ALJDEC decisions subject to certification as final

2012A-3412-ROC · Registrar of Contractors · 2012-12-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 3, 2012, at 1:00 p.m. APPEARANCES: Mission Bank (hereinafter “Complainant”) appeared through its attorney, Jeffrey A. Goldberg, Esq., Bruno, Brooks & Goldberg, P.C. Cyndi’s Floors N More LLC (hereinafter “Cyndi”) appeared through its qualifying party and member, Cynthia Ann Torgerson. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Cyndi is the holder of License No. K-8.264170-D issued by the Registrar of Contractors. 2. This is a commercial matter where Cyndi supplied and installed new carpet tiles throughout Complainant’s building. 3. Complainant was dissatisfied with Cyndi’s workmanship and requested appropriate corrective action. When Cyndi failed to comply with Complainant’s request for correction, Complainant filed a formal Complaint against Cyndi with the Registrar of Contractors. 4. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Cliff Corlett (hereinafter “Inspector Corlett”), conducted an onsite inspection. Inspector Corlett issued a written Corrective Work Order on July 27, 2012, directing Cyndi to perform designated corrective work on the carpet tiles in Complainant’s building. 5. The Corrective Work Order provided, in pertinent part, as follows: State statutes and the policies of the Registrar of Contractors (ROC) require building contractors to stand behind their workmanship and the materials they supply for a period of two years from the date of completion. The Respondent has supplied this office with documents from the manufacturer stating that the problem is improper installation, (workmanship). The Respondent has also supplied this office an independent inspection that indicates the problem is defective material, (material). There does indeed appear to be a significant danger of many trip hazards and liability through out this installation. Time should be of the essence in resolving these conditions. Respondent should determine cause and correct all carpet square / installation problems.

6. Inspector Corlett testified that he conducted an onsite inspection on July 26, 2012. Inspector Corlett stated that he observed that numerous carpet tiles were lifting creating tripping hazards in Complainant’s building. Inspector Corlett testified that Complainant submitted documentation indicating that the unacceptable carpet tile lifting was due to poor workmanship. Cyndi submitted the results of an independent carpet evaluation indicating that the problem was caused by a manufacturer’s defect. Inspector Corlett testified that based upon the Registrar’s Workmanship Standards, it was Cyndi’s responsibility to correct the problem by an appropriate method regardless of whether it was a workmanship or material problem.[1] Inspector Corlett stated that he conducted a pre-hearing inspection on the morning of December 3, 2012. Inspector Corlett testified that there had been no change in the condition of the carpet tiles since the original inspection.[2] 7. The qualifying party of the general contractor for the construction project,[3] Kevin Charles Orr (hereinafter “Mr. Orr”), testified that Cyndi provided all of the labor and material for the construction project. Mr. Orr stated that he noticed the problem with the carpet tiles lifting within two to three weeks after installation. Mr. Orr testified that he has repeatedly tried to get Cyndi to correct the problem with the lifting carpet tiles. Mr. Orr stated that a manufacturer’s representative showed him that the carpet tiles were installed too tightly.[4] 8. Mr. Orr acknowledged that the general contractor had provided some of the glue for Cyndi to lay the carpet tiles. Mr. Orr testified that there was a deadline and Cyndi ran out of glue so the general contractor provided additional glue. Mr. Orr stated that the additional glue was utilized in three small offices. Mr. Orr testified that the carpet tile lifting was evident throughout the construction project. Mr. Orr stated that he agreed with Cyndi to have the carpet installation inspected by an independent inspector. Mr. Orr testified that he received the inspection report prepared by the independent inspector. Mr. Orr stated that he did not agree or disagree with the inspection report.[5] 9. Mr. Orr acknowledged that he had the carpet installation inspected by an alternative flooring contractor.[6] Mr. Orr testified that the alterative flooring contractor indicated that the problems with the carpet tiles could be corrected for approximately $1,000.00. Mr. Orr stated that the alternative contractor did not perform any corrective work on the carpet tiles.[7] 10. Mr. Orr acknowledged that one carpet tile was pulled up to inspect the trowel size used by Cyndi. Mr. Orr testified that the carpet tile was then reinstalled. Mr. Orr stated that no one performed any corrective work on the carpet tiles installed by Cyndi. Mr. Orr testified that he only lifted one carpet tile to look at the trowel marks.[8] 11. Robert Allen Bernard (hereinafter “Mr. Bernard”) testified that he is a professional carpet installer and that he inspected the carpet tiles installed by Cyndi at Complainant’s building. Mr. Bernard opined that Cyndi had utilized the wrong notched trowel. Mr. Bernard stated that he believes that the problem with the carpet tiles can be corrected.[9] 12. Steve DeWitt (hereinafter “Mr. DeWitt”), an officer for Riviera Carpet Warehouse LLC (hereinafter “Riviera”), testified that Riviera performed no corrective work on the carpet tile installation at Complainant’s building. Mr. Dewitt stated that he had never been in Complainant’s building.[10] 13. John Wabeke (hereinafter “Mr. Wabeke”) testified that he is an independent floor covering inspector. Mr. Wabeke stated that he inspected the carpet tile installation in Complainant’s building on February 3, 2012. Mr. Wabeke testified that he provided the parties with a copy of his written report.[11] Mr. Wabeke opined that carpet tile lifting problem in Complainant’s building was the result of defective carpet tiles. Mr. Wabeke stated that he observed that approximately 50% of the carpet tiles were lifting.[12] 14. An employee of Cyndi, Billy Shane Hackemack (hereinafter “Mr. Hackemack”), testified that he is a master floor installer. Mr. Hackemack stated that he worked on the carpet tile installation in Complainant’s building. Mr. Hackemack testified that the carpet tiles were not square. Mr. Hackemack testified that he called the shop and informed it that the carpet tiles were not square. Mr. Hackemack testified that he was told to install the carpet tiles despite the fact that they were not square.[13] 15. Cyndi’s employee, Christopher Ryan Martinez (hereinafter “Mr. Martinez”), testified that he installed some of the carpet tiles in Complainant’s building. Mr. Martinez testified that he ran out of glue. Mr. Martinez stated that the general contractor then provided the wrong type of glue. Mr. Martinez testified that he informed the general contractor that the manufacturer of the carpet tiles would not honor its warranty unless the correct type of glue was utilized. Mr. Martinez stated that the wrong type of glue was utilized for all of the offices and a portion of the conference room.[14] 16. Administrative notice is taken of Cyndi’s prior license record as reflected on the Registrar of Contractors’ public website on December 6, 2012. Such prior license record reflects that License No. K-8.264170-D of Cyndi is current with one open Complaint. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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). 3. Cyndi supplied and installed carpet tiles in Complainant’s building. Approximately 50% of the installed carpet tiles are lifting creating a health and safety danger for persons using Complainant’s building. This Tribunal concludes that Cyndi violated the charged provision of A.R.S. § 32-1154(A)(3), namely, A.A.C. R4-9-108.[15] 4. The Registrar of Contractors issued a Corrective Work Order on July 27, 2012, directing Cyndi to determine the cause of the carpet tile lifting and to correct all problems with the carpet tiles in Complainant’s building. The assigned Agency Inspector observed that Cyndi had failed to perform any corrective action on the carpet tiles in Complainant’s building. This Tribunal concludes that Cyndi violated the charged provision of A.R.S. § 32-1154(A)(23).[16] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. K-8.264170-D of Cyndi shall be suspended until the Registrar of Contractors receives and accepts written proof that Cyndi has fully complied with the terms of the written Corrective Work Order issued in this matter. It is further recommended that if Cyndi provides acceptable proof that it has fully accomplished the above-described corrective action on or before the effective date of this Order, then the above provided License suspension shall not take place and that this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Cyndi pay the sum of $250.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D). The failure by Cyndi 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 Cyndi’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Cyndi, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification.

Done this day, December 6, 2012. /s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] The Registrar of Contractors’ book, Workmanship Standards for Licensed Contractors at 7 (June 2009) provides, in pertinent part, as follows:

Contractors who install carpeting should resolve problems regarding manufacturing defects with the manufacturer on behalf of the owner if the contractor was responsible for the sale and or selection of the carpeting. [2] 12/3/12 Hearing Record (hereinafter “H.R.”) at 7:51-11:18. [3] K.C. Orr Builders Commercial Division LLC (License No. B.1-259164-C). [4] H.R. at 11:57-15:20. [5] H.R. at 15:27-21:57. [6] Riviera Carpet Warehouse Inc. (ROC License No. C-8.116078-R). [7] H.R. at 21:58-23:08. [8] H.R. at 23:09-31:43. [9] H.R. at 31:50-33:38. [10] H.R. at 33:39-36:12. [11] See Exhibit R-7 (Arizona Flooring Forensic L.L.C. Report). [12] H.R. at 36:31-52:51. [13] H.R. at 53:25-56:20. [14] H.R. at 56:34-58:17. [15] A.A.C. R4-9-108, provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards.

C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[16] A.R.S. § 32-1154(A)(23) includes among the grounds for disciplinary action against a contractor’s license,

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