for Respondent, testified on behalf of Respondent, as herein relevant, that she had worked for Respondent for about a year and a half and had reviewed all Respondent’s records regarding this case. She stated no moisture readings of the concrete subfloor were performed prior to the first install because the manufacturer of the planks did not require it. She testified the first flooring failure was 100 per cent moisture-related and that moisture testing was performed before installation of the second flooring, although no readings were presented as evidence.
She stated she believed that the moisture was coming from the concrete subfloor and from a steam mop she believed Complainant had used on the flooring. She also speculated that a weak wall could have caused moisture to get through to the subfloor. She acknowledged she did not know why a moisture barrier was not applied during the install of the second flooring, but claimed a moisture barrier would not have been effective.
12. Administrative notice is taken of the Registrar’s public website which reflects Respondent was first issued the subject license on April 8, 2020. The site also reflects one Open case, one Disciplined case, and eight Resolved/Settled cases. In Case No. 2022A-11429-NPC-ROC, Respondent was suspended for a violation of A.R.S. § 32-1154(a)(10) for failure to pay Complainant therein the amount of $8,159.17.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the following that were included in the Citation:
3. Violation of any rule adopted by the registrar.
...
22. Failure to take appropriate corrective action to comply with his 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.....
5. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case is Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner,”
6. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner, which was not in compliance with Arizona Administrative Code Rule 4-9-108(a).
The Tribunal concludes that the floor bubbling occurring within four days of second flooring installation was a failure to perform work in a professional and workmanlike manner. No persuasive evidence was offered to convince the Tribunal that moisture was in fact the cause of the flooring failure as claimed by Respondent. Complainant’s evidence from Servpro and George Brazil Plumbing, although not conclusive, was some evidence that there was no moisture intrusion from the concrete slab. Further, there was no credible evidence that there was any moisture intrusion with regard to the first flooring installation that had been in place for nine months.
As Respondent claimed it was moisture intrusion and not workmanship that caused the second installation to fail, Respondent presented no credible evidence that it performed the appropriate moisture test as a precaution before any installation upon a concrete subfloor, or advised Complainant of the risk of not doing so. Further, Respondent presented no documentary evidence of its claimed independent moisture readings taken before the second flooring installation and instead relied upon the Investigator’s readings, even though the Investigator acknowledged his use of his moisture gauge was not the proper test for moisture presence on concrete.
Lastly, even if moisture was in fact the cause of the second flooring failure – although apparently and inconsistently not the cause of the first flooring failure – there was no credible evidence presented that such moisture effect on the flooring was not preventable with a moisture barrier of some sort. Respondent provided no reasonable explanation as to why a moisture barrier was not installed for the second flooring. Complainant claimed a moisture barrier was part of his contract with Respondent, although the contract was not entirely clear in that regard. However, even if it was not part of the contract, there was no evidence presented that Respondent informed Complainant of the risks of not installing a moisture barrier on a concrete subfloor.
7. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform corrective action without a valid justification. There was no dispute that corrective work was not performed. Rather, Respondent contended that it had a valid justification for failing to do so because Complainant denied it access to perform the work. However, no evidence was presented that Respondent made any effort to actually perform the work prior to the April 28, 2023, Directive deadline. Even after the Compliance Inspection on May 2nd, Complainant chose to allow Respondent access to perform the work on May 8th, which Respondent did not do apparently due to personnel issues. In any event, regardless of personnel issues, it appears that Respondent “had no intention of starting” the work that day without meeting with Complainant first. (See Complainant’s Exhibit No. 1, May 9, 2023 email). After Respondent missed its opportunity to do corrective work on May 8th, Complainant was not obligated to allow Respondent any further access to do corrective work.
Further, Respondent’s concern for its responsibility if a third flooring installation failed due to moisture was unfounded. The Directive was clear and direct: reinstall the flooring with a moisture barrier per manufacturer’s specifications and if there were future issues regarding moisture, it would “be the responsibility of Complainant to correct and not the Respondent.” Respondent would not have been thereafter responsible. Thus, no valid justification has been shown for not completing the corrective work.
8. Accordingly, the Tribunal finds that Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(3) (with regard to flooring and baseboards) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, Healthy Home Flooring, LLC’s, License Number 328401 is suspended for five (5) days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order.
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 the outstanding prior civil penalty.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, August 29, 2023.
/s/ Roger A. Geddes
Administrative Law Judge
Transmitted electronically to:
Martín Quezada
Director - Registrar of Contractors
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
HEALTHY HOME FLOORING LLC
[email redacted]
[email redacted]
Jeremy Barnes
[email redacted]
By: OAH Staff