ALJDEC - Licensing
2023A-03671-CHC-ROC · Registrar of Contractors · 2023-09-15
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Darcy Saba Hicks,
COMPLAINANT,
v.
Walk On Wood Inc.
ROC License No. 217361,
RESPONDENT.
No. 2023A-03671-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 11, 2023 at 1:00 PM.
APPEARANCES: Darcy S. Hicks (“Complainant”) appeared on her own behalf. Roger Pride appeared on behalf of Walk On Wood Inc. (“Respondent”). Jim Dimond appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Nathan Arplip observed.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Arizona Registrar of Contractors (“Registrar”).
FINDINGS OF FACT
Background and Procedure
Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website. On February 27, 2006, the Registrar issued License No. 217361 Specialty Dual CR-8 Floor Covering contracting license to Respondent. The license is in good standing and has been renewed through February 29, 2024. Roger C. Pride is listed as the Qualifying Party and Officer on the license. Respondent’s address of record for the license is 336 N. Pleasant St. Prescott, AZ 86301. Respondent has an active $6,750.00 surety bond on the license issued by Old Republic Surety Company, effective February 27, 2006. The license has been previously disciplined by the Registrar on one occasion. There is one open complaint against the license which is presumably related to this matter.
On March 24, 2023, the Registrar received a 7-item complaint from Complainant against Respondent’s License No. 217361 alleging poor workmanship of their flooring project. The Registrar designated it Complaint No. 2023-03671 and assigned to Jim Dimond (“Investigator Dimond”) for investigation.
On March 30, 2023, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by Investigator Dimond on April 14, 2023, at 12:00 p.m.
On April 14, 2023, Investigator Dimond inspected the work Respondent had performed on the project to date. Respondent was present. Investigator Dimond took 12 photographs of the project. When he was finished, Investigator Dimond drafted Jobsite Inspection Notes. Ultimately, Investigator Dimond substantiated all 7 complaint items. Specifically, Investigator Dimond determined that complaint items 1-7 constituted poor or incomplete work, and failed to meet the Registrar’s minimum workmanship standards.
On June 13, 2023, Investigator Dimond issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated all of Complainant’s complaint allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on July 03, 2023, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A) and 32-1154(E). Correspondence was not returned as undeliverable to the Registrar.
On July 05, 2023, Investigator Dimond escalated Complaint No. 2023-03671 to the Registrar’s legal department with citation recommendations for violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22).
On July 07, 2023, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until July 22, 2023, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. § 32-1155.
On July 21, 2023, the Registrar received Respondent’s timely written Answer. In pertinent parts, Respondent alleged that the flooring installed in Complainant’s home required 35% humidity, per the manufacturer and distributor, and that Complainant’s home only maintained 6% humidity. Respondent also argued that an independent inspection suggested Complainant use transitions at doorways, which she refused. Respondent offered that it was willing to make repairs to the floors, but was prevented from doing so because Complainant was insistent that the floors be replaced.
On July 24 2023, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on September 11, 2023. Per the July 27, 2023, Notice of Hearing the issue to be determined is whether the Registrar has cause to discipline Respondent’s license based on the following charges:
Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)
Charge 2: A.R.S. § 32-1154(A)(22)
Hearing Evidence
Complainant testified on her own behalf and called Investigator Dimond as a witness. Respondent called Roger Pride as a witness. The Registrar’s agency file (“Agency File”), including the Notice of Hearing, was admitted into the record as its own exhibit. The substantive evidence of record is as follows:
Complainant owns newly constructed residential property located at 1969 W. Shadow Valley Dr. Prescott, Arizona 86305.
In May 2021, Complainant entered into a residential contracting agreement with Kopavi Construction (ROC License Nos. 096938 & 163078) for the addition of 3 bedrooms, bathroom, garage enlargement, and remodel of Complainant’s bar, kitchen, and utility room. Respondent was the flooring sub-contractor on the job.
On or about May 18, 2021, Complainant and Respondent entered into a $19,200.00 flooring contract whereby Respondent agreed to install Monarch Verano Basalto floating flooring throughout Complainant’s home; including the entryway, living room, kitchen, hallways, primary bedroom, office/game room, and stairs.
Complainant paid her contract with Respondent in full.
Between June 13, 2023, and July 03, 2023, Respondent did not perform any corrective work on the project because Mr. Pride did not read the Directive until after its compliance deadline had expired. Shortly after reviewing the Directive Mr. Pride contacted Complainant to schedule corrective work, but was hindered in execution to due material delays.
August 28, 2023, through September 01, 2023, and September 05-06, 0223, Respondent performed corrective work on the project with Complainant’s permission.
On August 30, 2023, Investigator Dimond issued a Prehearing Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site on September 08, 2023, at 9:00 a.m.
On September 08, 2023, Investigator Dimond inspected the work Respondent had performed on the project to date. Respondent was present. Based on his firsthand observations Investigator Dimond determined that satisfactorily remediated complaint items 2 and 4-7, but had not performed corrective work necessary to remediate complaint items 1 and/or 3.
The parties agreed that Respondent would be permitted to perform additional corrective work on complaint items 1 and 3 on September 12, 2023.
Additional Evidence
The flooring manufacturer’s limited warranty notes the following, in pertinent parts:
CUSTOMER RESPONSIBILITIES:
- Hardwood flooring is a natural product. Wood expands and contracts according to humidity and moisture conditions. It is very important that engineered wood flooring be thoroughly acclimated to a controlled environment before it is installed and that the environment remain controlled throughout the life of the floor.
INSTALLER RESPONSIBILITIES:
- Verify that installation and/or site conditions are adequate for the installation in accordance with the Installation Instructions and ensure that humidity and temperature conditions are maintained during acclimation and installation.
Warranty Exclusions – things not covered by Monarch Plank’s Warranty:
- Natural expansion and contraction resulting in separation between boards or damage caused by high or low humidity
* * *
- Cupping or crowning in the flooring boards due to excessive subfloor moisture or low humidity
(Emphasis in original.)
The flooring manufacturer’s installation instructions note the following, in pertinent parts:
GENERAL REQUIREMENTS – ALL INSTALLATION METHODS
Environmental Conditions
To help minimize moisture-related expansion and contraction, verify the following conditions prior to acclimation and installation:
- Permanent HVAC should be on and operational and maintained between 60-75°F with relative humidity of 35%-55% for a minimum of 7 days prior to delivery, during acclimation and installation, and throughout the life of the floor. Humidity levels below 35% or above 55% may cause movement in the flooring, gapping between pieces, cupping, cracking and other problems. Use of a humidification or dehumidification system may be required to maintain proper humidity levels, particularly over radiant heat and in desert or mountain regions.
(Emphasis in original.)
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.
The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.
Complainant bears the burden of proof to establish cause for the Registrar to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code R4-9-108(a) requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.
Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”
Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”
The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.
The material facts in the case at bar are clear.
It is clear that Complainant and Respondent had a flooring contract, which, Complainant paid in full. It is also clear that the Registrar determined that some of the work Respondent performed failed to satisfy its minimum standards set for workmanship, which resulted in the issuance of a Directive. It is also clear that Respondent did not perform any corrective work during the Directive’s compliance period. It is also clear that Respondent performed post- Directive corrective work to satisfactorily remediate complaint items 2 and 4-7.
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive, remediate complaint items 1 and 3, or settle the underlying dispute with Complainant. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent sustained its burden. The credible evidence of record establishes that Complainant’s home only maintained 6% humidity when it was supposed to have between 35% and 55% humidity to avoid or otherwise prevent gapping. As Complainant was responsible for maintaining appropriate humidity percentages in her home, it cannot reasonably be argued that Respondent was responsible or otherwise liable for the deficient levels of humidity at the project site.
Because the “gapping” identified in complaint items 1 and 3 cannot be attributed to a lack of professional workmanship, no violations of Ariz. Rev. Stat. § 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a) have been established by a preponderance of the evidence. As such, no related violations of § 32-1154(A)(22) may be found against Respondent.
Therefore, grounds do not exist for the Registrar to discipline Respondent’s contractor’s license.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that Complaint No. 2023-03671 be dismissed.
NOTICE
Pursuant to Ariz. Rev. Stat. § 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, September 15, 2023.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Cindy Casaus, Interim Director
c/o Legal Department
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
[email redacted]
Walk On Wood Inc., Respondent
336 N. Pleasant St.
Prescott, AZ 86301
[email redacted]
Darcy Saba Hicks, Complainant
1969 W. Shadow Valley Dr.
Prescott, AZ 86305
[email redacted]
By: OAH Staff