ALJDEC

98F-0198-ROC · Registrar of Contractors · 1998-10-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

The above-entitled matters came on for a consolidated hearing on October 6, 1998. The Complainant appeared in her own behalf, and the Respondent appeared through its authorized employee, Deborah Bohnsack as well as through its qualifying party and corporate President, Rod Hutchings. Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. Although Complainant’s two separately filed complaints related to different aspects of the kitchen hardwood floor installation, the cases were consolidated for the purposes of hearing since the same parties and the same premises were involved, and the respective claims and defenses would entail the use of the same witness and much of the same documentary evidence.

2. Pursuant to a written proposal and contract in April, 1997, Respondent agreed to and did perform work on Complainant’s existing residence consisting of hardwood and tile flooring installations, completing the contemplated work in June, 1997. The sole subject of the instant complaints related to the hardwood floor installed in the kitchen area.

3. The first complaint was filed in late July, 1997 and identified numerous aspects of the kitchen installation that were allegedly substandard. These complaints encompassed the spacing between the wood members, a degree of lifting of boards in some areas and irregularities in the appearance of the surface finish. Despite Complainant’s expressed satisfaction with Respondent’s prior installation of the same hardwood flooring in the hallway and entry by a certain identified workman and her specific request that the same individual perform the kitchen installation, Respondent elected to send a different workman to complete the project. The above-described flooring problems were evident only in the work performed by the second workman who did promptly return to correct the lifting or loosening problem by injecting more glue under the affected boards.

4. The testimony indicated that more gaps did exist between many of the individual planks of wood placed in the kitchen than elsewhere in the home and that a significant amount of filling with putty materials was necessary. However, some extent of gaps in the spacing was shown to be normal and expected. While recognizing that there will be some aesthetic limitation as to acceptability in situations where wood flooring at different portions of the same dwelling or structure reveals greatly disproportionate spacing placements, similar to utilizing different dye lots for color matching, the evidence presented at the hearing did not sufficiently establish that either the extent of spacing in the kitchen or the differences in spacing at other household locations were excessive or otherwise beyond acceptable industry tolerances.

5. It was ultimately agreed, after an inspection by the product’s manufacturer, that the finish was defective and that further remedial work was necessary. The manufacturer authorized a process involving the abrading, or removing only a small portion of the finish at the surface, and then re-coating the surface with a single coat of finishing materials. Corrective work was performed by Respondent substantially in the manner authorized by the manufacturer.

6. It is found and determined, based upon the weight of credible evidence presented, that the resulting appearance of the floor surface after Respondent’s

corrective efforts is deficient and unacceptable, traceable either to the improper performance of the manufacturer-authorized abrading and re-coating work or to the election not to undertake a complete stripping, sanding and refinishing of the wood flooring.

7. While the choice of remedial methods is customarily left to the licensed specialty contractor, if a less expensive of less extensive treatment is selected, such contractor remains at his peril to achieve results that are acceptable according to prevailing industry standards. Additionally, the fact that a licensed contractor’s supplier or product manufacturer does nothing or authorizes only a minimal or less extensive repair allowance does not relieve such contractor of its contractual obligations to achieve appropriate results on its own.

8. The deficiencies in the finish demonstrated by credible testimony tended to show that the insufficient removal of the previously applied finish was the primary factor leading to the substandard resulting appearance of the finished hardwood floor surface. Respondent’s stated position that any failure of the finish was attributable to Complainant’s lack of proper maintenance was based purely on conjecture and not borne out by the evidence presented, especially in light of the fact that no employee of Respondent has personally viewed the results of the re-coating attempt.

9. Complainant credibly testified that for a much prolonged time period, numerous efforts to contact Respondent and to report her dissatisfaction with the re-coating work failed to produce any return calls or other responses.

10. It was shown that no written directive on first filed complaint relating to the finish and the gaps was issued by the Registrar’s assigned Inspector.

11. Complainant filed her second complaint in April, 1998 relating to a loosening or release of glue affecting an entire defined area of the kitchen floor in front of the computer room. A different assigned Inspector made a jobsite visit, not attended by Respondent, after which a written directive was issued requiring appropriate corrective

action to secure the loose hardwood boards. This Inspector had also verbally informed Respondent that the surface finish on the floor was deficient and needed additional remedial work.

12. Respondent communicated its stated intention not to perform any repair work that was not set forth in a written directive issued by the Inspector, despite having been informed of such Inspector’s conclusions as to the non-acceptability of the re-coating work. A single workman was subsequently sent to the jobsite by Respondent on one occasion in July, 1998 without adequately informing Complainant of limited purpose of visit, which was not to address the refinishing but only to correct the reported loosening condition. Although Complainant, still unaware of the limited purpose of the workman’s visit until the instant hearing, did not permit performance of any repairs, it is found that there was no waiver of entitlement to corrective action. Understandably, piecemeal repairs are not to be encouraged, and Complainants actions in rejecting a somewhat inadequately described tender of work was not unreasonable under all the circumstances. However, although Respondent never clarified its tender of limited work which was the subject matter of the second complaint and the written directive, it must be held that no finding of non-compliance by Respondent with the terms of the issued written directive is supportable.

13. The inadequate correction of the deficient finish applied to the wood flooring and the loosening of an area of the installation are found to reflect adversely upon Respondent’s workmanship. Moreover, the failure or refusal of Respondent to correct the kitchen flooring finish for a long time duration, thereby effectively depriving Complainant of the full aesthetic use and enjoyment of her residence, is further found to constitute of wrongful act to the injury of the homeowner within the meaning and intent of another charged violation hereunder.

14. It is found that, after the completion of appropriate repairs to secure all loose boards, a reasonable further condition as part of any Order issued by the Registrar in this case should consist of the Respondent’s complete stripping and sanding of the kitchen flooring, and also the application of at least two coats of refinishing materials.

Reasonable care should be taken by Respondent to substantially match the overall appearance of the existing finished flooring in the entry and hallway.

CONCLUSIONS OF LAW

1. The evidence of record sufficiently established that Respondent has violated the provisions of A.R.S. §32-1154A (7) and (3); namely, Rule R4-9-108. However, no violations by Respondent of A.R.S. §32-1154A (23) were adequately proven.

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order (thirty-five {35} days after the date of mailing by the Registrar) that Respondent’s Class C-08 license be actively and temporarily suspended until the Registrar receives proof that Respondent has properly repaired all loose kitchen flooring where glue has released and has appropriately stripped, sanded and refinished the entire kitchen floor, as set forth in Finding of Fact No. 14.

It is further recommended that if Respondent accomplishes the above- described corrective work in a proper, workmanlike manner on or before this Order’s effective date, then no active license suspension shall be imposed.

It is further recommended, in addition to the above-provided provisional license suspension, if any, that the Class C-08 license of Respondent be placed on disciplinary probation for a period of 60 days, such additional penalty to commence on the effective date of the Registrar’s Order or the date on which written notice of Respondent’s compliance with the corrective work conditions is filed with the Registrar, whichever is later.

It is further recommended, in addition to the above penalties, that any restoration of Respondent’s rights to resume contracting, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit

or alternative deposit for a period of 24 months, including future renewal periods, in the amount of $1,500.00, such bond or deposit to be in addition to the required surety bond, cash deposit or alternative deposit otherwise required for Respondent’s anticipated annual volume of business. Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above- provided 24 month period and only if no claims are then pending.

Dated: October 14, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

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

ATTN: Joyce Armijo -----------------------

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