ALJDEC - Licensing

2023A-06756-CHC-ROC · Registrar of Contractors · 2024-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Teri L Raynor,

COMPLAINANT

v.

SLS Custom Remodels LLC

License No. ROC 341323,

RESPONDENT

No. 2023A-06756-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 12, 2024 and continued on March 22, 2024

APPEARANCES: Teri Raynor appeared on her own behalf. Lawrence Felder appeared as counsel on behalf of Respondent. Steven Shamblen appeared as principle and authorized agent on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein. Complainant’s Exhibit A was admitted. Respondent’s Exhibits 1 through 14 were admitted.

_____________________________________________________________________

FINDINGS OF FACT

SLS Custom Remodels LLC (Respondent) is the holder of License No. 341323 issued by the Arizona Registrar of Contractors (Registrar).

Teri Raynor (Complainant) entered into a contract with Respondent for a remodel of her primary residence. As part of that remodel, Respondent provided the labor to install new vinyl flooring throughout the home.

On or about June 14, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the Complaint to Investigator Clifford Corlett. After a jobsite inspection, Investigator Corlett issued a written directive, dated July 17, 2023, 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 or before August 17, 2023.

. . . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Concerned about raised edges and or curling of the vinyl planks.

Investigator’s Observation: LVP installation appeared fairly typical. This house has major light sources (windows) front and rear that allow a great deal of light to shine across the flooring exaggerating the plank joints. There were some plank end joints that appeared to have not properly snapped together. Not all edges were properly spaced for floor movement/expansion.

RESPONDENT SHOULD PROPERLY CORRECT THE IMPROPERLY "SNAPPED" END JOINTS AND INSPECT AND CORRECT ANY/ ALL SUBSTANDARD EXPANSION GAPPING.

***NOTE*** RESPONDENTS CONTRACT FOR FLOOR INSTALLATION WAS FOR LABOR AND THE ROC'S DIRECTIVE IS FOR LABOR ONLY. RESPONDENT NOT REQUIRED TO PROVIDE MATERIAL.

. . . . .

Compliance Item: 4 - Dryer vent to garage.

Investigator’s Observation: Code and manufacturers requirements are for the dryer exhaust to be vented outdoors.

RESPONDNET SHOULD CORRECT BY APPROPRIATE METHODS.

. . . . .

Compliance Item: 7 - Tile sticking out not even.

Investigator’s Observation: Tile on kitchen backsplash has some excessive lippage.

RESPONDENT SHOULD CORRECT BY APPROPERIATE METHODS.

. . . . .

Compliance Item: 8 - Multiple plugs and outlets sticking out, crooked, loose.

Investigator’s Observation: Outlets and cover plates should be straight, and properly secured so as not to easily move.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

. . . . .

Compliance Item: 11 - Bathroom wall by old safe is cracking.

Investigator’s Observation: Drywall patch in master bath is cracking. RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS MATCHING SURROUNDING AREAS AS CLOSELY AS POSSIBLE.

. . . . .

Compliance Item: 12 - Bathroom master shower is chipping.

Investigator’s Observation: Master bath existing shower was refinished with a new "coating" That coating is failing at drain. There were some “chips", however there is no way for the ROC to determine when or how the chips may have occurred.

RESPONDENT SHOULD CORRECT THE PEELING FINISH AT SHOWER DRAIN MATCHING THE SURROUNDING AREA AS CLOSLY AS POSSIBLE.

. . . . .

Compliance Item: 13 - Master bathroom paint.

Investigator’s Observation: Master bath paint cut in is noticeable.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

All errors contained in original.

Following the issuance of the written directive, Respondent corrected six of the seven compliance items to satisfaction. After the deadline in the directive expired, Investigator Corlett conducted a compliance jobsite inspection (CJSI) and found that only Item #1 was not corrected to meet the Registrar standards.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Corlett testified consistently with his written directive and with his CJSI report and corresponding photographs dated September 28, 2023.

Investigator Corlett testified that the only issue that remained after the CJSI was that the end butts on the flooring were not properly snapped and that there was one splinter on one of the floor planks that needed repairing. He further testified that this splinter was either not present or not pointed out by Complainant at the original jobsite inspection; therefore, it was not contained within his original written directive. Investigator Corlett further testified that he did not know how the splinter occurred, but that it was approximately 1/16” in width and less than 1” in length. Investigator Corlett testified that Complainant supplied the materials and that Respondent was only hired for labor in this case. Additionally, Investigator Corlett testified that, for the most part, the floor looked like typical vinyl plank flooring.

Complainant called David Zack, a certified independent third-party floor inspector, to testify on her behalf. Mr. Zack testified that he conducted a floor inspection on January 29, 2023. At that inspection, Mr. Zack conducted moisture testing and checked for relative humidity and floor temperatures. Additionally, Mr. Zack testified that he observed that the plank end joints were separated in numerous areas and that approximately 25% - 30% of the end joints were not flush. This meant that one side was raised higher than the other.

Mr. Zack further testified that he tested the left over material to see how the material performed outside of the environment. He stated that when this left over material was tested, he observed that the joints were also raised and were not flush after making the connections according to manufacturer guidelines. Therefore, he concluded, that the cause of the improper connections in the planks was attributed both to improper installation and material defects.

Mr. Zack opined that the potential substrate moisture from the sub-flooring could have contributed to the improperly connected end joints. He stated that the substrate moisture content was unknown because no moisture testing was conducted as required by manufacturer guidelines.

Complainant called Robin Perry, an independent adjuster/inspector with The Floor Doctor, to testify on her behalf. Mr. Perry testified that his findings were consistent with that of Investigator Corlett and Mr. Zack. He further opined, however, that he believed there was an issue with the sub-floor being uneven and that it was not properly addressed. Mr. Perry testified that he believed the installation guidelines were not followed, that the sub-floor had depressions in the concrete which caused the seams to break, and that if the sub-floor was brought to a level condition, the issues “would take care of themselves.”

Complainant testified on her own behalf and stated that Respondent did not do a moisture test as was required per manufacturer installation instructions. Complaint then read an excerpt from Complainant’s Exhibit A:

Installation

• According to the manufacturer’s installation instructions, the moisture emission from the concrete slab with high levels of alkalinity can affect the floor over time. The installer is responsible to determine if the concrete slab moisture emission and alkalinity are acceptable for the floor installation. The recommended moisture test (ASTM F-2170 or ASTM F-1869) of the sub-floor (concrete slab) was not performed prior to the installation. The relative moisture content of the sub-floor (concrete slab) during the inspection was consistently at wet-range. The moisture emission from the sub-floor (concrete slab) caused the raised edges (curling) of the vinyl planks. This is an installation-related issue.

Steven Shamblen, principal and qualifying party, testified on behalf of Respondent. Mr. Shamble testified that he was not disputing that there were conditions that needed to be addressed. He testified that, regardless of whether the issues identified were caused by material or workmanship issues, Respondent had always been willing and able to make attempts to correct the outstanding issues.

Mr. Shamblen further testified that he did not think he needed to do moisture testing based on the age of the home and the climate in which the home was situated. He further testified that he was not given an opportunity to fix the splinter issue because it was not identified in the original written directive and was only identified at the time of the CJSI.

With regard to the end butts not properly connecting, Mr. Shamblen testified that he instructed his apprentice to “hit every joint” in the home to make sure it was properly connected. He further testified that there was one area in the home where he attempted to glue the floor because, in order to access that particular plank, Respondent would have had to remove up to 50% of the back room flooring and there was not enough left over material to replace the floor once removed.

Administrative notice is taken of Respondent’s prior License record on March 22, 2024. Such prior License record reflects that Respondent’s License No. 341323 was first issued on October 20, 2022 and is currently active. Such prior License record also reflects that there were no other open complaints and one previous resolved/settled complaint 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.”

Respondent was not given an opportunity to address the splinter as identified in the CJSI Report. The CJSI was the first time the splinter was mentioned and this occurred after the compliance deadline had passed. Additionally, Complainant did not establish that the splinter was caused by Respondent. With regard to the splinter issue, no violation is found.

With regard to the end butts not properly connecting, the evidence established that Respondent’s work was not in conformity with the Registrar’s standards. The evidence established that, at a minimum, Respondent did not conduct a moisture test as called for in the manufacturer guidelines. Additionally, Complainant met the standard of proof through the testimony of Mr. Zack that improper installation at least contributed to the improper connections in the end butts of the planks. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

The evidence established that Respondent attempted to complete the corrective work, but did not successfully complete the corrective work following the written directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. 341323 for a period of 1 day.

It is further recommended that the Registrar require Respondent to pay the sum of $150.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 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, April 11, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Teri L Raynor

[email redacted]

Lawrence Felder, Esq.

[email redacted]

By: OAH Staff