ALJDEC decisions subject to certification as final

2010A-308477432-ROC · Registrar of Contractors · 2011-08-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 9, 2011 APPEARANCES: Complainant Joseph Dlugosz appeared on his own behalf. John Wabeke appeared on behalf of Respondent Wabeke Enterprises, L.L.C., doing business as Tile Interiors N Abbey Carpet. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent Wabeke Enterprises, L.L.C., doing business as Tile Interiors N Abbey Carpet (“Wabeke”), is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). 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. Wabeke is the holder of a Class C-8 license (No. 101531) issued by the Registrar of Contractors (“ROC”). John Wabeke is a member of Wabeke and its qualifying party. 2. Complainant Joseph Dlugosz contracted with Wabeke for Wabeke to install carpet and mesquite wood flooring throughout Mr. Dlugosz’s home. According to the filed complaint, the installation took place in August 2010. 3. Shortly after Wabeke installed the flooring, Mr. Dlugosz noticed gaps and movement in the wood flooring. Mr. Dlugosz contacted Mr. Wabeke to voice his concerns about the wood flooring installation. Mr. Wabeke initially thought there could have been a “mill problem” with the wood and took samples of the wood flooring from the home. On October 8, 2010, Mr. Wabeke sent an email to Mr. Dlugosz informing him that the flooring manufacturer advised that the wood installed in the home was within industry “tolerances” and that the movement Mr. Dlugosz experienced was “considered normal and allowable.” See Email dated October 8, 2010, a copy of which is contained in the administrative record of which the Administrative Law Judge took administrative notice. Mr. Wabeke offered to top-nail the loose boards, fill the nail holes with a close color match, and recoat the floor. Id. 4. Mr. Dlugosz agreed to have Wabeke perform the suggested repair work, specifically, to top-nail the wood flooring. However, after Wabeke performed the repairs, Mr. Dlugosz remained dissatisfied with the wood flooring installation. Consequently, on December 3, 2010, Mr. Dlugosz filed a complaint against Wabeke with the ROC generally alleging that the wood flooring installation was deficient and unacceptable. 5. ROC Inspector Cliff Frandsen investigated Mr. Dlugosz’s complaint. 6. On December 28, 2010, Inspector Frandsen conducted a jobsite inspection. 7. On January 21, 2011, Inspector Frandsen issued a letter advising the parties in pertinent part, “NWFA [National Wood Flooring Association] standards for inspecting a hardwood floor after installation state that all issues must be visible from 5’ with no reflective light. This inspector could not detect any visible defects in workmanship or movement in the floor. The flooring was installed per standards. There is no indication of tracks or debris on the carpets.” 8. Inspector Frandsen testified that upon his inspection, he determined that the wood flooring had no deficiencies, that Wabeke followed the standards promulgated by NWFA, that he could not detect movement or defects in materials or workmanship, and that he did not observe tracks or debris on the carpet. Inspector Frandsen testified that he visually inspected the entire floor in order to ascertain if he could see or hear movement. Inspector Frandsen inspected the floor according to the inspection standards used in the industry and by the ROC, specifically, from a standing position and without the aid of reflective light. Inspector Frandsen testified that in contrast, Mr. Dlugosz inspected the floor with his face to the floor and with his fingernails. Inspector Frandsen testified that he did not perform a pre-hearing inspection because Mr. Dlugosz cancelled it. 9. Mr. Dlugosz testified regarding the numerous photographs that he offered into evidence. See Exhibits C1-C6, C11, C12, C16, and C23- C25. Mr. Dlugosz testified that the photographs depict the “floor moving,” puddling of finish, blind nailing, cupping, cracks in joints, and back filler. Mr. Dlugosz testified that he did not purchase a top nailed floor. However, the evidence of record, including Mr. Dlugosz’s acknowledgement, established that when Wabeke presented top- nailing as an option for remedying Mr. Dlugosz’s concerns, Mr. Dlugosz accepted and approved top-nailing the floor. 10. Jason Elquest, a certified inspector for the NWFA, who also owns a wood flooring business in Scottsdale, Arizona, testified on Mr. Dlugosz’s behalf. Mr. Elquest testified that he inspected the wood floor on December 13, 2010. Mr. Elquest testified that he inspected the floor from the standing position and noticed subtle movement and that some nail holes were visible. Mr. Elquest opined that there are small areas of flooring containing top-nailing that do not meet industry standards. Mr. Elquest testified that the floor is failing because the nailing of the sub-floor was performed improperly, in that the nailing schedule and angle of the nailing were improper. Mr. Elquest recommended that the floor be removed and replaced to at least the sub-floor as the only way to repair the floor. However, Mr. Elquest acknowledged that he was misinformed by Mr. Dlugosz as to the thickness of the subfloor, and other information to which he was not privy at the time of his inspection, such as the fact that the subfloor was glued down. Mr. Elquest further acknowledged that the floor does not make noise. 11. Michael Siebersma, a licensed contractor who installed the wood floor, testified that he installed the floor to NWFA standards, and that he has installed many mesquite floors in the past. Mr. Siebersma testified that the subfloor is both nailed and glued down. Mr. Siebersma further testified that prior to performing repair work, he demonstrated to Mr. Dlugosz the top-nailing method that had been proposed, and Mr. Dlugosz agreed to the top nailing. CONCLUSIONS OF LAW In this proceeding, Mr. Dlugosz bears the burden to prove, by a preponderance of the evidence, that Wabeke is subject to discipline for violations of A.R.S. § 32-1154(A)(2) and/or (A)(3) as charged by the ROC in its April 28, 2011 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Mr. Dlugosz failed to meet his burden of proof as to the ROC’s charges. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans or specifications or any building codes . . . without consent of the owner . . .” The Administrative Law Judge concludes that the credible, probative, and substantial evidence of record failed to establish that Wabeke departed from plans, specifications, or building codes. The evidence of record established that Mr. Dlugosz agreed to the top-nailing of the wood floor. Therefore, the Administrative Law Judge concludes that Wabeke is not in violation of A.R.S. § 32- 1154(A)(2). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Wabeke with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. The Administrative Law Judge concludes that the credible, probative, and substantial evidence of record failed to establish that Wabeke failed to perform its work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards, notwithstanding Mr. Elquest’s testimony and the photographs submitted by Mr. Dlugosz. Mr. Elquest performed his inspection in part based upon erroneous information provided to him by Mr. Dlugosz and without the benefit of other pertinent information, and photographs, because they are still frame, do not depict movement. Therefore, the Administrative Law Judge concludes that Wabeke is not in violation of A.R.S. § 32-1154(A)(3). The Administrative Law Judge concludes, based upon the evidence of record, that no grounds exist to impose discipline against Wabeke’s license. The ROC’s Citation in Case Number 2010-[number redacted], and the Complaint upon which it is based, should be dismissed. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is recommended that no discipline be imposed against Wabeke’s license, and that the Citation issued in Case Number 2010-[number redacted], together with the Complaint upon which it is based, be dismissed. 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, August 23, 2011.

/s/ Sondra J. Vanella 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