ALJDEC decisions subject to certification as final

2012A-2313-ROC · Registrar of Contractors · 2013-05-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING DATES: March 5, 2013, at 1:00 p.m.; April 19, 2013, at 1:00 p.m.; and April 22, 2013, at 1:00 p.m. APPEARANCES: Complainant Lew Cook was represented by Matthew J. Pierce, Esq., Warner Angle Hallam Jackson & Formanek, P.L.C.; Respondent Baker Brothers Floorcovering Inc. dba Baker Bros. Area Rugs and Flooring was represented by Chase E. Halsey, Esq., Cheifetz Iannitelli Marcolini, P.C. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. K- 8.162303-D for dual floor covering to Baker Brothers Floorcovering Inc. dba: Baker Bros. Area Rugs and Flooring (“Respondent”). On or about May 3, 2012, Lew Cook (“Complainant”) filed a Complaint with the Registrar regarding Respondent’s installation of vinyl plank flooring at Complainant’s residence at 15002 N. Sixth Circle, Phoenix, Arizona. According to the Complaint, Respondent completed installation of the floor on August 26, 2011, and Complainant paid Respondent the full $8,441.87 contract amount. Complainant requested that the Registrar require Respondent to “[i]nstall vinyl wood plank flooring that conforms to the sample provided” to resolve his Complaint. Complainant stated as follows: [Respondent’s] sales representative showed Complainant a sample of Adura AW521 Georgian Spalted Maple (Natural) that had no dark markings on it. [Respondent’s] sales representative also suggested Complainant look at the Mannington (manufacturer) website, where Complainant saw a picture of the AW521 with no dark markings. Complainant ordered the AW521 with no dark markings. Complainant ordered the AW521 based upon the sample provided. [Respondent] had a subcontractor install the AW521 at Complainant’s home. During the five days that the flooring was being installed, [Respondent] did not have a representative on site at any time during the installation. The flooring installed has a very different pattern than the sample shown to Complainant, or the picture from the Mannington website. Complainant is an eighty year-old man confined to a wheelchair due to having had Polio as a youth. Since the time that [Respondent’s] sales representative confirmed that the flooring did not conform to the sample, the sample has [disappeared] and [Respondent] has failed to produce it despite formal discovery attempts.[1]

The Registrar assigned the Complaint to its inspector, Jim Dimond, for investigation. Inspector Dimond performed a jobsite inspection and on May 29, 2012, issued a Corrective Work Order (“CWO”) that required Respondent to perform certain corrective action to resolve Complainant’s Complaint within fifteen calendar days, in relevant part as follows: Item- (condensed) Complainant contends that product #AW521 was ordered but AW522 was installed.

After inspection and investigation, it is the Inspector’s opinion that the manufacturer placed product in boxes marked AW521 that are actually product AW522. It is incumbent upon a contractor to ensure that the product being installed is in fact the product that was ordered. Contractor is to correct the condition in an appropriate manner.

After Respondent failed to resolve Complainant’s Complaint to his satisfaction, the Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2) and A.R.S. § 32-1154(A)(23). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on March 5, 2013, April 19, 2013, and April 22, 2013. Inspector Dimond testified. Complainant submitted thirteen exhibits and presented the testimony of three witnesses: (1) Complainant; (2) Elena D. Ervin, Complainant’s caretaker; and (3) Mary Kathleen (“Katie”) Kauffman, Complainant’s daughter, who cared for Complainant and acted as his “girl Friday” on Ms. Ervin’s days off. Respondent submitted fourteen exhibits and presented the testimony of four witnesses: (1) Robert Bauerle, Respondent’s Design Consultant, who sold the flooring to Complainant; (2) Ron Payton, an account representative for Longust Distributing, which distributed the flooring to Respondent; (3) Megan Harris, a regional manager for Mannington Mills, which manufactured the floor; and (4) Phil Koufidakis, Respondent’s president. Hearing Evidence The Contract Complainant is 85 years old. He retired after practicing law in Arizona for 50 years. As noted in the Complaint, Complainant is confined to a wheelchair. Since Complainant’s wife passed away, he has relied upon Ms. Ervin and Mrs. Kauffman to help him with many of his day-to-day activities. During the relevant time period, Ms. Ervin helped Complainant on Mondays, Wednesdays, and Fridays and Mrs. Kauffman helped Complainant on other days.

During the summer of 2011, Complainant was considering replacing the carpet that his deceased wife had chosen for their home with a Stainmaster carpet because its lower pile would offer less resistance to his wheelchair and he has a little dog. Complainant saw Respondent’s advertisement in the newspaper that stated that Respondent’s business was started in1946, when its founders got out of the navy. Because Complainant also got of the navy in 1946, he decided to call Respondent. Because Complainant is disabled, Mr. Bauerle took Stainmaster carpet samples to Complainant’s home. When Complainant explained his reasons for replacing the carpet, Mr. Bauerle suggested vinyl tile flooring and suggested that Complainant go to Mannington’s website to look at available products. Mr. Bauerle testified that Complainant later called him because he was interested in Mannington’s vinyl plank flooring. Vinyl plank flooring is a product that is manufactured to approximate the appearance of wood flooring with photographs of various species of wood printed on the vinyl planks. The planks are installed either by gluing them down on the concrete subfloor or snapping the planks together to form a floating floor. Mr. Bauerle testified that he took four samples of Mannington Adura vinyl plank flooring to Complainant’s residence and at Complainant’s request, left the samples so that Complainant could show them to his daughter. Mr. Bauerle testified that all the samples were 16” x 16”. Complainant testified that he has Copenhagen furniture and that he wanted a floor that would go with the furniture. Complainant submitted a printout from Mannington’s website that showed a small photograph of the sample for Adura vinyl plank flooring in the pattern Spalted Georgian Maple and the color Natural (AW521), which showed a relatively clear grain with only a few dark lines on it.[2] Complainant testified that he selected the Mannington Adura vinyl plank flooring in Spalted Georgian Maple in the color Natural (AW521) based on the sample that Mr. Bauerle showed him and the photograph on Mannington’s website. Complainant testified that he liked the Mannington Adura vinyl plank flooring in Spalted Georgian Maple in the color Natural (AW521) because it was 95% clear and did not have a lot of dark lines or swirls on it. Complainant acknowledged that he would not have made a choice based solely on the website and that the sample would be a better representation of the flooring. Mrs. Kauffman testified that she consulted with her father when he chose the flooring and that they both liked the sample for the Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and the color Natural (AW521) because it had a relatively clear grain. Ms. Ervin testified that she was present when Mr. Bauerle showed Complainant the Mannington Adura vinyl plank flooring samples. Ms. Ervin testified that Complainant told Mr. Bauerle that some of the samples were “too busy” and that Mr. Bauerle responded that he had another version in a lighter color. Mr. Bauerle testified that a day or so after he left the samples, he called Complainant to follow up and Complainant stated that he had selected a sample of the vinyl plank flooring that he wanted Respondent to install. Mr. Bauerle testified that he went out to Complainant’s residence to prepare and to have Complainant sign the contract. Mr. Bauerle testified that when he prepared the contract, he went over the pattern and color that Complainant had selected, had Complainant verify the selection, and discussed the cost and installation process with Complainant. On or about August 2, 2011, Complainant signed a contract for Respondent to install Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521) in the living room, family room, master bedroom, den, and hallway at his residence, for a total price of $8,441.87. Above the signature line on the contract the following notation appeared: “[T]he undersigned, intending to be legally bound, have signed their name on the date indicated above. Subject to terms and conditions on the reverse of this page.”[3] Term No. 7 on the reverse side of the contract that Complainant signed provided as follows: Products selected from the samples may vary from actual materials delivered due to dye lot, shade or color variation. Samples are approximate representation. It is the Buyer[’]s responsibility to inspect materials at the job site before installation. No adjustments or cancellations will be allowed on installed materials.[4]

Complainant testified that he did not read the reverse side of the contract. Complainant testified that in his 50 years of practicing law, he had prepared thousands of contracts and that he always required signatories to initial or countersign fine print that set forth additional terms and conditions. Complainant acknowledged that he was on notice of the need to inspect the floor prior to installation. Mr. Bauerle testified that Respondent’s policy is not to leave samples with customers after the customer signs the contract because there is no longer any reason for the customer to have the samples. Mr. Bauerle testified that Respondent only has two samples of each product for each store. Mr. Bauerle testified that after Complainant signed the contract, Mr. Bauerle took the four samples back to Respondent’s Camelback store. Ms. Ervin testified that after Complainant signed the contract, Mr. Bauerle left the sample of the flooring that Complainant had chosen. Ms. Ervin testified that several years earlier, a different carpet than Complainant had chosen was installed. Although the carpet installer had recognized its mistake and corrected its error, Ms. Ervin testified that she put an “X” or a “star” on the back of the sample that Mr. Bauerle left with Complainant to make sure that Respondent installed the right floor. The Installation of the Floor Respondent’s subcontractor started installing the floor on Tuesday, August 23, 2011, or Wednesday, August 24, 2011, using the glue-down method. Complainant remained at the residence during the installation. Complainant testified that Respondent’s subcontractor’s crew left unopened boxes of flooring in another room. Complainant testified that he could not lift the 27-pound boxes to open them and to examine the flooring and that Respondent’s subcontractor did not lay out the flooring for Complainant to inspect before it was installed. Complainant acknowledged that he did not ask the subcontractor’s crew to lay out the flooring so that he could examine it before it was installed, although at least one member of the crew spoke English. Mr. Koufidakis testified that Respondent’s policy does not require a salesperson or customer service representative to go to the jobsite before a product is installed in a customer’s property to ensure that the product that the customer selected has been delivered. Inspector Dimond testified that some contractors verify that a customer has chosen a material before installing the material and that some contractors do not perform such verification. Inspector Dimond testified that if Respondent hired a subcontractor to install the flooring, industry standards do not require Respondent to have an employee on site to supervise the subcontractor. Mr. Bauerle testified that because he does not have anything to do with installation, he normally calls customers after the flooring has been installed. Because Mr. Bauerle felt that the installation might be stressful for Complainant because he would be confined to certain areas of the house, Mr. Bauerle called Complainant after Respondent started work on the project. Mr. Bauerle testified that although he did not contact Complainant after the subcontractor started installing the floor, he gave Complainant his cell phone number and instructed Complainant that he should not hesitate to call Mr. Bauerle if anything came up during installation. Mr. Bauerle testified that Complainant did not call him during the time Respondent’s subcontractor installed the vinyl plank flooring. Complainant testified that because rolling his wheelchair on the vinyl plank flooring before it cured could cause damage, the subcontractor’s crew advised him to remain in his bedroom and home office at the back of the house until installation was complete. Although the flooring was installed first in those rooms, Complainant testified that indoor/outdoor carpet was laid on top of the flooring to protect it and that he was not able to see very much of the floor. Complainant testified that on Monday, August 22, 2011, furniture was moved and that by Thursday, August 25, 2011, the floor was installed except for the transition strips in the doorways. On or about August 25, 2011, Mrs. Kauffman at Complainant’s request filled out Respondent’s Certificate of Completion and Acceptance, rating as “Excellent” the quality of the installation and seams and adding the following comments: It’s wonderful! The moulding for tile needs to be installed. – The installers were great!! Very nice and accommodating! Thank you![5]

Mrs. Kauffman testified that she was praising Respondent’s subcontractor’s crew’s installation, not commenting on whether the correct floor had been installed. Mrs. Kauffman acknowledged that she never compared the sample that Mr. Bauerle had allegedly left with Complainant to the flooring that was installed. Complainant testified that Mrs. Kauffman had no idea that he was dissatisfied with the floor that was installed. Complainant acknowledged that Respondent’s subcontractor installed Mannington Adura vinyl plank flooring in Spalted Georgian Maple in the color Natural (AW521), but stated that he never would have chosen the flooring if the sample had shown the “mind-boggling” swirls, lines, grain, and “busy-ness” of the flooring that was installed in his residence. Mrs. Kauffman also acknowledged that Mannington Adura vinyl plank flooring in Spalted Georgian Maple in the color Natural (AW521) was installed in Complainant’s residence. The Complaint about the Floor Mrs. Kauffman testified that on Thursday, August 25, 2011, she observed that the flooring was mostly installed and that the floor showed many more knots than were shown on the sample. Mrs. Kauffman testified that she did not say anything at the time because she did not want to interfere, but that within the next day or so, Complainant stated that the flooring that was installed was not what he ordered. Complainant testified that he first noticed that Respondent had not installed the floor that he had ordered on Friday of the week that it was installed, August 26, 2011. Complainant testified that he made a telephone call to Mr. Bauerle to complain on the first day of the next week, when he had an appointment with his dentist, but that Mr. Bauerle was on vacation in Italy. Complainant acknowledged that although his day planner showed the dentist appointments on Monday, August 29, 2011, and Thursday, September 1, 2011, the only specific comment about the floor was the notation on Tuesday, August 30, 2011, that Respondent would bring the “Once and Done” cleaning solution.[6] Complainant’s day planner indicated that he called Mr. Bauerle on Tuesday, August 30, 2011, and left a message, but that there was no reply.[7] Complainant testified that he did not write everything in the day planner and if something was missing, it did not mean that it did not happen. Mr. Bauerle testified that the first time that Complainant contacted Respondent after the installation was when he complained to Respondent’s installation manager, Chris Trzeciak, that the transition molding strips that Respondent installed between different kinds of flooring in Complainant’s residence were too high. Mr. Bauerle testified that Mr. Trzeciak did not say that Complainant had any problems with the flooring. Mr. Bauerle testified that he went to Complainant’s residence on September 5 or 6, 2011, with samples of different kinds of molding that could be used for the transition strips. Mr. Bauerle testified that he did not bring a sample of Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521) because Complainant had not complained about the appearance of the flooring. Mr. Bauerle testified that when he arrived at Complainant’s residence on September 5 or 6, 2011, Complainant told him that Respondent had installed the wrong flooring because the samples that he had been shown did not have as many knots as the flooring that Respondent’s subcontractor installed. Mr. Bauerle testified that he said he would have to obtain a sample of the floor that Complainant had ordered to compare to the floor that was installed. Mr. Bauerle testified that he subsequently brought a sample of Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521) from Respondent’s Paradise Valley store to compare to the flooring that had been installed in Complainant’s residence. Mr. Bauerle testified that he determined that the flooring that was specified in the contract had been installed. Complainant testified that Mr. Bauerle initially agreed that Respondent had installed the wrong flooring. Complainant submitted Mr. Bauerle’s September 29, 2011 e-mail to Mr. Koufidakis and Mr. Trzeciak that stated in relevant part as follows: The following statements are NOT CORRECT!

Tues Sept 6:

I did NOT tell him that the material installed was not the material he ordered. I only agreed with him that the actual product had “MORE KNOTS” than the sample showed. Also, I never viewed anything with him on the computer. He called me the following day and told me that he thought the wrong color was installed, by the information he found on the Mannington website. . . .[8]

The Allegedly Missing Sample On March 23, 2012, Complainant’s attorney took Mr. Bauerle’s deposition in Complainant’s civil action against Respondent. Mr. Bauerle testified in relevant part as follows: Q. Within how much time, or how long after that initial visit to check the moulding and you were told that [Complainant] believed the wrong flooring was installed, how long after that did you come back with the sample?

A. I believe it was within a day or two.

Q. And it was the same exact sample that was in – that you had brought to [Complainant] previously?

A. No.

Q. It wasn’t the same exact sample?

A. I don’t believe so.

Q. Do you know what happened with that original sample?

A. When I sold [Complainant] his flooring, I was working out of our Camelback store, so I had taken the Camelback sample out initially during his section process.

Q. Do you know whether that original sample is still located at the Camelback store?

A. I do not know about the whereabouts of that sample currently.

Q. Did the same from the Camelback store look or match the sample from the Paradise Valley store?

A. I don’t know. I hadn’t put the two of them together.[9]

Mr. Bauerle testified that after he retrieved the samples, he had not reason to keep track of them. Mr. Bauerle testified that after Complainant filed the civil action against Respondent, Mr. Koufidakis collected samples from all of Respondent’s stores to compare them and provided photographs of the samples to Complainant’s attorney. Complainant testified that he did not know that Ms. Ervin had marked the sample that Mr. Bauerle had left. Complainant testified that the sample was 25” x 28”. Mr. Koufidakis testified that most of Respondent’s samples of Mannington Adura vinyl plank flooring are 16” x 16”, although the size of samples may vary somewhat depending on the size of the showroom. Mr. Koufidakis testified that Respondent does not carry any samples that are sized 25” x 28”. Mr. Koufidakis testified that Respondent’s policy is that samples are not supposed to leave the showroom and that customers are not allowed to take samples from the showroom. Respondent produced three samples of Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521) that it used to market the flooring.[10] Complainant, Ms. Ervin, and Mrs. Kauffman all testified that none of the samples that Respondent produced after the dispute arose looked like the sample that Mr. Bauerle had left with Complainant. Complainant, Ms. Ervin, and Mrs. Kauffman all testified that the sample that Complainant had chosen looked like the photograph on Mannington’s website of the Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521), in that it had a relatively clear grain and that all of the samples that Respondent later produced had more swirls and knots. Complainant testified that the first time that Mr. Bauerle came out to the house after Complainant complained that the wrong floor had been installed, Complainant still had the sample. Complainant testified that Mr. Bauerle placed the sample on the floor of the living room. Complainant testified that at his request, Mr. Bauerle took the sample to find a better match for it. Complainant testified that he may have seen the sample under Mr. Payton’s arm when he performed his inspection. Ms. Ervin testified that after Complainant complained about the floor, someone from Respondent, perhaps Mr. Payton, took the sample when Complainant wanted to put the sample on the floor to see if it matched. Mrs. Kauffman testified that after Complainant realized that Respondent had installed the wrong floor, the sample that Mr. Bauerle had left “magically disappeared.” Ms. Ervin testified that after the sample that she had marked was taken, she went to Respondent’s Camelback store to find the sample. Ms. Ervin testified that she did not find the Mannington Adura vinyl plank flooring sample of the pattern Spalted Georgian Maple and color Natural (AW521) that she had marked at Respondent’s Camelback store. Inspector Dimond’s Testimony Inspector Dimond performed a jobsite inspection on May 21, 2012. Inspector Dimond acknowledged that the installation of the vinyl plank flooring in Complainant’s residence was professional and workmanlike. Respondent’s customer service representative, Dan Davis, attended the jobsite inspection on its behalf. Mr. Davis had no previous involvement with Complainant and did not bring any samples of Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and the colors Natural (AW521) or Honey (AW522). Inspector Dimond testified that Mr. Davis had very little to say at the jobsite inspection and was “noncommittal.” Mr. Koufidakis testified that the first time he heard the claim that Respondent had installed a different product than what Complainant had ordered was when he received the CWO. Mr. Koufidakis acknowledged that he had very little experience with customer complaints that have been filed with the Registrar. Mr. Koufidakis stated that Respondent’s salespersons do not go to the Registrar’s jobsite inspections. Inspector Dimond testified that Complainant stated at the jobsite inspection that the flooring that Respondent installed did not match the sample that he had been shown and that the samples in Respondent’s attorney’s possession were not what he had been shown when he selected the flooring. Inspector Dimond testified that at the jobsite inspection, Complainant showed him a box of the flooring that Respondent had installed that was marked “Mannington Adura Spalted Georgian Maple Natural AW521.” Inspector Dimond testified that he consulted Mannington’s website and saw that the photograph on the website of Adura Spalted Georgian Maple in Natural AW521 showed much less knurling than the photograph of Adura Spalted Georgian Maple in Honey AW522. Inspector Dimond testified that based on the photographs on the Mannington website, Complainant’s Complaint, and his jobsite inspection, he concluded that Respondent had placed the wrong product in the boxes and HAD installed Adura vinyl plank flooring in the pattern Spalted Georgian Maple in the color Honey (AW522) in Complainant’s residence rather than the color Natural (AW521) that Respondent had contracted to install. Inspector Dimond testified that if a different product is delivered than what the customer ordered, it is incumbent upon the contractor to obtain clarification before it installs the product. Inspector Dimond also testified that although terms such as Paragraph No. 7 in Respondent’s form contract were not uncommon in the construction industry because homeowners frequently do not oversee construction projects, the contractor must ensure that materials that are permanently affixed to a homeowner’s property are what he ordered. Inspector Dimond acknowledged that it was Complainant’s responsibility to inspect the flooring before it was installed to make sure that it conformed to the sample that Complainant had selected. Inspector Dimond acknowledged that he does not “dive into” a case before a jobsite inspection. Inspector Dimond acknowledged that he did not request a sample of the Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple in any color at the inspection. Inspector Dimond acknowledged that he had never seen representations of Adura vinyl plank flooring in the pattern Spalted Georgian Maple in the colors Natural (AW521) or Honey (AW522) except at Mannington’s website. Inspector Dimond testified that a sample would be more accurate than the picture on the website. Mr. Payton testified that it was “absurd” to think that Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Honey (AW522) could have been mistakenly placed in cartons marked Natural (AW521). Mr. Payton explained that the products are manufactured in China and that after the factory is set up, the typical product run consists of hundreds of thousands of lineal feet. Mr. Payton testified that due to the high cost of changing to setup to manufacture a different color or pattern, it is virtually impossible that a product could be placed in an incorrectly labeled box for distribution. Inspector Dimond acknowledged that if Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521) was installed in Complainant’s residence, Respondent had no obligation to comply with the CWO. Respondent’s Investigation of the Complaint Mr. Koufidakis testified that if a customer complains that an installed product does not match the color or pattern of what the customer ordered, Respondent’s standard operating procedure is to involve the distributor and the manufacturer. Mr. Koufidakis testified that he involves the distributor and manufacturer because such a complaint is a product issue, rather than an installation issue. Mr. Payton testified that he first heard about Complainant’s Complaint from Respondent’s installation manager, Chris Trzeciak, when Mr. Payton was about to go on vacation over Labor Day. Mr. Payton testified that he obtained the packing list/invoice for the product that was ordered for Complainant’s job[11] and verified that the Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521) that was specified on the contract had been shipped to and installed in Complainant’s residence. Mr. Payton testified that he spoke to the buyer at Longust Distributing and determined that there had been no reported problems about the quality of the batch that included the flooring that had been installed in Complainant’s residence. Mr. Payton testified that he performed an inspection of Complainant’s floor in mid-September 2011. Mr. Payton testified that he put a 16” x 16” sample of Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521) on Complainant’s floor and that that color and pattern on the sample were indistinguishable from the color and pattern on the installed floor. Mr. Payton did not recall where he got the sample, whether it was from Longust Distributing or from one of Respondent’s stores. Ms. Harris testified that at Mr. Payton’s or Mr. Koufidakis’s request, she inspected the floor in Complainant’s residence in October 2011. Ms. Harris testified that before the inspection, she picked up a sample of Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521) at Respondent’s Camelback or Paradise Valley store. Ms. Harris testified that she verified that the vinyl plank flooring installed in Complainant’s residence was Mannington Adura in the pattern Spalted Georgian Maple and color Natural AW521 and that the flooring had no manufacturing defects. Ms. Harris took a photograph of Complainant’s floor with the sample of Adura Spalted Georgian Maple in Natural AW521 laid on it; the color and pattern on the sample were indistinguishable from the color and pattern on the installed floor.[12] Ms. Harris testified that she believed that she returned the sample that she had used in her inspection to Respondent’s store on Camelback Road. Based on Ms. Harris’s inspection, Robbin VanAtta-Duber, Mannington’s Manager of Residential Claims, wrote a letter to Mr. Koufidakis dated October 17, 2011, that provided in relevant part as follows: I am writing in reference to the claim filed on [Complainant’s] Mannington Adura Plank floor covering, pattern AW522. I am sorry to hear of [Complainant’s] concern, and I appreciate your bringing the situation to my attention.

As discussed, I have thoroughly reviewed [Complainant’s] claim and concur no manufacturing or warranted conditions have been found. Review of the pictures show [Complainant’s] floor is displaying the appropriate appearance meant for this type of floor.

I can assure you if at anytime during review of [Complainant’s] claim an obligation on Mannington’s part had been shown his claim would have been handled accordingly. Mannington is a company that does the right thing; however, the condition of their floor covering is not warranted; therefore, I am unable to make any adjustments on this claim.[13]

On or about October 17, 2011, Mr. Koufidakis forwarded Ms. VanAtta-Duber’s October 17, 2012 letter to Complainant.[14] Ms. Harris testified that Ms. VanAtta-Duber’s reference to pattern AW522 in the October 17, 2011 letter was a typographical error. On or about November 2, 2011, Complainant responded to Ms. VanAtta- Duber’s October 17, 2011 letter, in relevant part as follows: Thanks for your letter dated October 17, 2011 with which you enclosed an unsigned letter from Robbin VanAtta-Duber of that same date, to the effect that [Complainant] got what he ordered. It seems to me that Ms. VanAtta-Duber compared the photos that Megan Harris took of my floor on October 5th with the photos in the Mannington website.

The problem is that the photos Ms. Harris took, the reference in Ms. VanAtta-Duber’s letter and the website photos all refer to pattern 522 which is not the pattern that is on the contract I signed on August 2, 2011, copy enclosed. The contract clearly shows that the order was for pattern AW521.

By you folks telling me that I ordered pattern 522 and, apparently not looking at the contract, it appears to me that you have been “hoist by your own petard.”

When I was in the selection process, your salesman, Rob Bauerle, recommended that I check with the Mannington website to compare the various patterns available for Adura which I did. Enclosed are copies from that website:

Product 521 and Product 522. You can plainly see the pattern difference.

Phil, I am 85 years of age and I am stuck in a wheelchair for the rest of my time on earth. That is the reason I exceeded my budget and decided on Adura – It would be easier to roll my wheelchair on the smooth surface.

Phil, we could settle this matter amicably if you would arrange for me to select another pattern of Adura and [Respondent] install it over the existing floor at no additional cost to me including reimbursement to me for the $520 I paid to the furniture movers.

I do not wish to go through the hassle of a lawsuit with [Respondent], but I will if it is necessary.

In her letter, Ms. VanAtta-Duber states: “Mannington is a company that does the right thing.” Let’s take her at her word. I think they sent you the wrong pattern.[15]

On November 10, 2011, Ms. VonAtta-Duber sent Mr. Koufidakis a corrected copy of the October 17, 2011 letter that was identical to the original letter except that “AW522” in the first line had been changed to “AW521.”[16] On that same date, Mr. Koufidakis forwarded a copy of the corrected letter to Complainant. On or about November 22, 2011, Complainant sent a letter to Mr. Koufidakis, responding to the November 10, 2011 letter changing the product number, in relevant part as follows: If it is important that things be labeled correctly then it seems to me that the contents should be the same as represented by the label.

So now we come to the crux of my argument:

The Mannington Website clearly shows two photos of Spalted Georgian Maple:

One photo shows AW521 Natural; and the other shows AW522 Honeytone.

On August 1st your salesman, [Mr. Bauerle], brought samples of both of them and I selected AW521 because it looked like the one on Mannington’s Internet and it did not show all the swirls every few inches.

Now, I refer you to my letter dated September 27 and the entry for Tuesday, September 6th when your salesman, [Mr. Bauerle], came to my house and we jointly inspected the flooring. [Mr. Bauerle] departed and took my AW521 sample with him.

And now, the saga of the missing AW521 sample! . . . .

So, Phil, my friend, it boils down to this:

The Mannington Website is MISLEADING and I relied on it in choosing my flooring; and

The sample that I used to select my flooring has (mistakenly) (conveniently) disappeared. You choose which adjective fits.[17]

Mr. Koufidakis testified that if Respondent had determined that the wrong product had been installed, it would have replaced the product immediately. Mr. Koufidakis testified that Respondent did nothing wrong in Complainant’s claim because Complainant ordered Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521), the distributor provided Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521), and Respondent installed Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521). Mr. Koufidakis testified that Respondent was not going to install a different Mannington Adura product in Complainant’s residence because Respondent did nothing wrong. Mr. Koufidakis acknowledged that Mr. Trzeciak had offered to replace some of the planks as an accommodation to Complainant[18] but testified that the accommodation did not impact his assessment that Respondent had done nothing wrong. Mr. Koufidakis testified that Complainant had rejected Respondent’s proffered accommodation. The Nature of Mannington’s Samples and Representations on the Website Mr. Payton and Ms. Harris testified that Mannington’s website shows two colors for the pattern Adura Spalted Georgian Maple: (1) Natural (AW521); and (2) Honey (AW522). Natural is the lighter shade. Mrs. Kauffman testified that the photograph at Mannington’s website for Adura Spalted Georgian Maple vinyl plank flooring in the color Honey (AW522) is darker than the photograph for Natural (AW521). Mrs. Kauffman testified that the photograph for Honey (AW522) also shows more swirls than the photograph for Natural (AW521). The Mannington website has an option to show an entire floor with the selected product installed.[19] Mr. Payton testified that when the room size for Adura Spalted Georgian Maple in the color Natural (AW521) is clicked at Mannington’s website, a room in which Adura Spalted Georgian Maple in the color Honey (AW522) is shown because the pattern is the same and the manufacturer saved money by only installing the pattern in one room. Mr. Payton testified that even an 85-year-old man should know from Mannington’s website that Adura Spalted Georgian Maple is one pattern, even though it comes in two colors. Ms. Harris and Mr. Payton testified that the only difference between Mannington Adura vinyl plan flooring in the pattern Spalted Georgian Maple in the color Natural (AW521) and Adura vinyl plank flooring in the pattern Spalted Georgian Maple in the color Honey (AW522) is that Honey is darker than Natural, but that the two colors have the same pattern. Mr. Payton testified that the Adura Spalted Georgian Maple pattern had “a lot of action.” Ms. Harris testified that the manufacturer prepares the samples and that all the samples are different, but all represent the same flooring. Ms. Harris testified that there were eight different planks in the Adura Spalted Georgian Maple pattern. Ms. Harris testified that although the samples do the best job possible to represent the appearance of the floor, it is impossible for a 16” x 16” sample to show the appearance of an entire installed floor. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[20] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[21] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[22] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[23] Complainant did not allege at the hearing that Respondent failed to install the Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521) that was specified in the contract. Instead, the gravamen of Complainant’s complaint is that Mr. Bauerle and Mannington’s website allegedly provided samples of the flooring that did not accurately depict the flooring’s characteristics, specifically, the degree of swirling, knottiness, and knurling, and that Complainant reasonably relied on the inaccurate samples to his detriment when he signed the contract. Because Complainant acknowledged that Respondent installed the Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521) in his residence that written contract required, Complainant did not establish that Respondent departed from an applicable building specification in violation of A.R.S. § 32-1154(A)(2).[24] When Inspector Dimond issued the May 29, 2012 CWO, he did not have the benefit of any samples of Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple in the colors Natural (AW521) or Honey (AW522). Inspector Dimond acknowledged that he issued the CWO based upon his belief that Respondent had installed Mannington Adura vinyl plank flooring in Spalted Georgian Maple in the color Honey (AW522) in Complainant’s residence rather than in the color Natural (AW521) that the contract required. Inspector Dimond also acknowledged that if his belief was later shown to be unfounded, Respondent would have no obligation to comply with the CWO. Because Respondent’s installation of the Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521) that the contract required provides a legal justification for its failure to comply with the May 29, 2012 CWO, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(23).[25] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, Complainant Lew Cook’s Complaint in Case No. 2012- 2313 against Respondent Baker Brothers Floorcovering Inc. dba Baker Bros. Area Rugs and Flooring’s License No. K-8.162303-D shall 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, May 9, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Before Complainant’s attorney filed the Complaint with the Registrar, he filed a civil lawsuit against Respondent in Moon Valley Justice Court Precinct of Maricopa County, State of Arizona, Case No. CC2011-238374 (footnote added). [2] See Complainant’s Exhibit 3. [3] Respondent’s Exhibit 1 at 1. [4] Id. at 1. [5] Respondent’s Exhibit 2. [6] See Respondent’s Exhibit 4 at Cook 043. [7] See Respondent’s Exhibit 4 at Cook 043. [8] Complainant’s Exhibit 11 at BAKER 00034-00035. [9] Complainant’s Exhibit 22 at 25-26, ll. 14-11. [10] See photographs of samples at Complainant’s Exhibits 12, 13, 14. The actual samples were on display as demonstrative exhibits throughout the hearing. [11] See Respondent’s Exhibit 3. [12] See Respondent’s Exhibit 8 at Baker 00016. [13] Complainant’s Exhibit 9; Respondent’s Exhibit 8 at 2. [14] See Respondent’s Exhibit 8 at 1. [15] Respondent’s Exhibit 9. [16] See Respondent’s Exhibit 10. [17] Respondent’s Exhibit 11. [18] See Complainant’s Exhibit 11 at 40. [19] See Complainant’s Exhibit 3. [20] See A.R.S. §§ 32-1151 to 32-1169. [21] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [22] See A.A.C. R2-19-119(B)(2). [23] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [24] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [25] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

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