ALJDEC decisions subject to certification as final

08F-2633-ROC · Registrar of Contractors · 2008-12-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 17, 2008 APPEARANCES: Darrell and Nancy Lucht, Complainants; Jay Giesbrecht, Respondent’s president; Jack Clark, Registrar of Contractors Inspector; Jake Jacobs, Complainant’s witness ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ Following a complaint to the Registrar of Contractors, the Complainants have established that the Respondent installed the incorrect artificial turf at their home and charged them for the labor in response to a Corrective Work Order, which was a violation of applicable Arizona contractors’ licensing statutes. Based on the evidence adduced at hearing, the Complainants have established that the Respondent’s license should be suspended until the proper product is installed and the Complainants have been reimbursed. They have also established that the Respondent should be assessed a civil penalty of $375.00. Having considered the following Findings of Fact and Conclusions of Law, the undersigned Administrative Law Judge hereby makes the following Recommended Decision to the Registrar of Contractors.

FINDINGS OF FACT 1. Prior to the hearing, Darrell Lucht, husband of the Complainant, Nancy Lucht, and co-owner of the home in question, asked to be added as a complainant in this matter. Therefore, the caption has been amended to reflect that Darrell and Nancy Lucht are the Complainants. 2. In June 2006, the Respondent, Mirage Greens of the Valley, installed "Ultimate" artificial turf in the Complainants' yard. At first, it looked and felt as expected, but within about 18 months it began to deteriorate. On February 21, 2008, the Complainants filed a complaint with the Registrar of Contractors ("the ROC"). 3. On March 19, 2008, ROC Inspector Jack Clark conducted a job site inspection where he determined that the turf was deteriorating. He issued a Corrective Work Order on March 24, 2008. 4. On April 11, 2008, the Respondent installed replacement turf. During replacement, he requested that the Complainants pay for labor in the amount of $700-$800. The Complainants disagreed but compromised and paid $300 to the Respondent. 5. On April 16, 2008, the Complainants contacted the ROC and informed it that that they were not satisfied. On May 22, 2008, the ROC issued a Citation and Complaint. The matter was set for hearing on December 17, 2008. 6. On December 16, 2008, Mr. Clark conducted a pre-hearing job site inspection. He found that the installation was done professionally but the product did not meet its design criteria and it was not aesthetically pleasing. For these reasons, he found that the turf installation was not appropriate. 7. By the time of the hearing, both parties agreed that the original turf's deterioration was the result of being a "bad batch", which happens occasionally in the mixing of plastics such as artificial turf. 8. At the hearing, the Complainants argued that the replacement turf installed by the Respondent was not the same product as the original installation. They offered as proof the testimony of Jake Jacobs, an experienced carpeting expert. He testified that artificial turf is evaluated in much the same way as carpet. Upon inspection, he found that the quality of the two turfs differed significantly in the areas of pile height, layover of the strands and the number of curly fibers. He said the original turf was more resistant to pile crushing due to its density and the tightness of its curly fibers. He also stated that the differences were quite conspicuous. He noted that the artificial turf company offers 5 varieties of turf of varying qualities. The Complainants had purchased the highest quality, but the replacement turf was clearly not of high quality because it was already matting and crushing like a lower quality turf. Although the Respondent insisted that the manufacturer had simply changed the product, Mr. Jacobs testified that it is not acceptable in the industry to offer a significantly altered product under the same name as the original product. He said that when a manufacturer changes a product to that degree they would at least have to send out new samples so that customers ordering the product are not mislead as to its nature. 9. On Mr. Jacobs' advice, the Complainants sent samples of the original turf and the replacement turf to an independent laboratory, Professional Testing Laboratory, Inc. Its report (Exhibit 7) concluded that the two samples had a 33% difference in weight, where the standard in the industry is a 7% tolerance. According to Mr. Jacobs, weight is an important indication of quality because higher densities of carpet or turf will resist matting and crushing better. He noted that the replacement turf was shorter than the original and this would actually increase its density, making the 33% difference all the more significant. Clearly, the two samples were not of the same product. Commenting on the results of the laboratory test, Mr. Jacobs testified that density is a primary indication of how carpet will resist crushing and matting. Adding to this the fact that the replacement turf was also shorter and had fewer stitches per yard, the conclusion was inescapable that the replacement turf was of a much lower quality than the original. 10. The Complainants also offered testimony to establish that the newer turf matted down easily and did not appear as attractive. In the 21 days that the Complainants were at home using the replacement turf, the area where the dogs liked to lay had stopped springing back. This had not happened with the original turf until around 18 months when it failed. 11. In response to the Respondent’s claims in a letter that the Complainants had been happy with the replacement turf at installation, Complainant Darrell Lucht testified that he had noted that the turf appeared flatter when it first arrived but the Respondent had said it would look better installed when he’d had a chance to fluff it up. Rather than learning whether the Complainants were satisfied after the installation, however, the Respondent’s crew left immediately without asking their opinion. Mr. Lucht testified that he allowed Respondent to lay the turf because his lawn was torn up and he hoped that Respondent’s representations regarding its appearance would be true. Unfortunately, they were not, and the lawn did not appear the same from the beginning. Complainants had notified the Registrar of Contractors immediately of the discrepancy. 12. Respondent's president, Jay Giesbrecht, testified that the new turf was the same product because he ordered it by name from the same company and this is what he received. He also stated that his personal inspection of it disclosed that it had the same gauge, stitch rate and density as the original. He noted that it was shorter than the original and that it laid down where the Complainants' dog liked to lay. In response to the Complainants' evidence, he argued that turf companies may change their products occasionally in order to improve it. He also said that he was certain that the turf was the product that he ordered because he installs it regularly and he recognized it. However, the differences in the products were so obvious that it was clear that the Respondent either knew or should have known that it was not the same. 13. Mr. Giesbrecht stated that he could add more fill to it to make it stand up straighter. But Mr. Jacobs testified that adding more fill to the lawn would only make it lay flat at whatever height the fill was at. It would not improve the quality of the lawn, and it would not make it spring back into place where people walked or dogs lay down. 14. The weight of the evidence established that the Respondent did not install the same or similar product as the Complainants originally purchased. Mr. Giesbrecht’s personal inspection of the carpet was not accurate, but the independent laboratory tests confirmed that the weight, density, height and stitch rate of the replacement turf was vastly inferior to the original. The fact that the newer product was so greatly inferior belies the Respondent's argument that the company had changed the product to improve it. 15. According to the records of the Registrar of Contractors, the license in this matter has received 1 complaint in the last two years. It was suspended from January 1, 2003 to June 11, 2003 for lack of bond and failure to renew. Its corporate status has been dissolved and reinstated on three occasions CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§ 32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32-1154(A)(2), (3), (7), (13)(namely A.R.S. § 32-1124(B)) and (23) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at § 32-1154(A)(2) provides grounds for suspension or revocation of a contractor’s license for departure from or disregard of plans or specifications or building codes without consent of the owner or his or her representative. 4. The Arizona Revised Statutes at § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. 5. The Arizona Revised Statutes at § 32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 6. The Arizona Revised Statutes at § 32-1154(A)(13) provides grounds for suspension or revocation of a contractor’s license for failure to comply with provisions of that chapter. A.R.S. § 32-1124(B) requires contractors to display their license number and the acronym “ROC” on the premises of their projects and on all documents they employ. 7. The Arizona Revised Statutes at § 32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 8. In this case, the inferior quality of the turf did not meet the design criteria of the turf that the Complainants contracted for and paid for. Therefore, it was established that the Respondent violated A.R.S. § 32-1154(A)(23) when he failed to take appropriate corrective action in response to the Corrective Work Order by installing the incorrect product, failing to recognize and/or admit it was the wrong product, and charging the Complainants for doing the corrective work. In addition, his actions were wrongful and possibly fraudulent and caused the Complainants to incur substantial injury in the form of additional costs, trouble and the frustration of having the wrong product and having to pursue correcting the problem to such an extreme. This was a violation of A.R.S. § 32- 1154(A)(7). The installation of the replacement turf did not meet minimum workmanship standards because the Respondent installed the incorrect product, even though the rest of the installation may have been done correctly. Therefore, Respondent has violated A.R.S. § 32-1154(A)(3) and A.A.C. R4-9-108. Finally, because the parties contracted for the installation of the higher quality turf, Respondent failed to abide by the specifications of the project by installing another product, which was a violation of A.R.S. § 32-1154(A)(2). 9. No evidence was offered in support of the allegation of a violation of A.R.S. § 32-1154(A)(13). Therefore, it was not established that the Respondent was in violation of that statutory provision. 10. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. Respondent’s record with the Registrar of Contractors is considered relatively good. Therefore, any disciplinary action by the Registrar should not be augmented by concerns regarding this license. 11. Considering the Respondent’s violations of A.R.S. § 32- 1154(A)(2), (3), (7), and (23), it would be appropriate for the Registrar to impose disciplinary measures in this case in the form of a provisional suspension and restitution. The fact that the Respondent either knew or should have known that the product was not the same as the original supports the imposition of a civil penalty. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends to the Registrar of Contractors that, commencing on the effective date of the Registrar’s Order, Respondent’s Class K-05 license be temporarily and actively suspended until the Registrar receives and accepts sufficient proof that Respondent has installed the proper artificial turf product (i.e., Ultimate) on Complainants lawn and returned the $300.00 the Complainants paid to have the correct work done. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $375.00 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. Following the satisfactory installation of the correct product, repayment of the $300.00 in restitution and payment of the $375.00 civil penalty, Case No. 08F-2633-ROC shall be closed. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification.

Done this day, December 29, 2008

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Armando Contreras 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

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