PDF copy: ALJDEC - Licensing

2025A-01396-CHC-ROC · Registrar of Contractors · 2026-02-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Fred McDole, No. 2025A-01396-CHC-ROC COMPLAINANT, v. ADMINISTRATIVE LAW JUDGE Dove Mountain Epoxy Floors LLC, DECISION License No. ROC 345883, RESPONDENT.

HEARING: December 4, 2025; February 3, 2026. APPEARANCES: For Complainant: Fred McDole. For Respondent: Joshua Kalanick. For the Registrar of Contractors: John Smith. ADMINISTRATIVE LAW JUDGE: Samuel Fox EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing Packet, submitted by the Registrar of Contractors. Complainant’s Exhibits excluding 33 and 41. Respondent’s Exhibits. _____________________________________________________________________ FINDINGS OF FACT 1. Dove Mountain Epoxy Floors LLC (Respondent) was the holder of License No. 345883 issued by the Arizona Registrar of Contractors (Registrar) on June 27, 2023. 2. On or about October 28, 2024, Fred McDole (Complainant) entered a contract with Respondent for a UV-stable, polyurethane-gloss finished garage floor, ground “to 100 grit.”1 3. On or about February 24, 2025, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work.2

Not. of Hr’g, at 10–14. 2 Id. at 10–11, 113. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 4. The Registrar assigned the complaint to Investigator John Smith, who

conducted a noticed jobsite inspection on April 3, 2025, and Respondent was present.3

Following the inspection, Investigator Smith issued a Written Directive From the Registrar

to Respondent on April 14, 2025, and an Amended Written Directive From the Registrar

on May 30, 2025, requiring Respondent to remedy the identified violations by the

appropriate means.4

5. Respondent did not perform any work on the project; accordingly,

Investigator Smith did not perform a compliance inspection.5

6. On July 2, 2025, the Registrar issued a Citation against Respondent, finding

cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), specifically A.A.C.

R4-9-108(A), and A.R.S. § 32-1154(A)(22).6

7. Respondent submitted an Answer to the Citation on July 21, 2025, denying

all the allegations.7

8. The Registrar referred the matter to the Office of Administrative Hearings,

an independent state agency, for an evidentiary hearing.

9. Investigator Smith testified in support of his findings. Regarding Complaint

Item 2, he testified that the top coat was chipping, flaking, scratching, staining, and had

inconsistent shine and texture. He also testified that Respondent incorrectly applied the

Premera floor coating products (the Product): the product manufacturer’s instructional

videos required using acetone prior to applying the product. He believed the deficiencies

were a result of not using the acetone. Regarding Complaint Item 4, he testified the dye

stain had yellowed, particularly outside the garage. Regarding Complaint Item 6, he

testified that the coating was flaking, likely due to improper application of the product.

Regarding Complaint Item 7, he testified that the color was fading along the outside of the

3 Id. at 17–93. Id. at 96–111. 5 Id. at 112. Id. at 113–117. 7 Id. at 213–214.

garage. Regarding Complaint Item 8, he testified that there were indications that the

concrete was not properly ground, including tape residue, ridges, and grinding marks in

the carport area. Regarding Complaint Item 10, he testified that the floor was staining,

likely due to improper application of the product, and that the stains at issue were on top

of the product, which had a noticeably different appearance than preexisting stains.

Regarding Complaint Item 11, he testified that there was inconsistent texture and sheen

throughout the area. Regarding Complaint Item 12, he testified areas were yellowing.

Regarding Complaint Item 13, he testified that the gloss sheen and texture were

inconsistent throughout the area.

10. Investigator Smith received a letter from Respondent on June 17, 2025,

claiming to be from the product manufacturer. However, he did not find it credible

because (1) it was not dated or signed, (2) it referred to standards, but did not include

those standards, (3) it did not address the videos that require using acetone, (4) it did not

match his observations, specifically it failed to acknowledge the excessive grinder marks

and obvious discoloration. He testified his belief that the author did not visit the site or

have knowledge of the project.

11. Investigator Smith reviewed a second letter, and he testified that it would

not have changed his Directive. He testified it confirmed that the product had faded and

that there was no evidence of mechanical surface preparation.

12. Investigator Smith testified that he had not seen manufacturer guidelines

that approved application without acetone.

13. Investigator Smith testified that he did touch the floor in several areas. He

testified that he could feel the tape residue, and he did not think that the tape stained the

floor. He thought the floor was fairly clean. Investigator Smith did not find that the sheen

and texture issues were caused by dirt on the floor.

14. Investigator Smith testified that Respondent sought guidance about how to

correct the issues, but that the Registrar did not provide such guidance.

15. Investigator Smith testified that the carport area was older concrete than the

rest of the garage, and that area is the location of the 30-grit grinder marks.

16. Complainant testified in support of Investigator Smith’s findings. He

testified that the contract called for 100-grit grinding, a brown-reddish color, and a stable

polyurethane gloss finish. He testified that they discussed an impact, stain, and scratch

resistant flooring because he was going to work on cars and motorcycles in the garage.

Complainant testified that he and Respondent discussed many different flooring products

and that Respondents said the Product used would work. He testified that he

independently researched the Product and believed it would work. Complainant testified

that he thinks the product manufacturer’s marketing is misleading because it makes the

product sound like a good impact resistant material, but apparently, it is not.

17. Steve Copp, Respondent’s owner, testified that Complainant originally

wanted an epoxy floor, and he told Complainant the epoxy floor would provide the

significant protection he wanted, but denied saying so about the Product.8 He testified

that Complainant decided epoxy was too expensive, and they agreed on a grind-and-seal

floor, using the Product.

18. Mr. Copp testified that he received training with the Product from the

manufacturer at a conference. The manufacturer trained that acetone was not

necessary, and vacuuming the concrete would be sufficient. He testified that he followed

the directions that the manufacturer’s training provided. Mr. Copp did not have written

directions from the manufacturer approving the trained method, but he did provide a letter

from the manufacturer’s representative confirming that acetone treatment was not

required.

19. Mr. Copp testified that the color used was the color agreed upon with

Complainant. He testified that Respondent scrapped up all the tape before grinding;

Complainant disagreed, testifying that Respondent said the product would provide the protection he wanted.

Respondent ground the floor to 100-grit, as demonstrated by photographs; and the

concrete had preexisting stains. He testified that the old concrete required additional

work: Respondent ground it with 30-grit and then with 100-grit, but a small segments

could not be ground with the 100-grit, leaving the identified marks. He testified that the

perceived inconsistent sheen and texture was because the floor was dirty.

20. Mr. Copp testified that he told Complainant the dye should end within the

garage because the Arizona sun fades everything, but Complainant wanted the dye to

continue to the edge.

21. Mr. Copp testified that he requested additional guidance from Investigator

Smith, but no additional guidance was provided.

22. Mr. Copp testified that Complainant was hostile toward him and his

employees. He testified that his employees did not feel safe going back.

23. Administrative notice was taken of Respondent’s prior License record on

February 19, 2026. According to that record, Respondent’s License No. 345883 was

active and had one open complaint.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction.9

2. Complainant bears the burden of proof to establish Respondent’s statutory

violations by a preponderance of the evidence. Respondent bears the burden of proof to

establish an affirmative defense by a preponderance of the evidence.10

3. “A preponderance of the evidence is such proof as convinces the trier of

fact that the contention is more probably true than not.”11

4. For the purpose of this hearing, Respondent only had notice of the alleged

violations in the Citation. Accordingly, this Tribunal can only find violations of law that

See A.R.S. § 32-1101 et seq. 10 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). 11 MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960).

appeared in the Citation. For complaint-specific items, only alleged violations identified

by the Investigator and deemed uncorrected are noticed in the Citation: as stated in the

Citation, “[t]he Registrar investigated this matter and [found] cause to charge Respondent

with violation(s).” Where the investigator did not find cause to charge Respondent,

charges were not incorporated into the Citation.12 The Registrar’s process provides the

Respondent an opportunity to correct its deficient work by appropriate means; without that

opportunity, the alleged deficiency is not ripe for hearing.13

5. Contractors are expected to know how to perform their work in a

professional and workmanlike manner and in accordance with codes and standards.

The Registrar is not required to provide a contractor guidance about how to perform the

contractor’s work. Often, a contractor has multiple options for how to correct a

deficiency, and it is the contractor’s responsibility to make the determination and

perform the corrective work.

6. A contractor accepts the surface upon which they work. Prior to performing

work, a contractor should inspect the surface for flaws or defects that would affect the

work to be performed; if the surface is unacceptable, the contractor should call the defect

to the owner’s attention so that the owner can choose to pay for corrective work or for the

contractor to request a warranty disclaimer.14

7. A contractor is expected to use materials that are fit for their purpose,

including identifying defective materials and not using them. While a manufacturer may

be ultimately responsible for replacing unfit materials, a contractor is responsible for

12 See Casiano v. Tapatillo Plastering LLC, No. 2023A-12873 (Final Administrative Decision and Order at 1:19–25, 2:1–6). 13 Complainants are not without recourse for such issues. During the investigation and directive period, complainants may provide sufficient evidence of a violation and request an amended directive; after the investigation and directive period, complainants may request a reinvestigation or amendment to the directive or may submit another complaint and provide sufficient evidence. Complainants may also seek non-disciplinary remedies in another venue. Deeb v. Checks Epoxy, No. 2014A-3258 (ALJ Decision at 11:11-19); see also COLLECTION OF REPRESENTATIVE CASES AND AUTHORITIES, REGISTRAR OF CONTRACTORS, Feb. 2017.

using those materials and then, for processing warranty claims as part of the Registrar’s

complaint and Directive process.

8. When a contractor is going to deviate from applicable standards, it should

attain a specific wavier from a customer, notifying the customer of risks (such a waiver is

not appropriate in all situations). After a customer makes a change that requires a

contractor to either spend more money or deviate from applicable standards, the

contractor generally has several options, including: (1) bidding the amendment, attaining

a change order, and performing the necessary work, charging the customer for the

amended scope; (2) offering a work-around, notifying the customer about the associated

risks, and getting a waiver to deviate from applicable standards (when appropriate); (3)

attaining a change order and performing the necessary work, gratis; or (4) refusing to

accept the amended scope of work.

9. During the Directive Period, complainants do not have the right to dictate

how a contractor satisfies the Directive Compliance Items and remain in the Registrar’s

compliant process; however, they do have that right before and afterwards. When a

complainant refuses to allow a contractor to take the appropriate corrective action during

the Directive Period, the complainant effectively denies the contractor a meaningful

opportunity to correct their work, constituting a denial of access for the impacted Directive

Compliance Items. However, before and after the Directive Period, a complainant may

refuse access to a contractor.

10. Neglect, modification, or abnormal use of the contractor’s work are

affirmative defenses to allegations that the contractor failed to “perform work in a

professional and workmanlike manner or in accordance with any applicable building

codes and professional industry standards.”15 To establish the defense, a contractor

must demonstrate that the neglect, modification, or abnormal use could have been

material to creating the alleged deficiency of workmanship or industry standards or

15 A.R.S. § 32-1155(D).

materially impacted the work or cost required to correct the deficiency. Subsequent

work that has a de minimis impact on the issues alleged is not sufficient to establish the

affirmative defense.

11. Contractors are responsible for all their work, regardless of whether they

receive compensation for that work. Performing work incurs a responsibility to perform

that work competently and in compliance with applicable standards.

12. Respondent implied an argument for abnormal use, specifically that the

product was not designed for Complainant’s rough use. The record does not establish

a standard by which abnormal use should be measured for the Product. Regardless,

this argument must fail because the preponderance of the evidence supports that many

of the defects, such as scratching, flaking, and staining, were clearly within the expected

protection of the product, even if some of the activities resulting in chipping were not.

13. The preponderance of the evidence supports that Respondent improperly

applied the Product. The floor was not entirely ground to 100-grit and was not properly

cleaned. Respondent’s argument that photographs of a grinder/vacuum prove it was

properly done does not overcome the contradicting evidence, such as the second

Premera letter, inconsistent texture and sheen, tape residue, and oil staining after

application. It is plausible that failing to use acetone may have contributed to the

deficiencies, but the first Premera letter demonstrates that it was not required.16

14. The preponderance of the evidence supports that the flooring yellowed

and faded on the exterior of the garage but does not support that the wrong color was

used. Respondent’s arguments that it warned against that work and performed it for

free were not affirmative defenses.

Any manufacturer liability, manufacturing defect, training failure, or other related issues are outside the scope of this Tribunal.

15. The preponderance of the evidence supported that the floor had

inconsistent texture and sheen. Respondent’s argument that dust caused the visible

differences did not overcome the Investigator’s observations and touch-tests.

16. As detailed above, the preponderance of the evidence established that

Respondent failed to perform work in a professional and workmanlike manner in

violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).17

17. The preponderance of the evidence established that Respondent made no

effort to take appropriate corrective action following a written directive from the Registrar

in violation of A.R.S. § 32-1154(A)(22).18

18. Complainant and Respondent clearly had communication and cooperation

issues. A contract could have made a meaningful impact on how the process

proceeded. Contracts ensure that the service-providing contractor has a record of work

done and a documentary basis for payment; they also ensure that the service-receiving

party consents to work being done and amount charged for the service. Contracts can

also assist by creating a clear process for Change Orders and waivers, informing the

parties (and a court or tribunal) about changes and what the parties knew at the time.

19. “The registrar may impose a civil penalty of not to exceed $500 on a

contractor for each violation of subsection A, paragraph 22 of this section.” If a licensee

fails to pay the civil penalty, their license is automatically revoked “thirty days after the

effective date of the order providing for the civil penalty.” Additionally, any “person who

is or was named on a license. . . may not receive a new license under this chapter until

the entire civil penalty is paid.”19

A.R.S. § 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,” which includes the requirements in A.A.C. R4-9-108(A) to “perform all work in a professional and workmanlike manner.” 18 A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this 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.” 19 A.R.S. § 32-1154(E).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order,

the Registrar shall suspend for two days Respondent’s License No. 345883.

It is further recommended that the Registrar require Respondent to pay the sum of

$150.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

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, February 23, 2026. /s/ Samuel Fox Administrative Law Judge Transmitted by either mail, e-mail, or facsimile to: Tom Cole, Director Fred McDole Registrar of Contractors [email redacted]

Dove Mountain Epoxy Floors LLC Joshua D. Kalanick [email redacted] Davis Miles PLLC [email redacted] John Smith [email redacted]

By: OAH Staff