ALJDEC

98F-3196-ROC · Registrar of Contractors · 1998-12-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On December 7, 1998, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Thyra Gadek appeared on her own behalf. Donald Geise appeared on his own behalf. Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. Custom Floor Coverings is in the business of installing tile, carpet and wood floors. Don Geise (the “Respondent”) is the owner and qualifying party of Custom Floor Coverings. Thyra Gadek (the “Complainant”) is the owner of a new condominium (the "Home") located at 1747 E. Northern Ave., Phoenix, Arizona.

2. In April of 1998, the Complainant and the Respondent entered into a verbal contract to (1) tile the Home's laundry room and (2) to install a wood floor in the Home's kitchen, dining room, family room and the hallway. The Complainant and the Respondent agreed that all appliances would be removed from the Home at the time of the installation of the wood and tile floors.

3. Miramar built the Home in early 1998. Doug Schroeder is Miramar's superintendent. Mr. Schroeder testified that a company named Arizona Wholesaler supplied and hooked up the washer and dryer in the Home's laundry room on or about April 17, 1998. Mr. Schroeder testified that Arizona Wholesaler installed all of the washers and dryers in the

homes constructed by Miramar in this complex. Mr. Schroeder testified that Arizona Wholesaler will test a washing machine's hook up by pulling on the drainage hose. Mr. Schroeder testified that Arizona Wholesaler will never actually turn on the washing machine to test it. Mr. Schroeder testified that the Arizona Wholesaler installer told him that the washer and dryer were hooked up at the Home. However, Mr. Schroeder conceded that he did not personally witness the installation or hook up of the washer and dryer at the Home.

4. On or about April 17, 1998, the Respondent began the installation of the tile at the Home. The Respondent subcontracted the tiling work out to a company named SAS Tile. Mr. Antonio Szywala is employed by SAS Tile. Mr. Szywala did the tile installation at the Home's laundry room. Mr. Szywala testified that a washer and dryer were in the Home's laundry room when he arrived at the Home. Mr. Szywala testified that the washer and dryer were not hooked up to the wall when he arrived at the Home. Mr. Szywala testified that he moved the washer and dryer to the garage.

5. Mr. Szywala testified that he returned the washer and dryer to the laundry room when he completed the tiling job on the following day. Mr. Szywala testified that he does know how to hook up a washer and dryer. However, Mr. Szywala testified that he did not hook up the Home’s washer and dryer because he could not tell the difference between the hot and cold connectors in the wall.

6. The Respondent’s floor installer began the installation of the Home's wood floors after the tile floor was completed in the laundry room. On or about April 22, the wood floor installer completed the installation of the Home's wood floors.

7. Mr. Schroeder testified that several people had access to the Home after the Respondent had completed the installation of the tile and wood floors. Mr. Schroeder testified that painters did a "touch up" job and the cleaners did a “final cleaning” after the Respondent had completed the floors. Mr. Schroeder testified that other subcontractors also had unsupervised access to the Home after the floors were completed. Mr. Schroeder further testified that his assistant, Dan Yirku, also had access to the Home. When asked if the washing machine was ever moved after the Respondent had completed the tile and wood floors, Mr. Schroeder testified that:

Several times it came to my attention that the washer was out [of the laundry room]. I can’t for the life of me figure out why the machine came out.

8. On or about May 7, 1998, the Complainant and Mr. Yirku did a final inspection or "walk through" of the Home. The Complainant testified that a painter was still painting during this final inspection. The Complainant testified that Mr. Yirku only turned on the dish washer during this inspection. The Complainant testified that they did not turn on the washing machine. The Complainant testified that Mr. Yirku assured her that the other appliances (including the washing machine) in the Home were previously tested. The Complainant testified that Mr. Yirku told her that he tested the other appliances prior to the installation of the floors. The Complainant testified that she signed a document that stated that Miramar had tested all of the appliances. Unfortunately, Mr. Yirku was not present at this hearing to testify as to how he tested the washing machine. The Complainant moved into the Home shortly after the final walk through inspection.

9. On or about May 8, 1998, the Complainant used the washer and dryer for the first time. The Complainant loaded the washing machine and turned it on. The Complainant testified that she then went into her bedroom to fill up her water bed. The Complainant testified that she left her bedroom shortly thereafter and found that the laundry room, kitchen, dining room and half of the living room were flooded. The Complainant testified that the water came from the washing machine.

10. Mr. Schroeder testified that there is a drainage hose that is clamped to the washing machine at the bottom of the machine. Mr. Schroeder testified that the hose is extended and connected to a drain in the wall. Mr. Schroeder testified that the hose on the Home's washing machine came off the bottom of the machine where it was clamped to the machine. Apparently, only Mr. Schroeder saw the dislodged hose. The Respondent did not have the opportunity to view the dislodged hose.

11. On or about May 10, 1998, there was an informal meeting at the Home concerning the flood. Dan Yirku, Doug Schroeder, the Respondent, and Jim Tengue (Miramar's Vice President of Construction) were present at this hearing. The Respondent testified that Dan Yirku told everyone at the meeting that he saw the washing machine on the wooden kitchen floor prior to the flood. The Respondent argued that if the washing machine was on the wooden kitchen floor, then the washing machine must have been moved after the Respondent had already completed the installation of the wood and tile floors. Mr. Schroeder testified that Dan Yirku did say that he "thought” the washing machine was on the wood floor.

12. On or about June 7, 1998, the Complainant filed a Complaint with the Registrar of Contractors ("ROC"). On or about June 16, 1998, ROC Inspector Phil Coscia scheduled a jobsite inspection at the Home. On June 16, 1998, Inspector Coscia met with the Complainant, the Respondent, Dan Yirku, Doug Schroeder and Jim Tengue. Inspector Coscia testified that Dan Yirku stated that he saw “the washing machine on wood.” However, Inspector Coscia could not determine when Mr. Yirku saw the “washing machine on wood.” On or about July 29, 1998, Inspector Coscia issued a Corrective Work Order ("CWO") to the Respondent requiring that the water damage at the Complainant's Home be corrected.

13. Inspector Phil Coscia testified that he issued the CWO to the Respondent because he felt that the Respondent's subcontractor was the last person to touch the drainage hose on the washing machine. Inspector Coscia testified that he concluded that the Respondent should be held responsible. Inspector Coscia testified that he had no real evidence showing that somebody else was responsible for the water damage. Inspector Coscia further testified that the drainage hose was disconnected from the back of the washing machine as opposed to being disconnected from the drain in the wall. Inspector Coscia testified that there “was no telling how that happened.”

14. In reviewing Inspector Coscia's case notes, it should be noted that Inspector Coscia wrote the following:

H/O [Homeowner] even added that she saw the appliances sitting on kitchen floor but she does not know who moved them there.

See Case Notes, page 2. Inspector Coscia testified that he never actually saw the washing machine’s detached drainage hose because it had already been reattached to the washing machine before he arrived for the inspection.

15. On or about September 2, 1998, the ROC issued a Citation and Complaint against the Respondent alleging violations of A.R.S. §32-1154(A).

16. The undersigned Administrative Law Judge finds that the Home’s flood could have been caused by one or more of the following scenarios: A. The drainage hose or clamp was defective. Accordingly, it could have detached even if the washing machine was never moved; B. The drainage hose was improperly clamped to the bottom of the washing machine by the Arizona Wholesaler installer. Accordingly, it could have detached even if the washing machine was never moved; C. The washing machine may have been moved to the kitchen after the Respondent had completed the tile and wood floors. Accordingly, the person who returned the washing machine to the laundry room may have improperly hooked up the washing machine; D. The painters, the cleaners or another subcontractor could have dislodged the drainage hose when they did the final painting and cleaning. E. Contrary to his testimony, Mr. Szywala may have improperly hooked up the washing machine when he returned it to the Home’s laundry room.

17. Even if it is assumed that Mr. Szywala improperly hooked up the washing machine, the undersigned Administrative Law Judge finds that a proper inspection of the Home’s appliances by Miramar and the Complainant should have detected this improper hook up. Furthermore, the undersigned Administrative Law Judge finds that it was unreasonable for Dan Yirku to test the washing machine prior to the installation of the tile floor when he knew that the washing machine would have to be removed for the Respondent to tile the laundry room floor. Mr. Yirku should have tested the washing machine after the floor was tiled.

18. The undersigned Administrative Law Judge finds that there is insufficient evidence to show that the Respondent is the sole responsible party for the water damage to the Home. However, the undersigned Administrative Law Judge is not finding that the Respondent is blameless. Rather, the undersigned Administrative Law Judge is finding that there are other equally plausible reasons or intervening causes for the water damage at the Home.

19. The undersigned Administrative Law Judge finds that there is no evidence showing that the Respondent failed to perform the actual installation of the tile and wood floors in a professional and workmanlike manner.

20. The undersigned Administrative Law Judge further finds that the Respondent had a valid justification for not performing the required corrective work in the CWO. The undersigned Administrative Law Judge finds that there is insufficient evidence showing that the Respondent is the sole responsible party for the water damage.

CONCLUSIONS OF LAW

1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). 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 (6th ed. 1990).

2. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(3) and R4-9-108 as set forth in Findings of Fact #18 & 19.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(7) as set forth in Findings of Fact #18 & 19.

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(23) as set forth in Findings of Fact #20.

5. The Complainant has failed to show by a preponderance of the evidence that the Respondent is the sole responsible party for the water damage caused by the washing machine’s detached drainage hose. The Respondent has successfully shown that Miramar or Arizona Wholesaler or the painters and cleaners could have been responsible for the dislodged drainage hose and the subsequent water damage at the Home. Furthermore, the Respondent has successfully shown that Miramar and the Complainant could have avoided the water damage by properly inspecting the appliances at the Home. Accordingly, the undersigned Administrative Law Judge concludes that grounds do not exist to discipline the Respondent’s Class C-08 license pursuant to A.R.S. §32-1154. RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge finds that the entire Citation and Complaint in Case Number 98-3196 should be dismissed.

Done this day, December 18, 1998.

_________________________________ Casey J. Newcomb Administrative Law Judge

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

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

ATTN: Joyce Armijo

By _______________________________

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