ALJDEC

97F-1992-ROC-COM · Registrar of Contractors · 1998-06-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On June 9, 1998, a hearing was held to determine whether the Respondent substantially complied with the terms and conditions of the previously entered Order of the Registrar of Contractors in this matter. The Complainant appeared on his own behalf. Attorney Margaret Z. Khalil represented the Respondent. Evidence and testimony were presented. Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made. FINDINGS OF FACT

1. The scope of this hearing is to determine whether the Respondent substantially complied with the terms and conditions set forth in the prior Order entered by the Registrar of Contractors on December 2, 1997 (the "Order"). This Order clearly requires that the Respondent file with the Registrar of Contractors “written confirmation that the corrective work has been accomplished in a proper workmanlike manner.”

2. Pursuant to this Order, the Respondent was required to (1) hire a properly licensed contractor to refinish the Complainant's floors; (2) move the Complainant's furniture; (3) tune the baby grand piano; (4) cover or plastic the walls; and (5) clean the walls.

3. After hearing testimony from the parties and witnesses, the undersigned Administrative Law Judge finds that the Respondent substantially complied with moving

the furniture, tuning the baby grand piano, covering the walls and cleaning the walls. There were some delays in completing these tasks. However, the undersigned Administrative Law Judge finds that the delays were reasonable due to the holiday season and postponements by the Complainant.

4. The primary issue before this tribunal is whether the Respondent substantially complied in refinishing the Complainant's floors in a proper workmanlike manner. The Respondent hired Midwest Hardware Floors to refinish the floors. Lawrence Ponomar is the owner and qualifying party of Midwest Hardware Floors. Mr. Ponomar has finished floors since 1989. Mr. Ponomar testified that he applied a different type of finish (than what the Respondent used) on the Complainant's floors.

5. Mr. Ponomar testified that he refinished the Complainant's floors three times. Mr. Ponomar testified that the floors improved each time. Mr. Ponomar testified that he has never had such a difficult time refinishing a floor. Mr. Ponomar testified that perhaps there is a ventilation problem with the Complainant's home because dust and other foreign debris “kept getting into the finish.”

6. Mr. Ponomar testified that the Complainant was not happy with the finishing job so he (or the Respondent) contacted the distributor of the finish for direction and advice. Mr. Ponomar testified that Bob Benbow of the Virginia Hardware Company, the distributor of the finish, inspected the Complainant's floors twice. After the second inspection, Mr. Benbow wrote that "the finish was acceptable by industry standards." See Respondent's Exhibit A.

7. Mr. Ponomar testified that he (or the Respondent) also contacted Tom Anderson of BonaKemi, the manufacturer of the finish. Mr. Ponomar testified that Mr. Anderson visited the Complainant's Home on June 8, 1998. Mr. Ponomar testified that Mr. Anderson stated that the finish was "beautiful" and "above industry standards." The Complainant was present when Mr. Anderson visited his home. The Complainant confirmed (but disagreed with) Mr. Anderson's statements.

8. Mr. Ponomar testified that he also visited the Complainant's home on June 8, 1998 for a prehearing inspection. Mr. Ponomar testified that the floors were within industry standards and "looked close to perfect." However, Mr. Ponomar testified that the floors did not meet his high personal standards. Mr. Ponomar testified that he is willing to refinish the floors again.

9. Mr. Ponomar testified that he asked the Complainant if he could refinish the floors (for a fourth time) "to make them perfect." Mr. Ponomar testified that the Complainant declined his offer. Mr. Ponomar testified that the Complainant told him that he would never approve of the floors even if Mr. Ponomar refinished the floors perfectly.

10. Mr. Lewis King, an inspector for the Registrar of Contractors (the "ROC"), inspected the Complainant's home on March 3, 1998. Inspector King found the following: A. Foreign debris in the finish. B. Gaps between shoe molding and oak flooring. C. Ridges in flooring at fireplace hearth from sanding. D. High spots or areas at each end of oak edging between living room, dining room from sanding. E. Holes in the flooring at east side of Island cabinet. F. Dark area in floor at bottom edge of kitchen pantry door jam, (latch side). G. Stain on the north wall.

11. Mr. Ponomar testified that he was willing to correct all of the items in ROC Inspector King's list. However, Mr. Ponomar testified that he was not sure if it was possible to correct the ridges in the flooring at the fireplace hearth. Mr. Ponomar testified that it would not take more than a day to correct these items.

12. Mr. Cook testified that he did notice an improvement in the finished floors after Mr. Ponomar's third attempt. However, Mr. Cook testified that he and his family simply cannot endure the inconvenience of refinishing the floor for the eighth time (including the Respondent's prior corrective work). Mr. Cook testified that he would allow Mr. Ponomar to correct the remaining items in Inspector King's list. However, Mr. Cook testified that he will wait “a few years down the road” to refinish the floors again and that his family will “live with it the way it is for now.”

13. The undersigned Administrative Law Judge finds that the Respondent and Midwest Hardware Floors have not satisfactorily corrected the finish problem at the Complainant's Home. However, the undersigned Administrative Law Judge finds that the revocation or suspension of the Respondent's license would be inappropriate for the following reasons:

A. The Respondent did hire a properly licensed contractor to refinish the Complainant's Home. B. The floors in the Complainant's home appear to be unusually difficult to finish. C. The properly licensed contractor also had great difficulty in refinishing the Complainant's floors. D. The properly licensed contractor is still willing to make the Complainant's floors look perfect. E. The Respondent has denied access to the properly licensed contractor to refinish the floors. F. The Complainant's floors are greatly improved albeit not perfect. G. The Respondent did comply with the remaining items in the Registrar’s Order as set forth in Findings of Fact #2 & 3.

CONCLUSIONS OF LAW

1. The Respondent has not substantially complied with the Registrar’s Order dated December 2, 1997. The Respondent cannot provide “written confirmation that the corrective work has been accomplished in a proper workmanlike manner.” In fact, several items listed in Inspector King’s report still have not been corrected.

2. The undersigned Administrative Law Judge’s Recommended Decision, dated November 18, 1997 (adopted by the Registrar), requires that the Respondent’s Class C-30 license be suspended until the Registrar receives proof that the Respondent has performed the required corrective work. However, the undersigned Administrative Law Judge finds that under the circumstances of this case, the Respondent’s Class C-30 license should only be placed under disciplinary probation for the reasons set forth in Findings of Fact #13.

RECOMMENDED ORDER

Based upon the foregoing, the undersigned Administrative Law Judge finds that the Respondent’s Class C-30 license shall be placed on disciplinary probation for a period of sixty (60) days commencing on the effective date of this Order (thirty-five days after the date of mailing by the Registrar).

Done this day, June 18, 1998.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of June, 1998, to:

Michael P. Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo

By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826