ALJDEC decisions subject to certification as final

07F-1326-ROC · Registrar of Contractors · 2007-10-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 24, 2007 APPEARANCES: Complainant appeared through its member, Troy Olhausen (“Troy”) and Respondent was represented by its attorney, John Buric. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Respondent was retained by Complainant’s general contractor to install new carpet throughout a new commercial building. Complainant alleges certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. At the outset of the scheduled hearing Troy averred that the only remaining issues to be determined at the instant hearing involved the items set forth in numbers 1 and 2 on the Corrective Work Order (“CWO”); namely the pattern mismatch along the seams in specified areas of the main work space and the seam raveling in certain areas. Apparently, all other items of the filed Complaint had been resolved by Respondent. b. Although prior repair attempts by Respondent had failed to correct the pattern mismatch and the seam raveling, as required by the CWO, which had been issued on or about January 24, 2007, evidence of record showed that shortly before the date of the scheduled hearing, Respondent issued a written document indicating that it was willing to replace the carpet in question, with the requirement that Complainant should be responsible for moving all of the furniture in the affected areas. This document is viewed as a belated attempt by Respondent to settle the dispute between the parties. c. Evidence of record showed that Complainant has installed cubicle type dividers in the areas in question. In this regard, Complainant had paid a specialized company to provide and install the cubicles. Complainant asserts that it is the responsibility of Respondent to move any and all furniture in the affected area. Respondent contends that it does not have the specialized skill to disassemble and reassemble cubicle dividers. Accordingly, Respondent asserts that any such removal should therefore, be Complainant’s responsibility. d. The assigned Agency inspector appeared at the instant hearing and provided testimony. The inspector testified that the Registrar of Contractors has an unwritten policy which requires a carpet contractor to move furniture, in order to repair or replace carpet issues. In fact, he indicated that in an area of Complainant’s building, where prior remedial work had been accomplished, he required Respondent to move file cabinets. e. The inspector testified regarding the remaining issues at the instant hearing. According to the inspector, the pattern mismatch involved issues of the pattern in the carpet not lining up correctly on different sides of a seam. On the raveling issue, he indicated that Respondent had attempted remedial work, however, now there is pattern mismatch in said area and a degree of raveling remained. f. The inspector admitted that it would take a specialized skill to remove and reassemble the cubicle dividers. As for the computer equipment in said area, he indicated that Complainant had agreed to move such equipment. He further indicated that the cubicle dividers were somewhat different than regular furniture. g. Evidence of record showed that Complainant continues to hold back the remaining $9,153.75 balance on the flooring contract. h. Troy testified that an agent of Respondent had assured him that Respondent would be responsible to move the cubicles, if same were installed prior to the time that the carpet issues were resolved. The individual in question, who was alleged to have made these representations, did not appear at the hearing. Respondent’s qualifying party, Jeff Payne (“Payne”), appeared at the hearing and testified that he would never have authorized responsibility for moving and reinstalling the cubicles. Moreover, Payne indicated that the agent in question, who was merely a salesperson for Respondent, would not have had the authority to make such a representation.

3. The mismatch at the carpet seaming, along with the raveling areas of the seam work is found to constitute substandard and unacceptable workmanship by Respondent and, as such same is also viewed as a wrongful act, within the meaning of the applicable charged section of the State’s Contracting laws.

4. It is determined and held that but for the defects in the carpet and/or installation work performed by Respondent, Complainant would not have to incur the expense of disassembling and reassembling the cubicles. Under the facts and circumstances presented herein, the liability for this expense is Respondent’s. Nevertheless, Complainant is responsible for moving all small personal items and computer equipment in said area.

5. As aforementioned, the evidence presented showed that Complainant’s general contractor still holds approximately $9,000.00 of Respondent’s money on the project. Thus, in light of the fact that Respondent’s license would not allow it to install the cubicles in question, Complainant will be responsible to hire the company to disassemble and reassemble the cubicles, as a condition precedent to Respondent’s performance of the work. The reasonable expense incurred in this endeavor then will serve as a credit against the balance due and owing to Respondent.

6. Respondent’s failure to fully comply with the CWO constitutes a violation of the applicable charged section of the State’s Contracting laws, regarding the need to comply with an official Agency directive.

7. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed the absence of any prior disciplinary sanctions on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

Respondent violated the provisions of A.R.S. § 32-1154A (23), (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing twenty (20) days after the date that the Order in this matter becomes final, that the Class K-08 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has either accomplished appropriate and effective remedial work on the areas of the commercial project that reveal the mismatch of the carpet pattern and all raveling of carpet seams or concluded other mutually agreed arrangements with Complainant. It is further recommended that if Respondent accomplishes the above- described corrective work on or before the aforementioned extended deadline date, then the aforementioned license suspension shall not take place; provided however, by way of a condition precedent for any obligation of Respondent to perform such corrective work, Complainant shall first retain a company to disassemble and remove the cubicles and shall remove all other personal items and computer equipment from said areas, on or before five (5) days after the Order in this matter becomes final.[1] Any failure by Complainant to accomplish this condition precedent on or before the stated deadline date shall be deemed to relieve Respondent of any responsibility to accomplish the corrective work required by this Order. It is further recommended that in the event Respondent complies with the terms and conditions of the Order entered in this matter or is effectively relieved of such need to comply based on a failure of Complainant to comply with the condition precedent then, and in that event, this Citation, together with the Complaint upon which it is based, shall be deemed to 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 in this matter will be forty (40) days from the date of that certification.

Done this day, October 2, 2007.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Respondent is responsible to move out any items that would be deemed to be regular furniture or file cabinets.

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