ALJDEC - Licensing

2023A-12896-CHC-ROC · Registrar of Contractors · 2024-04-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEALTHY HOME FLOORING LLC,

COMPLAINANT

v.

Sunrise Flooring Inc.

License No. ROC 215620,

RESPONDENT

No. 2023A-12896-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 20, 2024

APPEARANCES: Thomas Moring appeared on behalf of Complainant HEALTHY HOME FLOORING LLC. Cesar Aguilar, Owner and Qualifying Party, appeared on behalf of Respondent Sunrise Flooring Inc.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors.

_____________________________________________________________________

FINDINGS OF FACT

Sunrise Flooring Inc. (Respondent) is the holder of License No. 215620 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 4, 2022, HEALTHY HOME FLOORING LLC (Complainant) entered into a contract with a homeowner for the installation of flooring. Complainant subcontracted with Respondent for the project.

On or about November 8, 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 Daniel Edwards. After a jobsite inspection, Investigator Edwards issued a written directive 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 January 5, 2024.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - Floors are peaking though out

Investigator’s Observation: Flooring is exhibiting significant peaking throughout all areas of the home. Many areas exhibit peaking so significant that the planks are peaking >3/16".

Flooring appears to be Shaw Floors Anvil Plus flooring in Greige Walnut. Per contractor, flooring has been installed directly on top of the concrete subfloor without the use of a moisture barrier. No evidence that any moisture testing of the concrete has been provided.

Per all parties, it is noted that the complainant experienced a leak at the kitchen refrigerator and some portions of the flooring were repaired/replaced by others. Due to this, any areas reinstalled by other contractors have been modified and the Registrar is unable to order respondent to perform repairs to these areas.

Respondent shall correct all affected flooring in any other areas of the home by appropriate means. Complainant is responsible to provide access to any areas requiring corrective action.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Following the issuance of the written directive, Respondent requested an extension of the compliance deadline.

Investigator Edwards extended the deadline to January 5, 2024.

After the extended deadline expired, Investigator Edwards was notified no corrective work had been performed.

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).

Investigator Edwards testified that he did not inspect the kitchen area that had previously been repaired by a different company after the leak. Investigator Edwards stated that the work throughout the home had significant deficiencies that could not be attributed to the repair work. Investigator Edwards stated he did not remove any baseboards during the jobsite inspection because the Registrar does not require destructive testing. Investigator Edwards indicated that if the homeowner wanted to remove a baseboard during the jobsite inspection, he would have made observations of any issues related to that.

Loren Nelson, Controller, testified that the flooring throughout the home had significant peaking. Mr. Nelson stated that Complainant hired someone else to perform the remedial work for the homeowner after Respondent failed to do the work.

Mr. Aguilar testified that he did not agree with Investigator Edwards findings regarding the peaking. Mr. Aguilar also questioned why Investigator Edwards did not remove a baseboard to check if appropriate expansion gaps were in place. Mr. Aguilar stated that, because the flooring was all connected, once another company touched any of the flooring, Respondent was not responsible for the project’s issues. Mr. Aguilar questioned whether the leak in the kitchen introduced moisture under the flooring that caused the problems. Mr. Aguilar asserted that the reached out to Complainant regarding the written directive, but did not provide any documentation of his attempts.

Administrative notice is taken of Respondent’s prior License record on April 9, 2024. Such prior License record reflects that Respondent’s License No. 215620 was first issued on January 25, 2006, and is active. Such prior License record also reflects that there were no other open complaints and one prior resolved/settled complaint against Respondent’s license.

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 Vazzano 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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. While portions of the project had been corrected by a different company after a leak, no evidence was presented to establish that the leak affected the rest of the project. The peaking in the flooring was observed throughout the project, not just near the kitchen. 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 that Respondent did not attempt 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).

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. 215620 for a period of two 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)(5), 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 9, 2024.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

HEALTHY HOME FLOORING LLC

[email redacted]

Daniel Edwards

[email redacted]

Sunrise Flooring Inc.

[email redacted]

By: OAH Staff