ALJDEC

99F-1233-ROC · Registrar of Contractors · 1999-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 29, 1999, and September 24, 1999. Record closed on October 18, 1999. APPEARANCES: William Smyth on his own behalf; Roger Decker, Esq. on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT On December 2 , 1997, William Smyth (“Complainant”) entered into a contract with Grand Canyon Floors, Inc. doing business as Grand Canyon Carpet One (“Respondent”) for the removal of flooring at Complainant’s Home (“Home”) and for the installation of Mannington prefinished hardwood flooring (“floor”) for approximately 1500 square feet of Complainant’s residence. The reason Complainant was purchasing a prefinished floor was because of his concern about the use of chemicals in the Home because his wife has asthma. This information was disclosed to Respondent prior to the execution of the above-mentioned contract. Complainant had previously hired Respondent to install a prefinished hardwood floor in another residence without incident and had been pleased with Respondent’s work.

After Respondent installed the Mannington floor at the Home, Respondent’s employee used mineral spirits over the floor to remove excessive glue. Complainant contends that the extensive use of mineral spirits on the floor caused damage to the Mannington factory finish and caused certain areas of the floor to become dull. As addressed below, that contention is not supported by the weight of credible evidence. Tom Anderson (“Mr. Anderson”), National representative of Bona Kemi, a wood finish manufacturer, Tom Ryan, sales manager/inspector with Longust Distributing, an Arizona supplier of Mannington floors, and Leonard Blier (“Mr. Blier”), the head craftsman of Respondent, testified that the use of mineral spirits or paint thinner to remove glue is common in the wood flooring industry and does not damage or affect the finish of wood floors. The evidence of record establishes that after the installation of the Mannington floor, Respondent applied a topcoat of Mannington Ultrafinish after cleaning the floor. Although Complainant contends that the topcoat applied affected the finish of the floor, the weight of credible evidence supports a finding contrary to that contention. As a result of Complainant’s dissatisfaction with the finish of the floor, Donna Randall, Respondent’s president, sent Mr. Blier to the Home to address Complainant’s concerns. In January 1998, Mr. Blier visited the Home and inspected the floor. At that time, Mr. Blier did not notice any dull areas of the floor in the living room but noticed some dull areas in the kitchen that appeared to be surface residue. Additionally, Mr. Blier observed swirl marks on the floor and opined that they were the result of improper homeowner maintenance of the floor. After the initial installation of the floor and cleaning of the glue areas, Complainant continued to complain to Respondent about dull areas and dirt embedded in the finish. Mr. Blier performed a screen and recoat of the finish consisting of one screening, the application of the Bona Kemi Mega, then another screening and a second application of Bona Kemi Mega. After that process, Complainant still complained of dirt embedded in the finish of the floor, of swirl marks, and dull areas. Mr. Blier inspected the floor and did not observe any dull areas or swirl marks but, on close examination, observed dirt embedded in the finish. Although Complainant contending that Mannington UltraClean and not Bona Kemi Mega should have been applied to the floor, the evidence of record establishes that Complainant approved Respondent’s use of Bona Kemi Mega. Further , it was established during the hearing, that Bona Kemi is the manufacturer of Mannington UltraClean and it is similar to Bona Kemi Mega. An examination of the dirt particles embedded in the finish by Mr. Anderson and Mr. Blier revealed that a portion of the dirt particles is not encased in the finish. This shows that after application of the finish, the dirt particles fell into the finish in the center of the living room, the subject area of the complaint. No footprints were observed in the finish in that area. That situation provides a reasonable basis to infer that the dirt particles entered the area as a result of either a window or door being opened. The expert testimony at the hearing supports that inference. Messrs. Blier, Anderson, and Ryan testified that the installation of the flooring was structurally and aesthetically satisfactory. They also testified that the product Bona Kemi Mega, that Respondent applied at the Home, is the best finish on the market with the lowest volatile organic compound(“VOC”) count , indicating that it has the least amount of odor of any finish in the marketplace. Messrs. Blier Anderson, and Ryan testified that the application of Bona Kemi Mega would not detrimentally affect the Mannington factory prefinish on the floor. They testified that the dull areas on the floor was surface residue not attributable to Respondent and that application of the Bona Kemi Mega would correct that situation. With respect to the swirl marks on the floor, despite Complainant’s contention that they are the result of Respondent’s use of an abrading pad, the weight of the evidence establishes that those marks are indicative of improper homeowner maintenance and cleaning procedures and not attributable to Respondent. Joe Mazzarese, Wood Product Manager for Mannington Wood Floors, represented in a letter to Longust Distributing (Exhibit 4) that Mannington would continue to warranty the floor regarding structure, moisture, and finish. Mr. Blier testified that before he applied the Bona Kemi Mega, he and a fellow worker, cleaned the floor, then screened the floor so that the finish would adhere to the floor. Prior to such cleaning, Mr. Blier turned off the heating system and made sure all the windows and doors of the Home were closed and locked. When he returned the next morning, Complainant was inside the Home and the heating system was on. Mr. Blier then informed Complainant of the need to have the heating system turned off and of having the windows and doors closed so as to maintain a clean environment. Mr. Blier turned off the heating system and proceed to clean and rescreen the floor. Subsequently, Mr. Blier applied the Bona Kemi Mega and left the Home with all of the doors and windows closed and locked. Upon his return to the Home the following morning, he observed Complainant in the Home with the heating system on. At that time, Mr. Blier observed some dirt embedded in the finish that could not be seen from a standing position but noticeable if one bends down to view that area of the floor. Mr. Blier testified that there was no dirt in the finish solution he applied to the floor and that the area in question meets industry standards. Complainant contends that a “blister” area in the kitchen is due to the improper application of finish to the floor. However, the weight of the credible evidence establishes that there is moisture in the floor around that area that is significantly greater than other floor areas in the Home. Further, the evidence establishes that the “blister” is close in proximity to the kitchen sink and dishwasher. Mr. Blier’s reading of a Wagoner moisture meter, an instrument that measures moisture content in wood, showed that the likely source of the moisture was around the pipes underneath the kitchen sink, although the exact source of the moisture was not ascertained. Expert testimony establishes that it is not unusual for a wood floor to have a recoat after six months to one year because of normal wear of the finish. The evidence also establishes that it is not unusual to have a wood floor cleaned by mineral spirits and apply a top coat after an initial installation of a wood floor. While Complainant contends that the above-mentioned areas of the floor are deficient and fail to meet industry standards, the weight of the credible evidence establishes that the claimed deficiencies are homeowner maintenance items, are due to normal wear, and are not attributable to Respondent’s work. Further, the evidence of record establishes that the dull areas, excluding those by the baseboards, are in high traffic areas that, over time, causes the floor finish to become dull. On October 17, 1998, after Complainant’s filing of a complaint with the Registrar of Contractors against Respondent, a jobsite inspection was performed by an inspector with the Registrar of Contractors. As a result of the inspection, a Corrective Work Order was issued on October 17, 1998, requiring Respondent to determine the cause and correct areas of dullness and areas where dirt particles were embedded in the floor. Respondent was to perform such work within fifteen calendar days of issuance of the Corrective Work Order. Respondent did not believe that the determination of the inspector in the above-mentioned Corrective Work Order to be correct. However, as a matter of public relations, Respondent attempted to comply with the Order but was denied access to the Home by Complainant. The evidence of record reveals that Respondent acted appropriately in cleaning the floor after the installation and applying a top coat, that Respondent acted reasonably in accommodating Complainant by recoating the floor, and that Respondent acted reasonably in attempting to comply with the Corrective Work Order. In denying access, Complainant represented that Respondent has already attempted repairs and Complainant is convinced that Respondent’s intended method of repair will not work. Complainant is also concerned about exposing his wife to chemicals. During the hearing, Complainant represented that he would not allow Respondent into the Home to correct the alleged deficiencies unless he is reassured that Respondent would not use any chemicals in effecting repairs. Although the initial contract between the parties calls for Mannington prefinished floors, there is no provision restricting the manner in which Respondent is to correct deficiencies. While it is understandable that Complainant is concerned for his wife’s’ health and application of chemicals to the floor, the record does not contain any legal restriction upon Respondent as to the manner and method of repairs or in addressing the alleged deficiencies. The record of evidence establishes that the manner in which Respondent proposed to proceed to rectify the claimed deficiencies is appropriate and in accordance with industry standards. Notwithstanding Registrar of Contractors Inspector Robert Dragoon’s testimony concerning Respondent’s responsibility for the alleged deficiencies, Inspector Dragoon admitted during the hearing that he was not a hardwood floor specialist and, accordingly, the testimony of experts in the hardwood floor industry, as set forth above, is afforded greater weight. The weight of the credible evidence establishes that Respondent’s work in the original installation of the floor and recoating the floor are in accordance with industry standards and meets minimum workmanship standards. Further, Respondent’s intended remedial action was shown to be in conformance with acceptable industry standards. During the hearing, Complainant represented that he would not allow Respondent into the Home to correct the alleged deficiencies unless he is reassured that Respondent would not use any chemicals in effecting repairs. CONCLUSIONS OF LAW 1. Under the facts and circumstances of this matter, it is determined that Respondent acted reasonably in attempting to comply with the Corrective Work Order even though it is determined that Respondent’s work met minimum workmanship standards. While Complaint has cause to be concerned as to the application of chemicals in the Home, there was no legal justification for denying Respondent access to the Home or for Complainant’s failure to make appropriate accommodations to allow Respondent to perform remedial work. The evidence of record does not establish by a preponderance of the evidence that Respondent has violated any of the provisions of A.R.S. §32- 1154 (A)(7),(23) or (3), namely, A.A.C. R4-9-108. . RECOMMENDED ORDER Based on the above, it is recommended that the Citation and Complaint in Case Number 99-1233 be dismissed. Done this day, October 19, 1999

______________________________________ Lewis D. Kowal Administrative Law Judge

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

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

ATTN: Joyce Armijo

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826