ALJDEC

01F-M1267-ROC · Registrar of Contractors · 2002-02-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2002. APPEARANCES: Leonard and Mary Little appeared on their own behalf. Respondent was represented by Gary Hogue. ADMINISTRATIVE LAW JUDGE: Gregory L. Hanchett _____________________________________________________________________ In this matter, Complainants Leonard and Mary Little (hereinafter Complainants) allege that Respondent Hogue’s Unlimited (hereinafter Respondent) has violated A.R.S. § 32-1154 (A)(3)(violation of any rule adopted by the registrar, namely, the requirement of performing in a workmanlike manner in conformity with A.A.C. R4-9-108), A.R.S. §32- 1154(A)(7) (committing a wrongful or fraudulent act that results in substantial harm to another), A.R.S. §32-1154(A)(15) (acting in the capacity of a contractor under any license in a name other than set forth in the license), and A.R.S. §32-1154(A)(23) (failure to comport with a corrective work order issued by the registrar). Based on the evidence adduced at the hearing, the following findings of fact, conclusions of law, and recommended decision are made. / / / FINDINGS OF FACT 1. Complainants entered into a contract with Respondent in 1998 to install carpet. The cost of the carpeting and installation was $4,084.08. Eventually, the determination was made that the carpet was defective. Respondent removed that carpet. Complainants then chose a new style of carpet which Respondent installed during late December, 2000. The parties agreed that Complainants would pay Respondent an additional $500.00 for the new carpeting. It was the installation of this second carpet that touched- off the issues that led to the instant case. 2. The installation of the second carpet was replete with workmanship violations. Among other things, carpet seams were visible, carpet seams were not correctly placed, and carpet was not properly adhered to the floor substrate. The workmanship violations were demonstrated through Complainant Mary Little’s testimony as well as the photos and video tape that Mrs. Little introduced into evidence at the hearing. 4. In addition, Complainants introduced a report from Joe Wabeke of Valley Flooring Inspections(admitted at the hearing as Exhibit #6). This report further demonstrates the installation defects and poor workmanship of the installation. In addition, this report notes “[t]he T-seam and the traffic lane saddle seams prohibit repair of the existing carpet without causing stretch in excess of the 1 to 1-1/2 % required.” 5. Complainant attempted many times to have these issues resolved by Respondent. Respondent made some efforts to correct these deficiencies, but according to Complainant Mary Little’s testimony, each attempt at repair only resulted in additional workmanship issues. 6. Complainants filed a complaint with the Registrar of Contractors on march 26, 2001. As a result of the complaint, the Registrar assigned Inspector Van Bagley to investigate the complaint. 7. On May 25, 2001, Inspector Bagley conducted a jobsite inspection of the carpet installation. Inspector Bagley concluded that certain portions of the carpet installation did not comport with the workmanship standards set forth by the Registrar. As a result, Inspector Bagley issued a corrective work order to Respondent to complete the following repairs to the carpeting: (a) Repair the carpet seam at the entry way door (the seam was overlapped), (b) Repair the carpet seam at the north wall of the living room(the seam was overlapped), (c) Repair the carpet seam at the east window of the living room(the seam was overlapped), (d) Repair the carpet seam at the entry to the hall on the west side of the living room(the seam was overlapped), (e) Repair the carpet seam in the middle of the hallway(the seam was overlapped), (f) Repair the carpet at the base of the door jambs of the master bedroom entry way(carpet pile pulled out of the backing), (g) Repair the carpet seam behind the door in the master bedroom (the seam was overlapped) (h) Repair the carpet seam to the north of the bed in the master bedroom (the seam was overlapped), (i) Repair the carpet seam in the southeast bedroom (the seam was overlapped)

8. Some efforts were made by Respondent to correct some of the deficiencies. These efforts created additional workmanship problems with the carpet installation. 9. The Complainants’ case was apparently closed by the Registrar for a period of time. It was subsequently reopened in August, 2001. As a result of the case being reopened, Inspector Bagley conducted a second job site inspection during August, 2001. As a result of this inspection, Inspector Bagley issued a second corrective work order on August 21, 2001. The new work order identified four areas of the installation that needed correction (1) re-stretch the carpet throughout the home, (2) repair the seam at the baseboard behind the living room couch, (3) repair the seam north of the entry door at the baseboard, and (4) repair the seam at the baseboard in the hallway. 10. Complainants did not allow Respondent to return to the jobsite after the August 21, 2001 corrective work order. Under the circumstances of this case, Complainants’ conduct is understandable. Complainants, after a two year fight with Respondent over installation issues, were understandably unwilling to let Respondent return to correct the deficiencies, since it appeared to them that Respondent’s workers could not competently repair the problems with the carpet installation. 11. The undersigned has reviewed and considered Respondent’s two year complaint history in arriving at the recommended decision in this matter. CONCLUSIONS OF LAW 1. A.R.S. § 32-1154(A) provides in pertinent part: A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: * * * (3). Violation of any rule adopted by the registrar. * * * (7). The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. * * * (15). Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license. * * * (23). Failure 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 written directive from the registrar.

2. Arizona Administrative Code R4-9-108 specifically states that “[a]ll work shall be done in a workmanlike manner.” Furthermore, the Registrar’s standards of workmanship for carpet installation note that “Seams should be tightly fitted with no gaps or overlaps in the seam” and that “Carpet seams placed in “T” configuration are unacceptable except where other methods are impractical.” 3. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990). 4. The evidence as demonstrated in Findings of Fact Paragraph Four, Seven , and Nine above establishes that Respondent violated A.R.S. § 32- 1154(A)(3) by failing to comply with the administrative requirement that work be performed in a workmanlike manner. 5. Because Respondent violated the workmanship standards of the Registrar, Complainants have demonstrated that Respondent committed a wrongful act in violation A.R.S. § 32-1154(A)(7). 6. The evidence adduced at the hearing fails to show that Respondent violated A.R.S. § 32-1154(A)(15). No evidence whatsoever was introduced on this issue at the hearing. 7. The evidence adduced at the hearing fails to show that Respondent violated A.R.S. § 32-1154(A)(23). 8. The undersigned has reviewed and considered Respondent’s two year work history in arriving at the recommended disposition of this case. In addition, the evidence adduced which shows that Respondent’s efforts to repair the carpet have only exacerbated the installation problems merits an order directing Respondent to hire an independent properly licensed carpet installer to complete the repairs that are recommended below. RECOMMENDED DECISION In view of the foregoing, it is recommended that Respondent’s Class C- License Number 0137434 shall be suspended upon the effective date of the final order in this matter until such time as the directives identified in the May 25, 2001 corrective work order (the nine items of correction identified in Findings of Fact Paragraph Seven above) are completed in accord with the minimum workmanship standards required by A.A.C. R4-9-108. It is further recommended, in light of Respondent’s past deficiencies in the installation of this carpet, the Respondent should be ordered to hire an independent and properly licensed carpet installation contractor to complete the repairs. It is further recommended that if written proof is provided to the Registrar on or before the effective date of the final order that the directives identified in the May 25, 2001 corrective work order have been completed in accord with the minimum workmanship standards required by A.A.C. R4-9-108, then no license suspension should take place. Instead, the citation and complaint issued in this matter should be closed. Done this day, February 27, 2002.

______________________________________ Gregory L. Hanchett Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002 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