ALJDEC decisions subject to certification as final

07F-M0269-ROC · Registrar of Contractors · 2007-06-19

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 14, 2007.

APPEARANCES: >The Complainant appeared in her own behalf. >The Respondent appeared through its President and qualifying party, Karl William Kramer.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

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

FINDINGS OF FACT

1. Respondent agreed to and did provide and install selected wood laminate flooring materials throughout Complainant’s new home. Slightly over 1900 square feet of interior surface was to be covered by the wood floor covering. The contractually stated cost price of $12,533.48 was shown to have been fully paid to Respondent by Complainant.

2. Respondent’s license enabled the performance of all types of floor covering work. However, Respondent elected to utilize the services of another specialty subcontractor who purportedly was more familiar with the installation of wood laminate materials for the contemplated work on this jobsite. Although Respondent had previously checked out the license status of such selected specialty subcontractor and had utilized its services on at least one prior occasion, the identified subcontractor had allowed its contracting license to become suspended by operation of law for lack of a proper bond, and its license was so suspended at the time the installation work was performed in Complainant’s residence. The license of that subcontractor has subsequently been revoked in another, unrelated case. In any event, Respondent would remain fully responsible for the results of the work performed by its subcontractor.

3. Although the parties’ contract, prepared by Respondent, expressly noted that an extra amount could have been charged for the expense, if any, of leveling the flooring beneath the installed materials, no adequate investigation of the levelness condition was apparently made by Respondent’s selected subcontractor, and Respondent never communicated any request or demand for extra monies for the purposes of assuring an appropriate level condition.

4. The evidence was conflicting and inconclusive with respect to whether or not the underlying concrete slab, serving as the substrate for the installed laminate wood materials, was out of level to an extent that would exceed allowable industry tolerances. The more credible testimonial and documentary evidence appeared to indicate that such concrete was not excessively unlevel.

5. Even assuming that there was an excessively unlevel condition of the substrate so as to constitute a major cause or a contributing cause for any experienced adverse results, Respondent’s selected subcontractor was shown to have taken no

steps to verify the levelness and there was no communicated notice, request or disclaimer prior to commencing and completing the initial installation work. Consequently, Respondent must be held to have effectively accepted the underlying concrete surface as being adequate to support its laminate wood flooring installation work.

6. Very soon after the Respondent’s installation work, which was observed to have been completed in most all respects, except for the pantry area and the finishing and mounting of the base moldings, the Complainant commenced her occupancy of the home. Approximately five months later, the visible condition of the installed laminate wood flooring became substandard and unacceptable. Tenting of the materials was observed in scattered locations and a peaking condition had started to appear along a substantial portion of the edges. Additionally, there was some gapping between several individual pieces of the installed flooring materials and there was a degree of up and down movement of the flooring during foot traffic at several locations.

7. The evidence tended to demonstrate that Respondent, through its subcontractor, had failed to follow applicable manufacturer’s specifications and recommendations by not leaving adequate room for expansion along the edges and under the baseboards at vertical walls and also had not installed transition moldings (herein called “T-moldings”) at appropriate locations so as to avoid having excessively long continuous runs. Additionally, some locations revealed irregular and insufficient end joint staggering in adjacent rows and there were gaps or separations between the sides and ends of the planks at numerous scattered locations. These material and prejudicial deviations from express manufacturer’s specifications and recommendations are found to have been the proximate cause of the experienced wood flooring deficiencies.

8. Both prior to and after the filing of the within formal complaint with the Registrar, Respondent did arrange for remedial work efforts on several occasions by

sending out various individuals. However, the attempted remedial work, although achieving some measure of benefit by at least minimizing or eliminating the tenting problems and by installing some of the needed and recommended T-moldings, were shown to have been ultimately unsuccessful. The overall present condition of the installed wood laminate flooring in Complainant’s residence is found to still remain substandard and unacc eptable, thereby reflecting adversely upon Respondent’s workmanship.

9. Following the filing of a formal complaint with the Registrar of Contractors and a jobsite viewing, a written Corrective Work Order was issued by the Registrar’s assigned Inspector who determined that Respondent was obligated to correct the experienced flooring problems by appropriate means. The directive also included a requirement for Respondent to correct the damage to the baseboards and to the painted walls. However, Respondent’s continued unsuccessful attempts to accomplish effective repair work directed at some, but not all, of the locations exhibiting excessive peaking and/or separation failed to sufficiently rectify the flooring problems. Respondent corrective work efforts did not appear to have included the repair or painting of the damaged baseboards and abutting walls. The absence of any such repair attempts, considered together with the unsuccessful efforts to rectify the wood flooring problems still existing in a significant portion of the flooring installation, must be found to support a finding that Respondent has not substantially complied with the terms of the Inspector’s written directive.

10. Construction is not a perfect science, and it is not unusual for items to require attention by way of correction, repair or adjustment – often even more than once. No finding of a contracting law violation is generally supportable unless and until, after notice and a reasonable opportunity is given, a licensed contractor fails to rectify construction deficiencies. Correspondingly, if a contractor elects to perform less expensive methods or less extensive treatments to rectify construction problems, such

contractor remains at its peril to achieve appropriate and effective end results, as tested by prevailing industry standards and tolerances. Stated alternatively, a homeowner need not suffer through a seemingly endless succession of inadequate and/or ineffective repair efforts by a contractor. At some point in time a homeowner becomes entitled to more meaningful corrective measures consisting of removal and replacement of the improperly installed materials. That point is found to have been reached in this case. The evidence of record adequately supports a determination that, as expressly set forth in a written report of one of Complainant’s expert witnesses, the success of any corrective measures short of a complete replacement of the flooring at the present time would be highly unlikely.

11. Consequently, under all the circumstances that include the overall surface area of the wood flooring that remains deficient, the several different largely unsuccessful attempts to repair portions of the flooring, and the initial use of a specialty contractor whose license was not in good standing, Respondent is determined to be obligated (a) to remove all previously installed or repaired flooring materials, (b) to assure the levelness of the concrete substrate, and (c) to replace the wood flooring in its entirety with the same type of laminate materials, properly installed with appropriate T-moldings and spacing in accordance with manufacturer’s recommendations, all at Respondent’s expense and with no cost to Complainant.

12. Because of the lack of advance inspection and notification as to any unlevel slab condition, and further because of the suspended license status of Respondent’s selected specialty subcontractor, it is found and determined that any necessity to perform leveling work on the concrete under the wood flooring to properly support the replacement work shall become a responsibility of Respondent for any such expenses as being incidental and supplemental to its wood floor removal and replacement obligations.

13. To the extent that excessive moisture penetrating the concrete slab may possibly be a contributing factor to the previously experienced flooring deficiencies, Respondent’s replacement efforts must include measures, as before, to provide and install appropriate moisture barriers under the installed wood laminate materials.

14. Respondent’s overall course of conduct is further found to reflect a disregard of the comforts and entitlements of Complainant as well as of its duties as a licensed contractor in this State. Its failure or inability over a much prolonged time period to have properly rectified the reported flooring problems is determined to constitute a wrongful act resulting in detriment to Complainant, within the meaning of one of the contracting law provisions charged hereunder as being violated by Respondent.

CONCLUSIONS OF LAW

1. The evidence of record adequately established that Respondent has violated the provisions of A.R.S.§32-1154(A)(7), (23) and (3); namely, Rule R4-9-108, A.A.C.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that Respondent’s Class C-08 license shall be actively suspended until the Registrar receives written proof that Respondent has caused the proper removal and replacement of all previously installed laminate wood materials within Complainant’s home, utilizing appropriately placed T-moldings, and has also completed the repair and re-painting of all damaged baseboard and drywall areas abutting the flooring, as set forth in Finding of Fact Number 11.

It is further recommended that if written proof is filed with the Registrar on or before this Order’s effective date that Respondent has accomplished the above-specified remedial work in a proper, workmanlike manner, then the above-provided active license suspension shall not be imposed.

It is further recommended that, in addition to the above provisional active license suspension, if any, that Respondent’s Class C-08 shall be placed on disciplinary probation for a period of sixty (60) days commencing on the effective date of this Order or on the date that notice of Respondent’s compliance with the corrective work conditions is filed with the Registrar, whichever is later.

It is further recommended, in addition to the above-provided penalties, that Respondent pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32-1154(D). The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered.

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 will be forty (40) days from the date of that certification.

Dated: June 20, 2007. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

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

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