ALJDEC

98F-0198-ROC-rhg · Registrar of Contractors · 1999-03-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

REHEARING: March 23, 1999.

APPEARANCES: Complainant, Vicki Bergstrom, appeared in her own behalf.

Respondent, Paradise Floor Coverings, Inc. was represented by its attorney, John F. O’Connor, Esq.

ADMINISTRATIVE LAW JUDGE: Robert. I. Worth _____________________________________________________________________

Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order on Rehearing are made.

FINDINGS OF FACT

1. By Order of the Registrar, these consolidated matters were scheduled for a rehearing so as to enable the presentation of evidence and testimony in support of or in opposition to (a) the prior findings of violations by Respondent of the State’s contracting laws, (b) the impact, if any, of a specified manner of performing corrective work upon any applicable warranties given by the product manufacturer and (c) the reconsideration of the imposition of additional disciplinary penalties, if and as may be appropriate.

2. It was not effectively disputed that, following the original installation by Respondent of wood flooring in Complainant’s residence in accordance with the parties’ contract and after a subsequent inspection by an employee of the distributor on behalf of the product’s manufacturer, it was confirmed that materials with a defective factory finish had been utilized on the kitchen/dining area portion of the installation. A previously installed portion of the same flooring material in the hallway had been accomplished without problems.

3. Although the inspecting distributor, as the manufacturer’s representative, had apparently authorized a replacement of a relatively small area of deficiently finished materials in conjunction with other refinishing work, Respondent sought and obtained authorization and compensation from the manufacturer to perform a “screening” of the entire kitchen flooring which consisted of a light abrading of the surface followed by the application of a single coat of finish materials. No partial replacement work was undertaken.

4. Complainant’s dissatisfaction with the resulting appearance of the surface of the re-screened area of the floor was shown by credible testimony to have been the subject of several telephonic attempts by Complainant to contact Respondent’s offices without receiving any response. No written report of any unsatisfactory result was made until many months thereafter.

5. The abrading effort by Respondent was credibly shown to have been inconsistent and deficient, with the original finish being removed to varying depths at scattered locations extending from the top of the finishing coat materials to the top of the underlying wood material, incomplete debris removal from the original surface and the outline of a footprint remaining visible and severely detracting from the aesthetic overall appearance of the wood flooring surface. It appeared that Respondent did not

and has not examined the condition of the re-finished floor covering installation after the re-screening attempt.

6. It is found and determined, based upon the evidentiary presentations at the rehearing, that the present condition of the floor finish in the kitchen and dining areas remains substandard and aesthetically unacceptable, reflecting unfavorably upon Respondent’s workmanship and necessitating further appropriate and effective remedial action by Respondent. However, with respect to a demonstrated difference in spacing or gapping between the individual wood members in such location, especially as compared with a lesser extent of gapping in the hallway area, no valid reason is perceived to alter the findings made at the original hearing; namely, that the degree of gapping was not sufficiently shown to exceed prevailing allowable tolerances. (See Finding of Fact Number 4 in the previously entered Order in this matter).

7. No improper use or abuse of the flooring by Complainant or other household occupants was demonstrated. On the contrary, only the type of cleaning materials recommended by Respondent were indicated to have been utilized and applied by Complainant on both the kitchen and the hallway flooring, thereby giving the identical care and treatment to the surfaces in both locations.

8. The evidence at the rehearing did not sufficiently indicate that Complainant’s wood floor in the kitchen/dining area is presently incapable of being adequately corrected by means short of a complete removal and replacement of all materials. It must once again be noted, as stated in the prior findings after the initial hearing of this matter, that although a licensed contractor is normally free to select the type of remedial action, such contractor remains at its peril to achieve results that are acceptable according to industry standards if a less expensive method or a less extensive

treatment of the problem is selected. (See Finding of Fact Number 7 in the previously entered Order).

9. Although somewhat inconclusive, it did not appear that either the previously performed re-screening action or another such future effort by or on behalf of Respondent had voided or would void the balance of the warranty made available from the manufacturer. It was never definitively established that such warranty would be voided even by a more elaborate and complete stripping, sanding and refinishing of a portion of the floor surface. If a replacement of a small or perhaps sizable portion of the flooring is undertaken, the original warranty would, of course, be inapplicable, but another new warranty would be in effect relating to the replaced areas.

10. It is further found that, at the very minimum, Respondent is required to undertake and accomplish corrective measures on the wood flooring which encompass a re-screening and a two-coat application of finishing materials for the “entire” installation, including the hallway area, to achieve a more uniform resulting overall appearance of the finished flooring. Additionally, a justification, although not a necessity, for the partial replacement of materials in one relatively small surface area in a kitchen location was indicated under all the evidence.

11. No written directive from a previously assigned Inspector had been issued to Respondent on the first filed complaint relating to the gaps or spacing between the floor boards as well as to the original finish. Such complaint had not been confirmed but instead had been administratively closed before any jobsite inspection based upon assurances that the repairs already in progress would be properly and effectively completed. That complaint was reopened and formed a part of the consolidated hearing.

12. Following the filing of the second complaint, the only item specifically addressed in that complaint and in the written directive issued to Respondent by another Inspector related to the glue release or lifting problem with some of the flooring in the kitchen area. The successor Inspector had also informed Respondent verbally that the surface finish on the kitchen/dining area flooring was deficient and in need of additional corrective work. Such verbal communication may not be equated with the issuance of a written directive as required by statute so as to support a violation of the charged subsection relating to non-compliance with written agency directives. However, Respondent is not relieved of its underlying duty to accomplish appropriate remedial work merely because such work was never encompassed within a written corrective work order. The evidence of record tended to indicate that Respondent’s expressed position was to decline to undertake and complete any work on the surface finish unless and until the Registrar’s Inspector issued a further written directive as to such item.

13. The necessity for Respondent to rectify the acknowledged lifting problem with respect to some of the loose boards in the kitchen/dining area was not the main focus of the instant rehearing. The prior rejection by Complainant of a somewhat vague tender of such work by or on behalf of Respondent is again found to have operated as a defense to one of the charged violations hereunder relating to non-compliance with the Inspector’s written directive requiring remedial work. However, Respondent’s underlying obligation to correct this workmanship problem remains, and its failure to rectify such problem is found violative of two other charged subsections of the State’s contracting laws. The prior findings as to the absence of any waiver by Complainant to receive such work are re-affirmed. (See Finding of Fact Number 12 in the previously entered Order).

14. It is determined that Respondent has failed for more than a reasonable time period to undertake and to properly correct the demonstrated workmanship deficiencies in the floor’s finish and in the lifting problem in the kitchen/dining area. Additionally, such failure to accomplish necessary corrective measures has deprived Complainant of the full aesthetic use and enjoyment of her home and is further found to be in breach of Respondent’s contractual implied warranty of fitness for intended aesthetic purposes, thereby constituting a wrongful act to the detriment of the Complainant/Homeowner.

15. Consideration must be and is given to Respondent’s above-average prior record as a licensed contractor in this State. Consequently, upon reconsideration of the terms of the previously entered Order, it is found and recommended that no additional or lingering penalties, apart from a provisional suspension conditioned upon the timely and proper accomplishment of necessary corrective work, should be imposed against Respondent’s license. However, nothing in this decision is intended to condone the overall course of conduct on the part of Respondent’s principals in not returning to the jobsite in order to personally view the floor’s condition or appearance and in its prolonged period of inaction. It tended to appear that rather than to have devoted some of its energies to the initiating and concluding of arrangements to rectify reported and confirmed problems, Respondent was seemingly concentrating more on developing excuses not to complete necessary remedial work, such as asserting improper homeowner maintenance on an unseen floor or insisting that the successor Inspector’s verbally communicated opinion be confirmed in a written directive as a condition for performing repairs to the finish applied after the screening effort.

CONCLUSIONS OF LAW

1. The evidence of record at the rehearing adequately established that Respondent has violated the provisions of A.R.S. §32-1154A (7) and (3); namely, Rule

R4-9-108. However, no violation by Respondent of A.R.S. §32-1154A (23) was sufficiently proven.

RECOMMENDED ORDER ON REHEARING

In view of the foregoing, it is recommended on rehearing that, commencing on the effective date of the Registrar’s Order on Rehearing, Respondent’s Class C-08 license shall be suspended until the Registrar receives proof that Respondent has properly accomplished the repair of all loose kitchen flooring and has appropriately corrected the finished appearance of the entire installed floor surfaces.

It is further recommended that if Respondent accomplishes the above- described corrective work in a proper, workmanlike manner on or before the effective date of this Order on Rehearing, then no active license suspension shall be imposed, and the entire Citations and Complaints in Cases Numbered 98-0198 and 98-2499 shall be closed.

The Registrar’s Order on rehearing, when entered herein, shall be a final administrative decision, reviewable pursuant to A.R.S. §12-901.

Dated: March 23, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

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

ATTN: Joyce Armijo