Final agency action regarding decision below:
AACCEPEDIT minor text correction the ROC adopts the ALJ's recommended order with modifications./rjr
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
LYNDA MAZE and AUBREY MAZE,[1]Complainants,
v.
License No. 086526, Class C-08 of
FLOORS UNLIMITED INC (CORP),
Respondent. / No. 09F-6222-ROC
ADMINISTRATIVE
LAW JUDGE DECISION
HEARING: February 25, 2010 at 8:00 a.m.
APPEARANCES: Complainant Aubrey Maze appeared on his own and his wife Lynda Maze’s behalf; Respondent Floors Unlimited Inc. appeared through its President, John Joseph Marsh.
ADMINISTRATIVE LAW JUDGE: Diane Mihalsky
______
FINDINGS OF FACT
Background and Procedure
1. On June 4, 1990, the Registrar of Contractors issued License No. ROC086526, Class C-08 for residential floor covering to Respondent Floors Unlimited Inc., a corporation.
2. On June 4, 2009, the Registrar received a complaint from Complainant Lynda Maze that, among other things, the Brazilian maple hardwood floor that Respondent had installed in Complainant’s house had cupped and separated, that the filler that Respondent used did not match the floor, and that the gaps caused by separation had caused nailheads to pop out of the floor.
3. The Registrar referred the complaint to Respondent for its immediate attention.
4. The Registrar’s Inspector Phil Coscia performed a jobsite inspection and, on July 30, 2009, issued a Corrective Work Order (“CWO”) to Respondent, directing him within fifteen days to correct by appropriate means the following:
The hardwood floor was found to have the following problems or defects:
1. Many planks appear un-flat due to cupping of the floor in the past.
2. There are nails visible in some planks that need to be set and filled.
3. Gaps between many planks exceed 1/32” in width.
4. Wood filler has loosened and separated from planks.
5. Areas of Flooring do not appear to lay flat to the substrate.
Contractor should correct the above by the appropriate means.
5. On August 5, 2009, the Registrar received Complainant’s request for hearing.
6. On October 21, 2009, the Registrar issued a Citation and Complaint against Respondent’s license, charging violations of A.R.S. § 32-1154(A)(23) and (3) (namely A.A.C. R4-9-108).
7. Respondent timely answered the complaint, denying any statutory violations and affirmatively alleging that, although the floor had been installed correctly, conditions at the jobsite had caused the floor to shrink and cup.
8. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a fair hearing.
9. A hearing was held on February 25, 2010. Inspector Coscia testified.
10. Complainants presented the testimony of three witnesses: (1) Complainant Mrs. Maze; (2) Art Gramer, who had been employed by Mission Hardwood Floor, License No. ROC250168, Class K-64, had been trained by the National Wood Floor Association (“NWFA”) in inspect wood floors, had inspected Complainants’ wood floor, and had prepared a report on the causes of its failure; and (3) Kevin Howard, the president of Howard Air, License No. ROC091675, Class C-39R, the air conditioning subcontractor on the project. Complainants submitted eight exhibits.
11. Respondent presented the testimony of two witnesses: (1) Lee Fry, its employee who had installed the floor at Complainants’ house; and (2) Richard Fimbres, the Senior Sales Representative for Arizona for Galleher, Inc., which had supplied the floor to Respondent for installation and who had inspected the installed floor in September or October 2007. Respondent also submitted eight exhibits.
Additional Evidence
12. On or about March 21, 2007, Respondent contracted to install a Brazilian maple hardwood floor over more than 2,500 square feet in Complainants’ residence. The main floor of the residence is built over a basement. The wood flooring that Respondent installed in the basement was not at issue in this matter. The wood flooring that is at issue was installed over a plywood subfloor, not a concrete slab.
13. The wood flooring that Respondent installed was not an engineered system and consisted of 5” solid wood planks that are approximately 3/4” thick.
14. Both Respondent’s and Complainants’ witnesses stressed to the importance of acclimation. For 10-14 days before a floor is installed, it needs to be kept in house under conditions that approximated the temperature and, especially, humidity that would be maintained in the house after it was occupied. Once the floor was installed, such conditions would need to be maintained, even if no one was living in the house.
15. The floor was delivered to Complainants’ house on or about March 26, 2007. Complainants shut the house and ran the air handlers to acclimate the floor.
16. Although Respondent recommends that homeowners who install wood floors also install humidifiers, Complainants did not install a humidifier as part of their air conditioning system.
17. On or about April 11, 2007, Respondent began the process of installing the hardwood floor at Complainants’ house. Mr. Fry testified that, when the floor was installed, the moisture content of the wood flooring and the subfloor was approximately 6%, which was within the tolerance to which the flooring had been milled.
18. Mr. Fry testified that, after the floor was installed and before it was sanded and sealed, Respondent had to leave the floor to allow other trades to perform work, which allowed further acclimatization. When Respondent sealed the floor, it has been in Complainants’ house for 17 days, which exceeds NHWA recommendations.
19. Inspector Coscia testified that, from an industry standpoint, wood floors should be acclimated where they will be installed for 10 to 14 days.
20. Mr. Gramer testified that Brazilian maple is a dense oily wood, which should not be installed until the flooring is within 2% of the moisture content of the subfloor. Mr. Gramer testified that it could take up to four months for a Brazilian maple floor to acclimate.
21. Complainants lived in the house over the summer of 2007. They ran the air conditioner continuously.
22. In late September or early October 2007, Complainants’ job superintendent Tim Rowe informed Respondent that the floor was cupping.
23. All the witnesses agreed that cupping in a hardwood floor results from swelling of the wood, which is most often caused by excess moisture in the wood, or at least a moisture level that exceeds the moisture level at the time of installation.
24. In late September or early October 2007, Mr. Fimbres inspected the floor on behalf of supplier Galleher, Inc. Mr. Fimbres testified that he used a hydrometer to measure the humidity in the air at the house at 56%. He could feel the humidity. The moisture in the subfloor was fine; the moisture at the top of the flooring was 7-8%.
25. Mr. Fimbres testified that he did not locate any leak or source of water. Because the floor was cupping throughout the main level, he felt that the source of humidity was in the air.
26. Mr. Fimbres testified that Mr. Rowe then contacted the subcontractor who installed the air conditioner, who then made adjustments to the system to remove excess humidity.
27. Mr. Howard, the qualifying party and president of the air conditioning subcontractor, testified that he responded to a call concerning high humidity on Complainant’s house in the fall of 2007. Within twenty-four hours, he responded and measured the humidity in the main level of the home at 38%, which is within an acceptable range. If the humidity were at 56%, it would be at a dew condition, which would have left water streaks on the wall. Mr. Howard testified that he did not observe such conditions at Complainants’ house.
28. Mr. Howard testified that he then went through inspecting the air conditioning system. Because the air conditioning system appeared to be working according to design, he made no adjustments.
29. When the floor had swelled and cupped, filler had been pushed from between planks. In December 2007, Mr. Rowe reported to Respondent that the hardwood floor had “laid down” and shrunk. The drying and shrinkage continued until May 2008. The current condition of the floor was described in Inspector Coscia’s CWO.
30. On May 15, 2008, Mr. Gramer inspected the floor and, on June 3, 2008, issued a report of his inspection. Mr. Gramer opined that Respondent had not allowed sufficient time for acclimation. Mr. Gramer recommended that the floor be sanded and refinished and that darker filler be used.
31. Respondent admitted that the current appearance of the floor does not meet the Registrar’s workmanship standards. Respondent’s qualifying party Mr. Marsh argued that the floor met applicable standards when it was installed and that, after a flooring contractor leaves a jobsite, it has no control over conditions at the jobsite.
32. Complainants argued that they had hired a professional to install the floor and had relied upon Respondent’s advice in maintaining the floor.
33. The Registrar’s record shows that Respondent’s license is current and in good standing. This appears to be the only complaint pending against the license.
CONCLUSIONS OF LAW
1. The matter lies within the Registrar’s jurisdiction.[2]
2. Complainants bear the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4]
3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 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.”[6]
4. Complainants have borne their burden to establish that the appearance of the floor does not comply with the Registrar’s standards and the floor failed within the 2-year warranty period imposed by A.R.S. § 32-1155(A).
5. Although Respondent suggested that Complainants’ failure to maintain consistent environmental conditions at the house caused the floor to fail, the evidence of excessive humidity in September or October 2007 was equivocal. Most people who live in Phoenix would find a 56% humidity level extremely uncomfortable if not downright oppressive. Respondent therefore has not borne its burden to establish that Complainants failed to maintain consistent conditions in the house or that their failure caused the floor to fail.[7]
6. Complainants therefore have established that Respondent violated A.R.S. § 32-1154(A)(23)[8] and (3)[9] in its installation of the Brazilian maple hardwood floor at Complainants’ house.
RECOMMENDED ORDER
In view of the foregoing, on the effective date of the Registrar’s final order, it is recommended that the Registrar suspend License No. ROC086526, Class C-08 previously issued to Respondent Floors Unlimited, Inc. until Respondent provides proof that it has corrected in a professional and workmanlike manner the conditions in the hardwood floor that were noted on the June 30, 2009 CWO.
It is further recommended that the Registrar not suspend Respondent’s license and, instead, close Case No. 09-6222 if, on or before the effective date of the Registrar’s order, Respondent has provided written proof that it has corrected in a professional and workmanlike manner the conditions in the hardwood floor that were noted on the June 30, 2009 CWO.
It is further recommended that the Registrar order Respondent to pay the sum of $250.00 as a civil penalty pursuant to A.R.S. §32-1154(D). The failure by Respondent to pay the entire amount of the civil penalty, on or before thirty-five days following the effective date of the Registrar’s Order, shall result in the automatic suspension of Respondent’s contractor’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. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered.
If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification.
Done this day, March 9, 2010.
/s/ Diane Mihalsky
Administrative Law Judge
Transmitted electronically to:
William A. Mundell, Director
Registrar of Contractors
2
[1] Aubrey Maze is Linda Maze’ husband and the co-owner of the house where Respondent installed the floor at issue. At the hearing, at Complainant’s request, the Administrative Law Judge amended the caption to add Dr. Maze as a party complainant.
[2] See A.R.S. § 32-1101 et seq.
[3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).
[4] See A.A.C. R2-19-119(B)(2).
[5] Morris K. Udall, Arizona Law of Evidence § 5 (1960).
[6] Black’s Law Dictionary at page 1220 (8th ed. 1999).
[7] See A.R.S. § 32-1155(C)(2) (providing that the Registrar should not issue a citation if “[t]he contractor’s work has been subject to neglect, modification or abnormal use.”).
[8] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.”
[9] This statutory subsection 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.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”