ALJDEC

98F-M0208-ROC · Registrar of Contractors · 1998-03-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 17, 1998 APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its president, T. Bradley Millner. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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. Pursuant to contract, Respondent was retained by Complainant for the purpose of replacing the existing carpet in his home with new carpeting. Complainant alleges certain deficiencies in the work performed and materials provided by Respondent and same are discussed in the findings below. 2. It was undisputed that the applicable contract required installation of a new carpet pad that was to be 3/8 inches thick and of a seven pound density or weight. Although there was no dispute that the pad installed was 3/8 inches thick, Complainant contends that the pad installed was not of a seven pound density. Respondent’s position was that he ordered and supplied a pad that was, in fact, labeled by the pad manufacturer as a seven pound pad. 3. Complainant retained the services of a company known as Compliance and Recovery Consultants (hereinafter referred to as “C.R.C.”) to assist in the investigation of his complaint. Although the purported “expert” from C.R.C. was shown to have an extensive background in selling and installing carpet related materials, evidence of record was inadequate to demonstrate that this individual’s background and training supplied any special expertise in the area of testing carpet related materials. Moreover, the individual claiming “expert” status was unable to demonstrate any formal educational training in the area of testing carpet related materials and/or any certification in said area. 4. It is important to note that the individual from C.R.C. testified that his inspection services were “free” to consumers. When asked how he earned a living if his services were “free,” he indicated that he was to receive something in the nature of a contingency fee of 25% of the original carpet purchase price if, and only, he was successful in aiding a homeowner in having the contractor replace the carpet or carpet pad. This Tribunal affirmatively finds that such a contingency fee arrangement may have a tendency to create a very negative affect on the objectivity and required lack of bias of any claimed independent “expert,” thereby having a deleterious affect on the weight of credibility to be assigned to any findings claimed by such an individual. 5. Evidence of record was insufficient and non-persuasive to support any finding that the techniques, procedures, and materials utilized by C.R.C. to test the carpet pad density were accepted and approved as adequate and proper by the carpet pad industry or any approved testing and measuring agencies. Thus, notwithstanding Complainant’s claim that tests were performed on the carpet pad installed by Respondent, by the above- described individual from C.R.C., indicating that he received a carpet pad that was merely six pounds in density (as opposed to the contract required seven pound density), the evidence presented at the instant hearing was inadequate to support any finding that the carpet pad installed was not in compliance with the applicable contract specification or that same varied in any significant and material degree from the contract specification. Complainant failed to sustain the requisite burden of proof on this issue. 6. Despite the above stated finding regarding the weight of the carpet pad installed in Complainant’s home, evidence of record was sufficient to support a finding that Respondent failed to replace the previously installed carpet pad in a specified closet. Respondent’s failure to replace the total carpet pad in the home constitutes a violation of the applicable charged sections of the State’s contracting laws.

7. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held. Due to a change in the address of Respondent’s place of business, he did not receive any notice of the jobsite inspection and thus, failed to appear for same. 8. Complainant appeared for the scheduled jobsite inspection and also had an individual from C.R.C. present to assist in said inspection. The Registrar’s inspector examined four specified areas of claimed deficient workmanship or materials as same were enumerated in the filed complaint with the Registrar of Contractors. It is important to note that the inspector for the Registrar appeared at the hearing and presented testimony regarding his inspection and his findings. 9. Subsequent to completing the jobsite inspection, the Registrar’s inspector issued a document entitled “Corrective Work Order.” Notwithstanding the title of said document, the Registrar’s inspector issued the following findings in said document: a. Regarding the claim of loose carpet, the inspector determined that the carpet installation was adequate and proper. b. Regarding a claim that a specified carpet seam was visible and in an improper location, the inspector determined that the seam was acceptable. c. Regarding a claim that the carpet was showing premature crushing, the inspector found the condition of the carpet to be acceptable. d. Regarding the carpet pad, the inspector, hearing only one side “of the story” from C.R.C., ordered Respondent to “check the pad to be certain that it was of the specified weight and, if not, to properly install the correct pad.” 10. The inspector for the Registrar was shown to be an unbiased inspector having considerable years of experience inspecting carpet complaints for the Registrar of Contractors. 11. Complainant objects to a specified seam in the carpet between the living room and the family room. Evidence of record demonstrated that the seam in question was created by Respondent after the carpet was originally installed. Apparently there was a crown in the concrete slab under the carpet, due to the fact that the home had been remodeled prior to installation of the carpet and there had previously been a wall in said area. The concrete in said area was higher than the adjacent areas of the concrete, thereby creating an uneven concrete slab and said unevenness of the concrete was “telegraphing” through the carpet, creating an aesethically unacceptable result. 12. In order to expose the concrete to allow for a grinding of said concrete, Complainant requested that Respondent return to his home and pull back the carpet. Respondent cut the carpet in the area in question and removed the carpet from the area wherein the remedial work was to be performed on the concrete. Subsequent to completion of the concrete grinding, the carpet was re-installed and the seam was closed-up by Respondent. Although the seam is slightly visible, evidence of record demonstrated that the industry does not require that carpet seams be invisible. Moreover, evidence of record was inadequate to support any finding that the seam was not adequately installed or improper in regard to any applicable and acceptable minimum industry standard for carpet seams. Thus, Complainant failed to sustain the requisite burden of proof on this issue. 13. Although Complainant contends that his new carpet is showing premature and unacceptable wear in the high traffic areas and thus a defect in the carpet, evidence of record supports a finding that the areas in question are not indicative of defective carpet material, but merely a normal and expected wear condition for this type of carpet, from use in such high traffic areas. Thus, Complainant failed to sustain the requisite burden of proof on this issue. 14. The instant record failed to support any finding that the carpet was installed loose without any adequate power stretching procedures. Complainant failed to sustain the requisite burden of proof on this issue also. 15. In an effort to comply with the aforementioned Agency directive to examine the pad to determine if it was of the required weight, Respondent contacted Complainant and requested access to remove samples of the pad to be tested by the supplier of the carpet pad. Complainant consulted with C.R.C. and was advised not to allow such a testing procedure. Therefore, based on the advice from C.R.C. Respondent was denied any access to perform his own tests on the carpet pad. 16. This Tribunal can find no condition in the Registrar of Contractor’s Corrective Work Order stating that Complainant has the right to decide who Respondent shall utilize to check the weight of the pad. Complainant’s refusal to allow Respondent to test the pad is found to be an improper denial of access to not only comply with the terms and conditions of the Corrective Work Order but also an improper denial of Respondent’s right to discovery for the claims set forth in the filed complaint. Upon being denied the right to inspect and test the pad, Respondent made a formal written request to the Registrar that this matter be set for a formal administrative hearing. Based on these facts, there is no finding that Respondent failed to comply with the terms and conditions of the Corrective Work Order.

CONCLUSIONS OF LAW

1. Respondent’s failure to replace the carpet pad in a specified closet supports a very limited finding that Respondent violated A.R.S. 32- 1154A (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-08 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has properly replaced the carpet pad in the closet wherein the original carpet pad currently remains. It is further recommended that if Respondent accomplishes the above- described corrective work on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and this Citation, together with the Complaint upon which it is based, shall be closed.

Done this day, March 19, 1998.

_______________________________ MARK A. SILVER Administrative Law Judge

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

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

By _______________________________

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