ALJDEC - Licensing

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

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Fred McDole,

COMPLAINANT,

v.

Dove Mountain Epoxy Floors LLC,

License No. ROC 345883,

RESPONDENT.

No. 2025A-01396-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

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

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.

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.”

On or about February 24, 2025, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work.

The Registrar assigned the complaint to Investigator John Smith, who conducted a noticed jobsite inspection on April 3, 2025, and Respondent was present. 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.

Respondent did not perform any work on the project; accordingly, Investigator Smith did not perform a compliance inspection.

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).

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

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

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 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.

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.

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.

Investigator Smith testified that he had not seen manufacturer guidelines that approved application without acetone.

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.

Investigator Smith testified that Respondent sought guidance about how to correct the issues, but that the Registrar did not provide such guidance.

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.

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.

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. He testified that Complainant decided epoxy was too expensive, and they agreed on a grind-and-seal floor, using the Product.

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.

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; 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.

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.

Mr. Copp testified that he requested additional guidance from Investigator Smith, but no additional guidance was provided.

Mr. Copp testified that Complainant was hostile toward him and his employees. He testified that his employees did not feel safe going back.

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

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. Respondent bears the burden of proof to establish an affirmative defense 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.”

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 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. 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.

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.

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.

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

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.

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.

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.” 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 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.

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.

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.

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.

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.

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.

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).

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).

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.

“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.”

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

Registrar of Contractors

Dove Mountain Epoxy Floors LLC

[email redacted]

John Smith

[email redacted]

Fred McDole

[email redacted]

Joshua D. Kalanick

Davis Miles PLLC

[email redacted]

By: OAH Staff