ALJDEC

97F-1992-ROC · Registrar of Contractors · 1997-11-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 6, 1997

APPEARANCES: Gerald Cook: on his own behalf. Respondent: Margaret Z. Khalil, Esq.

ADMINISTRATIVE LAW JUDGE: Casey J. Newcomb _____________________________________________________________________

The hearing in this matter was held for the purpose of determining whether the Respondent was in violation of statute as alleged by the Complainant and as Cited by the Registrar of Contractors (hereinafter “the ROC”). Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. George (or Jure) Silovic (the “Respondent”) is the qualifying partner of Hardwood Floors by George Silovic.

2. On January 6, 1997, Gerald Cook (the “Complainant”) and the Respondent entered into a contract to repair and refinish existing hardwood floors and to install a new floor in the family room at 8542 W. Via Montoya Dr., Peoria, Arizona (the “Home”). 3. The terms of the January 6, 1997 contract included a material and labor price of $6453.58 to be paid as follows: (1) a deposit of $3226.79 due at the beginning of the job; (2) a payment of $1613.39 due upon installation of the new floor; and (3) a final payment of $1613.40 due upon completion of the project.

4. On January 16, 1997, the Complainant and the Respondent entered into a second contract for the installation of baseboards, shoe molding, and the staining & finishing of a banister rail on stairs in the family room.

5. The terms of the second contract included the payment in full of $2000.00 upon completion of the job.

6. The Complainant has not paid the final installment in the amount of $1613.40 on the first contract. All other amounts owing on the two contracts have been paid in full.

7. On or about January 25, 1997, the project was substantially completed.

8. On January 28, 1997, in response to a complaint by the Complainant, the Respondent inspected the Home and proposed that part of the project be redone concerning the sanding, staining and finishing of the floor. The Respondent promised to personally handle the corrections. The corrections were completed on or about February 7, 1997.

9. On February 11, the Complainant filed a complaint with the Registrar of Contractors alleging the following concerns: 1) waves or ripples in the floor, 2) gaps in the floor and baseboards, and 3) peeling or missing finish in certain areas of the floor.

10. After a site inspection on March 18, 1997, Mark Schweiger, an inspector for the ROC, issued a Corrective Work Order requiring that the Respondent correct the following: 1) shrinkage gaps in the flooring, 2) excessive gaps between the flooring and the base shoes, and 3) the lack of uniformity in applying the finish to certain floor areas in the Home. The Inspector did find that the rippling and waves in the floor were within the minimum industry standards.

11. On or about April 10, 1997, the Respondent or his associate “Frank” made the corrections. The Respondent subsequently sent a compliance letter to the ROC.

12. On April 15, 1997, the Complainant sent a letter to Inspector Mark Schweiger (hereinafter “the Inspector”) expressing his dissatisfaction with the Respondent’s corrective work in refinishing the floors. However, the gaps in the floor and baseboards were sufficiently corrected.

13. On April 17, 1997, the Inspector inspected the Home again. The Respondent’s associate “Frank” was also present. Frank was still making corrections to the Home.

14. The Inspector testified that there is “no specific test” for testing finish. However, this Inspector generally utilizes a “tape test” in which he applies tape to the finished floor, pulls up the tape, and then he examines the quantity and quality of the finish (if any) that peeled off with the tape. On April 17, 1997, the Inspector applied the tape test using three different types of tape (i.e. scotch, masking and “a brightly colored tape dot”).

15. After examining the removed tape, the Inspector concluded that there was a “problem with the final finish portion of the process which is referred to as finishing.” The Inspector testified that there appeared to be no defect with the type of finish used. Rather, the Inspector testified that there appeared to be an “adhesion problem” between the stained floor and the finish. The Inspector agreed that the finished floor was “not up to industry standards or State standards.”

16. Marianne Silovac, Respondent’s wife, testified that the “tape test” utilized by the Inspector is not generally used throughout the industry because tape will always cause some damage to the finish. On cross-examination, the Inspector stated that he had “no independent knowledge” that this test was used throughout the industry .

17. In a letter dated May 27, 1997, the Respondent offered to refinish the floors again or in the alternative, the Complainant could hire another contractor and keep the balance owing on the aforementioned contracts.

18. On June 18, 1997, the Complainant sent a letter to the Respondent rejecting the Respondent’s May 27, 1997 proposals. Virginia Cook, wife of the Complainant, testified that she had “lost confidence” in the Respondent’s ability to get the job done after two failed attempts to correct the problem. Furthermore, if the Complainant hired another contractor to refinish the floor, then the Complainant would incur expenses far exceeding the amount still owing on the January contracts.

19. Prior to receiving the Complainant’s June 18, 1997 letter, the Respondent sent another letter dated June 19, 1997, to the Complainant offering to refinish the floor and to accept the responsibility for moving furniture and “plasticing off the areas to be worked on. . .”

20. On August 19, 1997, after a failure to mediate and settle this matter, the ROC issued a Citation (with the Complainant’s complaint) to the Respondent alleging violations of A.R.S. 32-1154(A)(3)(7) & (23) and R4-9- 108.

21. The Respondent acquired a mechanic’s lien on the home in the amount of $3613.40. The Respondent agreed to partially release the lien upon receipt of $2000.00 from the Complainant. However, the Respondent’s wife, Marianne Silovic, testified that the Office of the Maricopa County Recorder would not allow a partial release. Mrs. Silovic testified that the entire lien would be released if the Complainant would sign a personal guarantee for the balance due.

22. On November 5, 1997, the parties, counsel and Inspector Mark Schweiger were all present at a pre-hearing site inspection at the Home. The Inspector performed the tape test at four different areas in the Home. He also performed a fingernail test on at least one spot on the floor. Per the fingernail test, the Inspector “ran his thumbnail” across the finished floor and the finish “popped off.” The Inspector testified that the overall appearance of the floor was good. However, the Inspector also testified that the finished floor was “not serving its intended purpose” and that the finish was “not going to last.” The Inspector concluded that the final finish process was not up to ROC standards for workmanship.

23. The Respondent testified that he is willing and able to refinish the floor at any time convenient to the Complainant. He only wants to make the Complainant happy. The Respondent’s wife, Marianne Silovic, further testified that the Respondent would assume the reasonable costs of hiring an independent contractor to refinish the job and to pay for the “plasticing” and moving of furniture (including a baby grand piano). This proposal for correcting the problem with an independent licensed contractor appears under the circumstances to be appropriate and reasonable.

CONCLUSIONS OF LAW

1. A.R.S. 32-1154(A)(3) prohibits the Respondent from violating any rule adopted by the Registrar. The rule at issue in this case is R4-9-108 which requires that “all work shall be done in a workmanlike manner.” The floors at issue were not properly or timely finished. According to the testimony of the Inspector, there was a “problem” with the final portion of the finish process. Furthermore, the Inspector testified that the floor scratched easier than most floors and was “not up to industry standards or State standards.”

2. In order to violate A.R.S. 32-1154(A)(7), the Respondent must do a wrongful or fraudulent act resulting in another person being substantially injured. The undersigned Administrative Law Judge finds no fraud in this case. However, the Respondent wrongfully performed the finishing portion of the project and wrongfully failed to timely correct this problem. This is a wrongful act that caused substantial injury to the Complainant.

It should be noted that Items 4 & 5 of the Corrective Work Order pertain to “areas of the kitchen closet and center of the den where the finish does not appear to be within industry standards for uniform coverage.” As a mitigating factor, the Respondent technically has provided uniform coverage of the floors by applying finish to the aforementioned problem areas. However, the Inspector testified that this is an “adhesion problem” (i.e. the finish is not satisfactorily adhering to the floor) which is why the finish scratches, peels and pops off so easily. Consequently, the undersigned Administrative Law Judge concludes that due to this “adhesion problem”, the lack of uniform coverage is an ongoing problem and therefore, Items 4 & 5 of the Corrective Work Order have not been satisfactorily corrected.

3. In order to violate A.R.S. 32-1154(A)(23), the Respondent must fail to take the appropriate corrective action to comply with the ROC’s written directive. Furthermore, the corrective action must occur within a reasonable time. The Respondent has not adequately or timely corrected Items 4 & 5 of the ROC’s Corrective Work Order. As a mitigating factor, Items 2 & 3 were satisfactorily corrected and Item 1 required no corrective work. Furthermore, the Respondent is still willing and able to finish the floor. RECOMMENDED ORDER

Based upon the foregoing, the undersigned Administrative Law Judge recommends that commencing on the effective date of this Order (thirty-five [35] days after the date of mailing by the Registrar) that the Respondent’s Class C-30 license be suspended until the Registrar receives proof that the Respondent has performed the following corrective work:

The Respondent shall pay for an independent licensed contractor to refinish the floors at the Home. The independent licensed contractor must be approved by the Complainant. However, the Complainant’s approval of the independent contractor must be reasonable. The Respondent shall pay or be responsible for moving furniture (including the moving and tuning of the baby grand piano). Respondent shall be responsible for covering or “plasticing” the walls. Respondent shall be responsible for cleaning the walls near the work areas. Respondent shall not be responsible for painting the walls absent some unforeseen accident. Respondent shall not be responsible for meal or hotel expenses.

It is further recommended that if the Respondent accomplishes or causes the accomplishment of the aforesaid corrective action in a proper, workmanlike manner on or before this Order’s effective date, or if the Respondent is unable to comply with the corrective action because of the Complainant’s unwillingness to grant Respondent’s representatives reasonable and timely access to the Home, then no license suspension shall be imposed and the entire Citation and Complaint in Case Number 97F-1992- ROC shall be closed.

Done this day, November 18, 1997.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1997, to:

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

ATTN: Jennifer Varela

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

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