ALJDEC decisions subject to certification as final

04F-M1123-ROC · Registrar of Contractors · 2004-06-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 27, 2004 APPEARANCES: Ruby Kay Daniels (“Complainant”) appeared on her own behalf. Martin Hurtado, a corporate officer of Armando’s Floor Covering, Inc. (“Respondent”), appeared on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Michael L. Barth _____________________________________________________________________ Findings of Fact 1. The purpose of the hearing was to determine whether Respondent violated A.R.S. § 32-1154(A)(7), (15) and/or (3), namely A.A.C. R4-9-108. 2. It was undisputed that on or about January, 2003 the parties entered into a contract in which Respondent agreed for the price of $454.00 to install carpet purchased by Complainant from Pro Source at her residence of 2128 W. First Place, Mesa, Arizona. 3. Complainant complained of an improper transition in the carpet from those rooms in which the carpet was installed over existing tile floor to the two bedrooms in which the carpet was installed over concrete floor. Complainant also complained that during installation, Respondent had damaged several floor tiles at the doorway of the master bath as shown in Exhibit 14-E. Complainant complained of separating and frayed seams, lines, flaws, humps and cuts in the carpet. 4. Registrar of Contractors Inspector Dennis Cook, a neutral witness, testified that upon inspection of Complainant’s complaints he did not find any workmanship deficiencies in the installation of the carpet but acknowledged that if Respondent was found by this tribunal to have damaged the floor tiles in the door way of the master bath during installation of the carpet then Respondent’s installation of the carpet was less than workmanlike and unprofessional. 5. Regarding alleged deficiencies in the carpet, Complainant presented the un-sworn statements of her daughter, Janice Daniels, and her neighbor, Petra Moser, as well as the notarized statement of John Malta, but said statements failed to reflect that their respective authors were experts in carpet installation workmanship. Accordingly, Complainant failed to present competent evidence to controvert the testimony of Inspector Cook on workmanship of the carpet installation. 6. Given the absence of competent controverting evidence and Inspector Cook’s status as a neutral witness, this tribunal finds, but for the alleged cracking tiles, the carpet had been installed properly by Respondent. For reasons discussed below, this tribunal finds that Respondent damaged the tiles during installation of the carpet. 7. In support of Respondent’s denial of damaging the tiles at issue, Mr. Hurtado testified that Complainant did not complain of cracked tiles until many months after installation, and that upon Complainant communicating this complaint to him, he interviewed the installers who denied having cracked tiles. Mr. Hurtado further testified that because the installers used liquid nails to tack the carpet to the tile, tools capable of cracking tiles would not have been in use. However, given self serving nature of the hearsay statements of the installers, this tribunal finds said hearsay statements to be without sufficient reliability for the purpose of establishing that the installers did not damage the tiles. In addition, this tribunal finds that Mr. Hurtado’s conclusion that, tools capable of cracking the tiles at issue were not brought onto the job site, lacked sufficient foundation as Mr. Hurtado was not present at the time of installation and failed to present testimony of the installers to support his conclusion. 8. Complainant testified that she had brought the cracked tiles to the attention of the installers upon their completion of installation. This tribunal finds that the alleged delay in Complainant reporting the cracked tiles to Mr. Hurtado to be insufficient to impeach the credibility of Complainant for the delay can be explained by Complainant having previously complained to the installers at installation regarding the cracked tiles and the installers failing to bring said complaint to the attention of Mr. Hurtado. 9. Based on photographic evidence presented by Complainant, Exhibit 14-E, this tribunal finds that the cracked tiles are located where the carpet and tile floor meet, a location consistent with tiles being damaged during installation. 10. Given Respondent’s failure to present sufficient probative evidence to impeach the credibility of Complainant and the location of the cracked tiles being consistent with tiles being damaged during installation, this tribunal finds Complainant’s testimony that the tiles at issue were damaged by Respondent’s installers during installation of the carpet to be credible. 11. Because damaging tiles during installation of carpet is an obvious deviation from the minimum workmanship standards, said claim would not be required to be supported by expert testimony, although it was here. Accordingly, this tribunal finds that Respondent failed to install the carpet within minimum workmanship standards, and its failure to do so caused Complainant substantial injury. 12. Complainant failed to present evidence for the purpose of demonstrating that Respondent acted in the capacity of a contractor under its license in a name other than that set forth upon the license. 13. Taking administrative notice of the official records of the Registrar of Contractors, this tribunal finds that Respondent’s license is currently suspended due to lack of bond. Conclusions of law 1. Having failed to install the carpet in a workmanlike and professional manner, Respondent violated A.A.C. R4-9-108, and in turn violated A.R.S. § 32-1154(A)(3) which prohibits licensed contractors from violating any rule adopted by the Registrar of Contractors. 2. Having failed to install the carpet in a workmanlike and professional manner, Respondent damaged Complainant’s master bath floor tile, thereby causing Complainant substantial injury in violation of A.R.S. § 32-1154(A)(7). 3. Evidence not having been presented for the purpose of demonstrating that Respondent acted in the capacity of a contractor under its license in a name other than that set forth upon the license, it is concluded that Respondent did not violate A.R.S. § 32-1154(A)(15). Recommended Order Commencing on the effective date of the Order entered in this matter by the Registrar of Contractors, Respondent’s Class C-08R license shall be revoked until the Registrar of Contractors receives proof that Respondent complied with either of the following conditions: 1. Respondent has repaired the damaged tiles in the master bath, shown in Exhibit 14-E, in a workmanlike and professional manner, whether it be by replacement or otherwise; or 2. Respondent has entered into other mutually acceptable arrangements to resolve the foregoing dispute with Complainant. If the Registrar of Contractors receives proof that Respondent has complied with either of the foregoing conditions on or before the deadline identified above, then the above-ordered revocation of Respondent’s Class C- 08R license shall not be imposed and Case No. M04-1123 shall be closed. 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 shall be 35 days from the date of said certification.

Done this day, June 16, 2004

______________________________________ Michael L. Barth Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2004, to:

Registrar of Contractors Israel G. Torres ATTN: Jennifer Brown 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