ALJDEC - Licensing

2023A-01202-CHC-ROC · Registrar of Contractors · 2023-08-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

James Edward Herrmann,

COMPLAINANT

The Creta Group LLC

License No. ROC 318688,

RESPONDENT

No. 2023A-01202-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 25, 2023

APPEARANCES: Complainant James Edward Hermann appeared on his own behalf. John Galea appeared via Google Meet on behalf of Respondent, The Creta Group LLC. Mark Nipp, Registrar of Contractors Investigator, appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

The Creta Group LLC (Respondent) is the holder of License No. 318688 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 17, 2022, James Edward Hermann (Complainant) signed a contract with Respondent to install new flooring in Complainant’s residence. The contract amount was for $13,500.00.

On or about January 31, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Albert Bernal but then later reassigned to Mark Nipp. An amended complaint was filed on March 24, 2023 and a jobsite inspection was completed on April 11, 2023.

Investigator Nipp issued a written directive on or about April 13, 2023, to Respondent that provided as follows:

The written directive from the Registrar dated March 21, 2023 is rescinded and is superseded by the following written directive.

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 May 1, 2023.

. . .

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

Compliance Item #1: Floor doesn't lay flat (Didn't use spacers for correct spacing along walls)

Investigator’s Observation: Verified

The Complainant showed me multiple areas where vertical deflection could be seen. The Respondent confirmed this material was installed as a floating floor.

I inspected the flooring for vertical deflection in the following areas:

• Living room (four separate locations)

• Family room (two separate locations)

• Kitchen (three separate locations) –one end joint with a broken locking tab (independent vertical movement) and two end joints that had lippage.

• Hall near powder room (one separate location)

• Pantry (one separate location)

• AZ room (three separate locations)

• Laundry (one separate location)

• Long hallway (one separate location)

• Primary bedroom (three separate locations)

• Primary bathroom (three separate locations)

• Office (one separate location)

• Guest bedroom #1 (three separate locations)

• Guest bedroom #2 (Three separate locations)

• Hall bathroom (one separate location).

There were over 30 separate locations within the house where I saw vertical movement. I also noted that the baseboards throughout the home were inconsistently spaced with every room having areas where the baseboards were installed in contact with the flooring (preventing the flooring material to expand/contract as required by the manufacturer). None of the areas with vertical deflection appear to exceed the standard of substrate flatness (3/16” over 10 feet); however it is not possible to determine this for certain with the flooring installed. However, the number of locations with this condition is excessive and the floor’s lack of ability to expand/contract is not acceptable.

ROC Workmanship Standards for Licensed Contractors (June 2009) states, A contractor shall perform all work in a professional and workmanlike manner.

The contractor should identify all locations where this condition exists and the respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 2-12

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #7: Caulking around fireplace three different colors and not cut to close tolerance to much caulking

Investigator’s Observation: Verified

I saw that the “caulking” was different colors and there was a piece of tape imbedded in the material. I also noted that the material used had hardened and was similar to grout. The material was not consistently applied and covered the edge of the flooring material. There was caulk/grout smeared on the flooring as well. A floating floor requires an expansion gap against walls, cabinets, etc. in order for the flooring to expand/contract with changes in temperature and humidity. The grout installation negates the expansion gap and locks the floor in place along the fireplace which can cause buckling.

Reference Picture(s) 13-16

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #8: Vinyl plank not cut evenly under cabinets/Kitchen and bathroom

Investigator’s Observation: Verified

The Complainant showed me several areas he was concerned with.

I saw there were jagged (saw tooth) cuts, tapered cuts and inconsistent gaps at cut ends in the following locations:

• Kitchen base cabinets

• Primary bathroom vanity

• Guest bathroom vanity

ROC Workmanship Standards for Licensed Contractors (June 2009) states,

Irregular cuts along cabinets or walls is not acceptable and contractor should make appropriate repairs or replace.

Reference Picture(s) 17-29

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #12: Base boards not installed properly/space uneven over vinyl plank

Investigator’s Observation: Verified

I saw that the baseboards throughout the home were installed with inconsistent gaps between the flooring material and the bottom of the baseboards. I saw that each room had sections of baseboard that were installed tightly against the flooring material, essentially locking the flooring material in place and preventing expansion/contraction required for a floating floor.

The NuCore Performance Flooring Installation Instructions state, Flooring must be installed around cabinets and fixed objects with at least 1⁄2” expansion gap around the perimeter around all sides. Cover the expansion gaps around the perimeter of the room with base and quarter-round moldings. When installing moldings, leave slight clearance between the molding and the planks. Nail the molding to the wall surface, not through the flooring.

Reference Picture(s) 30-38

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted

by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #13: Baseboards cut to short

Investigator’s Observation: Verified

I saw there were multiple locations where the baseboards were too short and did not touch. I noted they had not been properly filled, sanded or painted.

ROC Workmanship Standards for Licensed Contractors (June 2009) states, All joints on molding, casing, etc., should fit and be securely attached, as well as properly filled and sanded.

Reference Picture(s) 38-46

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #14: Some baseboards damaged (These were new base boards for installation.)

Investigator’s Observation: Verified

I saw there were locations in the baseboards that had apparent pry marks from being removed by the Respondent to make corrections to the flooring.

ROC Workmanship Standards for Licensed Contractors (June 2009) states, A contractor shall perform all work in a professional and workmanlike manner.

Reference Picture(s) 47-50

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #15: Some baseboards not caulked or painted

Investigator’s Observation: Verified

I saw multiple areas in every room of the house where the tops and joints of baseboards were not caulked or painted.

ROC Workmanship Standards for Licensed Contractors (June 2009) states, A contractor shall perform all work in a professional and workmanlike manner.

Reference Picture(s) 30-59

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #16: Drywall repair improperly finished/no texture/no paint

Investigator’s Observation: Verified

The Complainant explained that when the Respondent removed the baseboards to replace some flooring material, they damaged the drywall above the baseboards. I saw the texture of the drywall just above the baseboards was significantly different than the surrounding drywall.

ROC Workmanship Standards for Licensed Contractors (June 2009) states,

Readily visible flat areas in a textured finish is not acceptable and the contractor should make necessary repairs.

Reference Picture(s) 53-59

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #17: Caulking on floor

Investigator’s Observation: Verified

I saw caulking/grout on the flooring material near the fireplace and under the kitchen cabinets.

ROC Workmanship Standards for Licensed Contractors (June 2009) states, A contractor shall perform all work in a professional and workmanlike manner.

Reference Picture(s) 15-28

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

Compliance Item #18: Trim by front door pried off and damaged

Investigator’s Observation: Verified

I saw the door casing (front door) and the drywall adjacent to the casing was damaged. The damage was consistent with the casing being pried up and pulled away.

ROC Workmanship Standards for Licensed Contractors (June 2009) states, A contractor shall perform all work in a professional and workmanlike manner.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license.

Reference Picture(s) 48

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R 4-9-108(a): A contractor shall perform work in a professional and workmanlike manner.

(All errors contained in the original).

On May 18, 2023, 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).

On or about June 7, 2023, a Notice of Hearing was issued setting a hearing on July 25, 2023 at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Nipp testified as to his involvement and the above timeline.

Investigator Nipp testified that on May 8, 2023, her spoke with Mr. Galea who informed him that no corrective work had been performed.

Complainant testified that the amount he paid to Respondent was for labor as he purchased the flooring.

Further, Complainant testified that after three failed attempts to have Respondent repair the flooring, he filed his Complaint with the Registrar. He testified further that the flooring has gone from bad to worse as the bubbles and breaks in the flooring were worse than how the flooring started.

Complainant testified there was no contact from Respondent once the Written Directive was issued.

John Galea testified as the Respondent’s Qualifying Party. He testified that he had associated with a guy who did not have a license, Vasile Creta, to form the company.

Mr. Galea testified that Mr. Creta was hiding jobs from him, as he was unware of the contract with Complainant.

Further, Mr. Galea testified that he advised Mr. Creta just to buy the flooring and repair the same, but Mr. Creta refused. Mr. Galea testified that the flooring style had been discontinued and because of that, it could have been susceptible to breaking causing the problems.

Administrative notice was taken of Respondent’s prior License record on August 9, 2023. Such prior License record reflected that Respondent’s License No. 318688 was first issued on March 23, 2018 and reflected that there were three open complaint, one of which was the present complaint. The record also reflected that there were two disciplined cases and three resolved/settled cases.

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 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).

The preponderance of the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Mr. Galea did not dispute that there were issues with the work performed. 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 and Mr. Galea admitted that he failed 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).

The tribunal is also very troubled given the review of the Respondent’s License record, and therefore recommends a significant discipline to protect consumers.

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. 318688 for a period of forty-five 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)(7), unless Respondent tenders payment of any 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 9, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

The Creta Group LLC

3844 N 24th St

Phoenix, AZ 85016

[email redacted]

James Edward Herrmann

916 east 9th place

Mesa, AZ 85203

[email redacted]

By: OAH Staff