ALJDEC

00F-2623-ROC · Registrar of Contractors · 2001-05-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 16 May 2001 APPEARANCES: Complainant: William and Mary Lynn Gentry. Respondent: Paul Marshall, Superintendent of Tri-Mar Construction, Inc.; Ann Marshall, Vice President of Tri-Mar construction, Inc. Others: Bob Mechsner, Inspector, Arizona Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A), specifically subsection 7, 23 & 3 (namely AAC R4-9-108), by improperly installing tile and failing to correct the condition pursuant to an ROC Corrective Work Order.

FINDINGS OF FACT 1. Complainant demand that Respondent replace the flooring in their home. As part of a U.S. Department of Housing and Urban Development (HUD) rehabilitation project administered by the City of Scottsdale, Respondent undertook certain repairs to Complainant’s home, including the laying of vinyl floor covering. The laying of the vinyl was subcontracted by Respondent to Coleman Interiors, who did the actual laying of the floor covering. 2. During the course of laying the new vinyl, the old linoleum on the floor of the home was taken up, down to the bare concrete slab. Next, a brown wooden textured sheet vinyl made by Mannington Industries (the “Sheet Vinyl”) was laid down. However, during the course of moving furniture back into the kitchen, the new vinyl was torn and buckled due to dragging the kitchen table across the vinyl before the mastic adhesive had dried. 3. Complainant was dissatisfied with the torn vinyl, and felt that it wasn’t adequate for their purposes. Respondent agreed to cover the floor with something different. A vinyl composition tile made by American Tile Inc. (the “Tile) was selected and laid over top of the Sheet Vinyl. The job was completed on 2 June 1998. 4. About a year later, Complainant began to notice that the Tile was breaking up next to the kitchen table where Mrs. Gentry normally sat in an office chair equipped with hard roller/casters. The chair has five legs, each equipped with a caster consisting of two hard plastic/steel wheels, approximately .33” wide. Mr. Mechsner inspected the Tile in December 1999 pursuant to an ROC complaint Respondent filed against Coleman Interiors. At the time, Mr. Mechsner felt the Tile was failing due to the wear and abuse it was subjected to by Mrs. Gentry’s office chair and the hard casters. He stated the Tile was breaking up next to the kitchen table where Mrs. Gentry sat in her office chair. Mrs. Gentry testified she weighed approximately 180-200 lb. at the time, and sat in the chair much of the day, rolling about the kitchen on the chair. She also stated that she ceased using the office chair in the kitchen upon Mr. Mechsner’s recommendation in December 1999, but after 18 months of using the office chair in the kitchen, the damage had been done. She switched to a wheelchair with inflatable rubber tires. 5. However, upon the filing of the instant case, Mr. Mechsner re- inspected the Tile in July 2000. At that time he reviewed the installation instructions for the Tile, and concluded that the Tile cannot have a flexible underflooring, and that the underlying Sheet Vinyl provided too much flexibility, causing the Tile to flex excessively and break up. An ROC corrective work order was issued on 17 July 2000 ordering Respondent to correct the problem. 6. The Tile installation instructions state that the Tile may be laid over existing resilient tile, provided the existing floor covering is not cushion-backed or foam-backed. According to the Sheet Vinyl manufacturers specifications, the Sheet Vinyl is felt backed with 25 mils (.25 millimeters) of felt, 25 mils of vinyl composition, and a 10 mil wear layer, and is not considered to be cushion-backed. In addition, the Tile may be laid on wooden subfloors with a minimum .25” thickness. Finally, the maximum load limit for the Tile laid using these specifications is 75 PSI. 7. Photographs provided by both parties show that the area affected by the Tile breakup is about 10-12 Tiles (10-12 square feet). The remainder of the entire Tiled area (several hundred square feet) appears unaffected, although Mr. Mechsner noted some crazing in some of the Tile in the hallway. A comparison of photos taken in July 2000, with photos taken in May 2001 indicate that the Tile breakup area has not increased. Mrs. Gentry confirmed that most of the damage occurred in the first year of use.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. Resolution of this case rests upon the determination of a single factual issue: Was the damage suffered by the Tile floor next to Complainant’s kitchen table the result of any faulty installation of the Tile by Respondent? In this situation, the evidence adduced at hearing points to a negative answer to the question. The Tile manufacturer clearly states in their installation instructions that the Tile may be laid over other resilient floor covering, save cushion or foam backed coverings. The Sheet Vinyl underlying the Tile is not one of the prohibited underlying floor coverings. In addition, the instructions indicate the Tile may also be laid over other slightly flexible subflooring, such as wood. 3. The key to understanding what happened in this case lies with the office chair used by Mrs. Gentry. The Tile only has a 75 PSA load limit. In most residential usage, this is more than adequate. However, Mrs. Gentry’s chair was designed for an office environment, and uses caster wheels that, when loaded with a 180-200 lb. human being, could easily exceed the 75 PSI load limit of the Tile. Each caster has two .33” wide hard wheels. On a hard surface, each wheel would only cover an area measuring .33” by that portion of the circumference of the wheel that contacted the floor. On a soft office carpet, the portion of the circumference of the wheel contacting the carpet might be as wide as .5”. But on a hard tile floor, that portion reduces drastically, to probably only .125” wide. In such an instance, the total surface area touching the floor would only be 10 x .33” x .125 “ = .4125 square inches. Even if the portion of the circumference of the wheel touching the hard floor was .5” (a generous exaggeration), the result would only increase to 1.65 square inches (this is why most furniture has flat loadbearing surfaces: It spreads the weight out over a greater surface). In such a situation, a person weighing 180 lb.. sitting in such a chair would be exerting a pressure of nearly 110 PSI, far in excess of the maximum limit for the Tile. Repeated rolling over the Tile with such a pressure would, over time, clearly overload, stress and fracture the Tile, causing it to fail and breakup. Couple this analysis with the empirical observation that the only place the Tile failed (which it did within one year) was where Mrs. Gentry rolled around on her office chair, and the fact that continued failure of the Tile ceased once she stopped using the office chair, leads to the conclusion that it was the Tile being overloaded by the office chair, and not any fault of the Tile or its installation by Respondent, that caused the Tile to fail. 4. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant has failed to sustain the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated ARS §32- 1154(A).

RECOMMENDED DECISION It is recommended that the ROC find in favor of the Respondent in this case and that this case be dismissed.

Done this day: 31 May 2001

______________________________________ Maurice McWhirter Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Registrar of Contractors Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826