ALJDEC decisions subject to certification as final
2017A-4891-CHC-ROC · Registrar of Contractors · 2018-03-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kirk Nielson Development Inc
COMPLAINANT
-v-
Floors Unlimited Inc
License No(s). CR-8.086526-D
RESPONDENT
No. 2017A-4891-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 22, 2018, 8:30 A.M.
APPEARANCES: Dennis Sever, Esq., appeared on behalf of Complainant; John Marsh, owner, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. Floors Unlimited, Inc. (Respondent), is the holder of License Number CR-8.086526-D issued by the Registrar of Contractors (Registrar).
2. On or about September 25, 2017, Kirk Nielson Development, Inc. (Complainant), filed a Complaint against Respondent with the Registrar alleging poor work in connection with the installation of carpeting by Respondent at a residence in Flagstaff, Arizona. Complainant acted as the general contractor in connection with work performed at the residence.
3. Upon completion of an inspection performed by the Registrar on October 18, 2017, the Registrar issued a Directive, dated October 23, 2017, requiring Respondent to correct the alleged deficiency in Respondent’s work by November 8, 2017, as follows
Complaint Item 1: Correct the saddle seam between hallway and master bedroom
4. The Registrar extended the Directive deadline to November 22, 2017.
5. On November 29, 2017, the Registrar conducted another inspection and found that Respondent’s corrective work was not performed in a professional and workmanlike manner. The Registrar then issued a Citation to Respondent, dated November 29, 2017, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);
b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action).
6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for February 22, 2018, at 8:30 A.M. At the hearing, Kirk Nielsen, President of Complainant, and Stanley Friedman testified on behalf of Complainant; John Marsh, President of Respondent, Danny Warrell, and Don Payer testified on behalf of Respondent; Steve Philpott, the Registrar Investigator (Investigator), testified by telephone on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 10 and Respondent’s exhibit numbers 1 - 18.
7. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he testified that the Directive required correction of a saddle seam at the end of the hallway between the master bedroom and the bathroom. He further testified that he observed that Respondent attempted to correct this by removing the saddle seam at the end of the hallway and replacing the entire hallway carpet. He also testified that during the inspection of the corrective work, he observed seams at both ends of the new hallway carpeting and that the new hallway carpet did not appear to be the same shade or color as the originally installed adjacent carpeting. He stated he inspected the carpet for approximately 25 minutes with the lights on and off and the blinds open and closed to rule out the appearance of variations from the light.
8. Kirk Neilsen on behalf of Complainant testified that the new hallway carpet installed by Respondent looks to have a color variation from the originally installed adjacent carpet by Respondent. He stated it looks as if the nap of the new carpeting is installed in a different direction from the original carpeting and the texture feels different when you run your hand through it.
9. Stanley Friedman, the owner of the residence, testified on behalf of Complainant that he has observed a color difference between the new hallway carpeting and the original adjacent carpeting. He also testified that even though the present hallway carpet was installed in November 2017, the color difference is still currently apparent.
10. Danny Warrell testified on behalf of Respondent that he has been installing carpet for 23 years and that he has been doing jobs for Respondent as an independent contractor for 5 to 6 years. He testified that he installed the original carpet at the subject residence on July 27, 2017, came back to repair the seals by installing a saddle seal on October 10, 2017, and also removed the saddle seal by installing the new hallway carpet on November 16, 2017. (Respondent’s Exhibit 16).
11. Mr. Warrell stated that documentation for the new hallway carpet reflects that it came from the same dye lot as the original carpeting although he conceded that he could not or would not be able to tell it came from the same dye lot just by looking at it. (Respondent’s Exhibit 14). He indicated that although the head seams of the new hallway carpet were somewhat visible, he believes the color of the hallway carpet looks the same as the original adjacent carpet. He also stated he did not install the hallway carpet nap in the wrong direction and that his installation of the hallway carpet met carpet industry standards. He further testified that Respondent still retains sufficient carpet from the same dye lot to re-carpet the hallway.
12. Don Payne testified on behalf of Respondent that he has been in the floor covering business as a manufacturer’s representative for 46 years, 24 of which he has owned “Floor Styles.” He testified the Friedmans came to his store to purchase carpeting. He further testified that he was later contacted by Respondent to locate additional carpeting and when he checked with the carpet mill, it had a 12 by 26 foot roll from the same dye lot and from the same original roll. (Respondent’s Exhibit 9). He concluded that there could not be a color difference between the new hallway carpet and the original carpet, although he testified he has never been to the home to compare the carpeting.
13. Mr. Payne further testified that roll crush might be a factor in the appearance of a carpet only for three to four weeks. He further stated that a color variation may be created because the new carpet portion has yet to crimp from traffic and vacuuming.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following
3. Violation of any rule adopted by the registrar.
...
22. Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “A contractor shall perform all work in a professional and workmanlike manner.”
6. Complainant has presented sufficient evidence to establish that Respondent’s work was not performed in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3). The Tribunal is persuaded by the testimony of the Investigator, Kirk Nielsen, and Stanley Friedman that there is a color difference between the newly installed hallway carpet and the adjacent original carpeting.
7. The Tribunal acknowledges that the evidence is uncontradicted that the new hallway carpet came from the same dye lot as the original carpeting and that Respondent may have installed the carpeting in conformance with carpet industry standards. Based on that evidence, one would presume the carpeting should match and be of the same color. However, although the Investigator may not be an expert in carpet installation, the Tribunal believes that he has sufficient experience to discern whether two adjacent pieces of carpet match or whether there is a color difference between the two. To establish a violation, Complainant only has the burden to demonstrate that work was not performed in a professional and workmanlike manner, i.e., that the hallway carpet did not match the originally installed carpeting; it does not have the burden to explain the reason carpeting apparently from the same dye lot does not match.
8. Complainant has also presented sufficient evidence to demonstrate a violation of A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to take appropriate corrective action. Although Respondent timely attempted corrective action by proceeding to remove the saddle seam as required by the Directive, the corrective action itself of installing a new hallway carpet that did not match or installing it in a manner causing it to appear not to match was not performed in a professional and workmanlike manner.
9. Therefore, Complainant has established that Respondent’s license should be disciplined for a violation of § A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).
10. Despite the finding of the foregoing violations, the Tribunal believes Respondent has made a good faith effort to perform corrective action. The Directive required the removal of the saddle seal which Respondent timely accomplished. Unfortunately, Respondent’s corrective action created a new deficiency. As Respondent has not had the opportunity to correct this new deficiency and as Respondent indicated it has sufficient carpeting from the same dye lot to once again re-carpet the hallway, the Tribunal is inclined to permit Respondent another opportunity to perform corrective work before imposing disciplinary action.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that 10 days from the effective date of this Order, Floors Unlimited, Inc.’s, License Number CR-8.086526-D shall be suspended for two days unless the Registrar receives and accepts written verification that Floors Unlimited, Inc., has corrected the corrective work it performed in response to the item listed in the Registrar’s Directive, dated October 23, 2017.
It is further recommended that if and when the Registrar receives and accepts Respondent’s evidence that it has corrected the remaining items, the Registrar may close the Complaint in Case No. 2017A-4891-CHC-ROC.
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 five days from the date of the certification.
Done this day, March 14, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors