ALJDEC decisions subject to certification as final

2010A-308477418-ROC · Registrar of Contractors · 2011-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 13, 2011 and September 6, 2011 APPEARANCES: David and Carolyn Harris appeared personally. K W K, Inc., doing business as The Carpet Broker, was represented by its authorized representative, Karl Kramer. 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. K W K, Inc., doing business as The Carpet Broker (“Respondent”), is the holder of License No. 183412, a Class C-8 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On November 29, 2010, David and Carolyn Harris (“Complainants”) completed a written Complaint against Respondent that was later filed with the Registrar.[1] Complainants’ Complaint alleged deficient workmanship by Respondent in the product and installation of laminate flooring at Complainants’ residence in Chandler, Arizona. The Registrar designated the Complaint as Case No. 2010-[number redacted]. 3. In response to the filed Complaint, the Registrar’s assigned inspector, Ted Gerold, performed a jobsite inspection at Complainants’ residence to view the installed laminate flooring. As a result of that inspection, Inspector Gerold issued a Corrective Work Order dated December 28, 2010, that required Respondent to timely accomplish the following work: This contractor is to correct the following by appropriate means:

Remove the reoccurring film on the flooring in all rooms where necessary.

NOTE: In this inspector’s opinion, the contractor should attempt to remove this film in a test area, such as, the rear living room where ample sunlight is available. The test area should be at least one quarter the size of the room for ample evaluation of the success of the repair.

4. 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) (3), namely A.A.C. R4-9-108, (10), and (23). 5. The Registrar forwarded Case No. 2010-[number redacted] to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. On September 22, 2009, Complainants contracted with Respondent for the purchase and installation of Mohawk Laminate flooring. 7. Respondent delivered the laminate product to Complainants’ residence to allow the product to become acclimated prior to the installation. 8. Respondent hired Eastern Interiors, L.L.C. (“Eastern”) to perform the installation of Complainants’ laminate floor. The floor was installed on October 4, 2009. 9. Eastern’s License No. 230039 expired on April 1, 2009. Therefore, Eastern was not permitted to install Complainants’ laminate floor. 10. Eastern’s installers used acetone and rags to clean up portions of the installed laminate floor. Acetone is an authorized cleaning agent for laminate flooring and it will not damage or alter the appearance of the flooring. Acetone dissipates after being used. 11. There is no credible evidence that Eastern’s installers used acetone to clean the entire installed flooring. On the contrary, there is credible evidence that acetone is used sparingly for cleaning floors because of its expense and fumes. 12. A period of time after the laminate floor was installed, Complainants complained to Respondent concerning the hazing of the flooring’s surface despite repeated cleaning by Complainants. 13. An investigation by Respondent disclosed that Mr. Harris reported to Respondent’s salesperson that a product called “Holy Cow” was used on the flooring. “Holy Cow” was taken off the market because it caused hazing on whatever surface it was used to clean. Complainants denied at the hearing that they used the “Holy Cow” product on their flooring, but did admit to using it on their countertops. 14. Respondent contacted Mohawk Laminate, who also inspected the flooring, and hired American Interiors, L.L.C. (“American”) to clean Complainants’ floor as directed by the Registrar’s Corrective Work Order. 15. American cleaned a test area and removed the haze in the test area. American later returned to complete the cleaning of the floor at the expense of Mohawk Laminate, but Complainants refused to remove furniture so that American could clean the floor. Complainants insisted that American move the furniture, but American refused to do so because Mohawk Laminate did not pay American for that scope of work. 16. Brian Frost from American is a floor cleaner with 15 years of experience. He testified that he disagreed with Inspector Gerold’s determination that Respondent was responsible for the hazing of Complainants’ flooring. Mr. Frost testified that he was able to clean the test area. Complainants would not disclose to Mr. Frost the number of cleaning cloths they use when cleaning the floor. 17. Mr. Frost opined that the hazing of Complainants’ flooring is a homeowners’ maintenance issue. 18. The evidence of record established that Respondent’s installation of Complainants’ laminate floor meets workmanship standards. 19. Complainants failed to establish by credible evidence that the laminate flooring had defects for which Mohawk Laminate, as the manufacturer of the product, was responsible. 20. There is no credible evidence that Respondent’s workmanship caused the hazing of Complainants’ flooring. Therefore, Respondent is not responsible for performing the corrective work set forth in the Registrar’s Corrective Work Order. Nonetheless, Mohawk Laminate attempted to clean Complainants’ flooring as set forth in the Registrar’s Corrective Work Order, but Complainants denied reasonable access to its subcontractor American to complete the cleaning of the floor by failing to move their furniture. It was unreasonable for Complainants to expect American to move Complainants’ furniture without payment for that work. 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), Complainants have 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. The evidence of record did not establish 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. There is no credible evidence that the installation of Complainants’ floor did not meet minimum workmanship standards. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (10), as charged in the Citation and Complaint issued by the Registrar. Respondent hired Eastern to perform the installation of Complainants’ flooring while Eastern’s contracting license was expired. 5. The evidence of record did not establish 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 failed to establish Respondent’s responsibility for the hazing of Complainants’ flooring. Even if Respondent were responsible for the hazing, Complainant made arrangements with Mohawk to have Complainants’ flooring cleaned, and its subcontractor, American, started the cleaning process by doing a test area as suggested by Inspector Gerold in the Corrective Work Order. However, American was denied the access by Complainants necessary to complete the cleaning of the flooring when Complainants refused to remove their home furnishings to allow American to clean the flooring. RECOMMENDED ORDER Respondent’s License No. 183412 shall be suspended for three days commencing on the effective date of the Order entered in Case No. 2010- [number redacted], followed immediately by a period of 120 days probation. In addition to the above-provided penalties, any restoration of Respondent’s rights to contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit, or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $1,000.00, such bond or deposit to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two-year period following the above- provided 24-month period, and only if no claims are then pending. 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, September 23, 2011. /s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The filing date of the Complaint is illegible on the document contained in the Registrar’s electronic hearing records.

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