ALJDEC

02F-L0019-ROC · Registrar of Contractors · 2002-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Tuesday, January 15th, 2002; 8:30 a.m. APPEARANCES: The complainant, Modular Technology, Inc., was represented by Mr. Stephen J. Anthony, attorney-at-law. The respondent, Carpet and Patio Grass, was represented by Mr. John R. Warren, Owner and President. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ The administrative hearing of this matter was held by the Office of Administrative Hearings, in Lake Havasu City, Arizona. Testimony was heard and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondent herein, Carpet and Patio Grass, is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class L-08 License number 130433. 2. The complainant, Modular Technology, Inc., contracted with the respondent for the respondent to install floor covering as a part of the construction of a new school in Lake Havasu City, Arizona. The floor covering was to be VCT (vinyl composition tile) and vinyl sheet flooring. The contract was executed in July of 2000. 3. Respondent installed the flooring from August 2nd, through August 6th, 2000, and the tile began to fail throughout the school as soon as it was laid. The tile was sliding and not staying in place. Respondent offered two explanations of why its work product failed, neither of which is convincing based on all the evidence. 4. First, respondent contends that leaky air conditioner units allowed water to accumulate during the crucial period when the tile material that was to affix the flooring to the sub-floor was setting. Second, respondent contends that the air conditioning was turned off during the crucial period, allowing the summer heat in the building to rise, which prevented the flooring from affixing itself to the sub-floor. 5. Respondent’s evidence included the testimony of their employee who delivered the VCT to the job-site on August 2nd, Mr. Mark Karoutas. According to Mr. Karoutas, when he arrived with the tile the outside air temperature was 112 - 115 degrees Fahrenheit, and there was no air conditioning on in the school. He said the school rooms were hotter than the outdoors. Mr. Karoutas did not remain on site for the installation, but departed after delivering the product. He did, however, testify that he returned to the site on August 4th, and 21st, and the air conditioning was not on at those times. 6. The manufacturer’s specifications call for the VCT to be installed in a room with an ambient air temperature no higher than 85 degrees Fahrenheit, when using certain adhesives specified by the manufacturer, and no higher than 100 degrees Fahrenheit otherwise. 7. The respondent employee in charge of the installation was a Mr. Basha. Unfortunately, for the sake of a well-developed record, he did not appear and testify at the hearing. 8. It is proven from the evidence that the respondent had a company policy in effect at the time of Mr. Basha’s work on this project which forbade employees from turning on a customer’s air conditioning without the customer’s prior approval. Respondent’s other evidence shows that its owner, Mr. Warren, did telephone the complainant’s project manager, Mr. Bob Mattheis, on August 2nd, or 3rd, when Mr. Basha was to begin work, and informed Mr. Mattheis that the air conditioning was off, and the room was too hot. The respondent’s other evidence includes Mr. Warren’s testimony that Mr. Basha did himself turn on the air conditioning, and lower the air temperature to an acceptable level before beginning to install. 9. Other evidence also proves that the air conditioning was on and the room air temperatures acceptable during installation. Mr. Basha was aware of the specified acceptable temperature, and would not have installed without attaining that range of temperature. 10. Respondent contends that after installation the air conditioning must have been turned off. Mr. Warren testified that he was also on site August 21st, and no air conditioning was turned on then. As was found above, Mr. Karoutas testified that he returned to the job site on the 4th, and 21st of August, and the air conditioning was not on at those times. But if the air conditioning was not on August 4th, that means Mr. Karoutas was present while Mr. Basha was laying the tile in unacceptably excessive heat according to the manufacturer’s instructions, and that is not credible based on the other evidence.

11. Complainant’s evidence included the electric bills for the school during the summer months of 2000. The electric bills are for air conditioning the school. They prove that the air conditioners were running more in August, when school was not in session, than they were in September, when school was in session. Ms. Wave Hendricks, the school’s Director of Operations, testified. She swore that the air conditioning was operating in the school in July, 2000, while she was there, and the rooms were cold in her opinion. Unfortunately again, for the sake of the record, she left for a vacation on August 2nd, and was not present in the school again until after August 15th. However, she did testify that before she left for vacation, she did not tell anyone at the school to turn off the air conditioning. 12. The evidence is undisputed that the problems with the tile not adhering to the sub-floor was throughout the school, in every room where the respondent had installed it. This included the computer room. Ms. Hendricks testified that as a matter of policy, the computer room is kept constantly air conditioned. 13. Mr. Mattheis testified that he spoke with the other workers from the other professions who were at the school on a daily basis during and after the tile installation, and they informed him that the air conditioning was always tuned on while they were there. 14. It is found that the school’s air conditioning was turned on during installation and the weeks following installation sufficient to maintain the room temperatures at a level compatible with the flooring manufacturer’s specifications. 15. Respondent’s other contention is that the school’s faulty air conditioning units were leaking water which the school personnel had to catch in buckets as it dripped from the condensation lines. This, respondent says, created moisture. Additionally, respondent contends that this is evidence of why the air conditioning was shut off. 16. However, the water leaks were only in two rooms of two buildings, where respondent’s flooring failed throughout the five buildings comprising the campus. Also, the faulty air conditioners were repaired by August 6th, 2000. Also, the air conditioners had to be turned on during repairs in order for the person repairing them to spot the source points of the leaks. 17. Respondent retained an expert in the field to inspect and render an opinion as to the failure. On February 20th, 2001, Mr. Steve Hardy of STH Flooring Specialists inspected the floor. Mr. Hardy concluded that the flooring was improperly installed, causing an adhesive-to-floor transfer problem, and the failure was the fault of respondent’s. Respondent therefore agreed to replace all the flooring. But later Mr. Warren asked Mr. Hardy to assume the condition of no air conditioning and excessive heat, and render a new opinion. Whereupon Mr. Hardy revised his opinion to be that excessive heat caused the failure. Mr. Hardy testified. His opinion is not credible in light of his flip-flop. His testimony included the fact that he had no evidence that there was excessive heat in the school. His original opinion of poor workmanship was unqualified by any caveat to the effect that he could not rule out excessive heat as a possible cause of the failure. His original opinion was unequivocal and unqualified ( poor workmanship. But then, mysteriously, he revised his opinion to be one he previously did not entertain as even possible ( excessive heat. Mr. Hardy offered the record no explanation of why in the first instance he did not see what he testified was, from the beginning, the true culprit responsible for the flooring’s failure. Inferentially, one could conclude from Mr. Hardy’s contradictory diagnoses that the symptoms of each are imitative of the other. But he absolutely missed excessive heat as a possible causative factor until Mr. Warren suggested it to him, whereupon it became not only a possible, but the only, explanation for the failure. 18. Respondent also produced as a witness Mr. Mark Capehart, a B-1 Arizona licensed contractor with over 30 years experience in the field. He testified to the excessive moisture in the tiling he saw in late August, early September of 2000. 19. Complainant, and the school, in August of 2001, were hard-pressed to take immediate action to make the school ready to accept students for another year. Complainant retained another appropriately licensed contractor to take at least some stop-gap measures just to enable the school to open. Desert Design Interiors was this contractor. Mr. Bradley K. Foster, an expert in the field of this flooring, and someone who has been installing these products for more than 20 years, testified. He was on site to make the corrections to the respondent’s work. He testified. He is probably the most disinterested witness of all in this case. It was not his or his company’s work that had failed. He was not retained by anyone just to give an opinion. He had been hired by complainant to make the corrections before he even rendered an opinion; and the corrections would have to be made regardless of what was his opinion. Mr. Foster testified that in his opinion the flooring failed because of respondent’s poor workmanship. The sealer was incompatible with the glue, he testified. The tile was not laid properly as judged by industry and workmanship standards. The glue had never set, even a year later, when he was on site in August of 2001. Moreover, Mr. Foster testified that neither lack of air conditioning nor humidity fluctuations could have caused the problems he saw. 20. Complainant filed the instant complaint with the Registrar of Contractors on August 1st, 2001. Registrar of Contractors Inspector Cliff Corlett was assigned to the case. He conducted a job-site inspection on August 8th, 2001, and issued a Corrective Work Order to the respondent on August 10th, 2001. He directed the respondent to “determine the cause of the V.C.T. floor failure and correct by appropriate means.” This he ordered the respondent to do within 15 calendar days of the CWO, which was a reasonable amount of time. Mr. Corlett testified. He had performed a pre-hearing inspection on January 9th, 2002. Respondent had performed no corrective work in obedience to the CWO. 21. Complainant requested an administrative hearing. A Citation and Complaint was issued from the registrar on September 18th, 2001, charging the respondent with possible violations of A.R.S. §32- 1154.A.7., 23., and 3. 22. The failure of the respondent’s work was caused by respondent’s poor workmanship. The VCT was not properly installed. 23. Notice is taken of the respondent’s prior license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §32-1156, and A.R.S. §41-1092. 2. The respondent herein is charged by the citation and complaint with possible violations of A.R.S. §32-1154.A.7., 23., and 3. 3. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule mentioned in the citation and complaint is A.A.C. R4-9-108, Workmanship Standards. That rule requires all of a licensed contractor’s work to be performed in a professional and workmanlike manner. The preponderance of the evidence supported the conclusion that the flooring in the school failed because the respondent did not properly install the flooring. The installation was not within industry and workmanship standards. That is why it failed from the beginning, as was found, not from lack of air conditioning or invasive moisture. In violating A.A.C. R4-9-108, respondent violated A.R.S. §32- 1154.A.3. 4. A.R.S. §32-1154.A.23. prohibits a licensed contractor from failing to take appropriate corrective action to comply with the contractor laws of the State of Arizona, without valid justification, within a reasonable period of time, after receiving a written directive from the registrar to do so. The written directive in this case was the Corrective Work Order. Respondent failed to make the corrections ordered. He offered justification, but the greater weight of evidence was against the justification. Respondent violated A.R.S. §32-1154.A.23. 5. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor which results in another person being substantially injured. There is no evidence of fraud, and no evidence of any wrongful act of the respondent independent of the violations already concluded above. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the respondent’s Class L-08 License number 130433 be suspended until such time as the Registrar of Contractors receives written proof that the respondent has properly accomplished the corrective action set forth in the inspector’s Corrective Work Order. It is further recommended that if the respondent properly accomplishes the above-described corrective action, on or before the effective date of this order (40 days after the date of service shown by the registrar’s certification on the order), then no license suspension shall take place, and Citation and Complaint number L02-0019 shall be closed. Done this day, January 30th, 2002.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of January, 2002, to:

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

By _______________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488