ALJDEC decisions subject to certification as final

2010A-308472201-ROC · Registrar of Contractors · 2011-06-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 18, 2011 APPEARANCES: Paul Staman appeared personally. Baker Brothers Floorcovering, Inc., doing business as Baker Bros Area Rugs and Flooring, was represented by its attorney, John J. Smalanskas, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Baker Brothers Floorcovering, Inc., doing business as Baker Bros. Area Rugs and Flooring (“Respondent”), is the holder of License No. 162303, a Class K-8 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On January 5, 2010, Paul Staman (“Complainant”) entered into an agreement with Respondent for the removal of old wood flooring and the installation of laminate flooring at Complainant’s residence located at 5733 N. 25th Place, Phoenix, Arizona. 3. On April 7, 2010, Complainant filed a written Complaint with the Registrar alleging workmanship deficiencies by Respondent on the subject project. The Registrar designated the Complaint as Case No. 2010-[number redacted]. 4. In response to the filed Complaint, the Registrar’s assigned inspector, Mark Alyea, performed a jobsite inspection to view the Complaint items. As a result of his jobsite inspection, Inspector Alyea issued a Corrective Work Order dated April 27, 2010, which addressed the Complaint items as follows: Contactor needs to correct the hump in the new laminate wood floor that he installed at the breakfast nook area by appropriate means. The hump is in between the table and the garage wall.

No action required of the contractor for the following: 1. The new wood floor that the contractor installed is not uneven or out of level. [sic] In front of the sub-zero refrigerator or at the hall bathroom. 2. At the inspection I was not shown if the contractor did install silicone sealant in front of the kitchen sink, at the front of the dishwasher, in front of the sub-zero refrigerator or in front of the hall bathroom sink. But the representatives for the contractor said at the inspection that they would check to see if this had been done, and apply the silicone if it has not. 3. The complainants [sic] residence was extremely clean at the time of the inspection. So I could not determine if the contractor had or had not used plastic to control dust from getting into the living and dinning [sic] rooms, when the course of construction was being done. 4. The shutter had been corrected prior to the inspection. 5. At the time of the inspection, the complainant ask [sic] for us to compare his office wood floor to the new wood floor that the respondent installed. I could not see a difference from one to the other. 6. The complainant ask [sic] about the vapor barrier and if the contractor had held or cut the new flooring back a ¼ of an inch. At the inspection these items were not exposed.

5. The Registrar issued a Citation and Complaint in Case No. 2010- [number redacted] charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (2), (3), namely A.A.C. R4-9-108, and (23). 6. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. The North American Laminate Flooring Association (“NALFA”) is an industry organization with a membership comprised of “manufacturers, distributors, material providers, and ancillary entities. 8. In 2008, NALFA published Standards Publication UL 01-2008 entitled, “Underlayment Pad Specifications and Test Methods” (“Standards Publication”). The purpose of the Standards Publication “is to provide a tiered, minimum performance set of requirements for underlayment pads using standard test methods.” 9. The NALFA industry standard for subfloor flatness is 3/16” over 10 feet. 10. Respondent installed a Columbia Flooring Laminate product. 11. The Columbia Flooring Laminate Installation Instructions state the following: “Make sure the sub-floor is flat. Any unevenness greater than 2mm (1/16”) over the length of 1 meter (40”) must be smoothed out.” 12. At hearing, Respondent presented credible evidence from Columbia Flooring of the following: “Although not officially stated in the Columbia installation instructions, Columbia does abide by the NALFA industry standard for subfloor flatness.” 13. Complainant’s expert, David Rosen, had never before seen the NALFA industry standard for subfloor flatness. He testified that he had never seen a perfectly level floor. Mr. Rosen further testified that the NALFA industry standard is tremendously more forgiving. 14. The evidence of record established that Respondent’s installation of Complainant’s laminate wood floor met industry standards and Respondent is also determined to have installed the flooring per the manufacturer’s plans and specifications. 15. Inspector Alyea reviewed the parties’ contract and determined that no deviations from plans or specifications had been committed by Respondent. 16. Dan Davis has been Respondent’s customer service person for 15 years. 17. Mr. Davis testified that Respondent’s installer measured the subfloor for moisture, but found none. The installer used the product supplied by Complainant. The installer also used padding, which is also a moisture barrier. 18. Mr. Rosen used a non-quantitative moisture test by the breakfast nook and in front of the refrigerator. However, Mr. Rosen could not confirm that the elevated moisture levels that he found were due to Respondent’s workmanship. 19. At hearing there was evidence presented concerning the issue of shoe molding. Complainant failed to present credible evidence establishing that Respondent’s installation was defective. 20. On May 18, 2011, Inspector Alyea performed a pre-hearing jobsite inspection to view the Complaint items. Inspector Alyea determined that the hump in the laminate floor had been corrected as required by the Corrective Work Order. Inspector Alyea determined that no further action was necessary by Respondent. 21. Respondent still has four boxes of the Columbia wood laminate product owned by Complainant. It is ready, willing, and able to transfer the product to Complainant. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as charged in the Citation and Complaint issued by the Registrar. On the contrary, the evidence of record supports the conclusion that Respondent installed the Columbia laminate wood flooring pursuant to the NALFA standard that is recognized by the manufacturer. 4. Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9- 108, as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent’s installation of the laminate wood flooring meets workmanship standards. 5. Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (23), as charged in the Citation and Complaint issued by the Registrar. The evidence of record established that Respondent fully complied with the Corrective Work Order. RECOMMENDED ORDER The Citation and Complaint in Case No. 2010-[number redacted] shall be dismissed on the effective date of the Order entered in this matter. 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 40 days from the date of that certification. Done this day, June 7, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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