ALJDEC

99F-F0191-ROC · Registrar of Contractors · 1999-07-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

|NEAL KLEIN CONSTRUCTION CO., |(|Case No.: F99-0191 | | |(| | |Complainant, |(|Docket No.: 99F-F0191-ROC | | |(| | |vs. |(| | | |(| | |License No. 105206, Class C-08 of|(|Recommended | |Steven Terry Hardy, d.b.a. |(|Decision and Order | |STEVE HARDY (INDIV), |(| | | |(| | |Respondent. |(| | | |(| |

HEARING: Thursday, July 15th, 1999; 8:30 a.m. Appearances: The Complainant was represented by its Area Manager, Mr. Donald W. Reinhold. The Respondent, Mr. Steven Hardy, represented himself. Administrative Law Judge: Grant Winston

This matter was brought on for administrative hearing on July 15th, 1999. Testimony was heard and other evidence admitted to record, and, based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. The Complainant herein is a builder of residences doing business in the State of Arizona. Respondent herein is, and during all times relative hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class C-08 License Number 105206.

2. Complainant constructed a residence for a Mr. Don San Filippo in Flagstaff, Arizona.

3. Respondent installed the vinyl flooring in the kitchen and bathroom of the San Filippo residence in July of 1997.

4. Before installing the vinyl Respondent detected some abnormalities in the sub-surface over which he was to install the tile. He considered these abnormalities as defects which would prevent the workmanship and quality of the vinyl in the home, and he brought these conditions to the notice of the Complainant in order that they could be rectified before he applied the vinyl.

5. Complainant performed some corrective work to the floors, and Respondent applied the vinyl.

6. After the vinyl had been applied the resident noticed some visible creases in the floor. He contacted the Complainant to correct. The Complainant contacted the supplier of the vinyl. It appears that the vinyl was good vinyl. Both parties felt that correction of the vinyl was not fairly its responsibility, and declined to make the needed corrections.

7. The Complainant, in an effort to have this matter resolved appropriately, filed the instant complaint with the Registrar, alleging that the vinyl flooring installed by the Respondent is showing creases as a result of improper installation. Complainant noted Respondent’s refusal to make corrections.

8. Respondent filed his written response to the complaint. Respondent defended on the grounds that the sub-floor was improperly installed, and subsequently shored up, by the Complainant, and the sub-floor was the cause of the problem of the vinyl showing ridges. Respondent stated in his written answer to the Citation and Complaint that the original substrate Complainant had installed was rain-damaged, and new substrate had been installed directly over the original OSB. Respondent testified he alerted the Complainant to this problem. Respondent sanded and skim coated the floor before applying the vinyl.

9. After the complaint was filed Registrar of Contractor’s Inspector Mr. Mark Schweiger conducted an inspection of the work site. Based on his visual inspection and knowledge gained from those present at the inspection, he ascertained that the creases or ridges did exist, and appeared to run along lines corresponding to the sub-floor material (plywood) lines. He noted the problem was consistent with sub-floor deficiencies. He also noted that no sub-floor corrective work was ordered in the bathroom.

10. Mr. Schweiger issued a Corrective Work Order to the Respondent dated February 12th, 1999, ordering the Respondent as follows: “The vinyl flooring installed in the Kitchen, and bath room have visible creases, or subfloor lines contrary to Industry Standards. Correct by appropriate means.” Respondent, continuing to maintain that the problem did not result as a fault of his, refused to make corrections. This hearing ensued.

11. Both parties stated their positions at the hearing in accordance with the papers they had already filed, positions already noted in these findings. Respondent did not deny that he had gone ahead and applied the vinyl over the sub-floors.

12. Mr. Schweiger testified at the hearing that within the Registrar of Contractors there is the agency position that the contractor who applies the vinyl or other flooring surface over the sub-floor does, in effect, accept the underlying surface as suitable and fit. If the contractor installing the floor feels that the surface is not suitable, it is his responsibility to object and refuse to accept the sub-floor. If the person responsible for the sub-floor (the general contractor in this case) then refuses to make any corrections and continues to direct the flooring contractor to proceed, according to Mr. Schweiger’s testimony of the agency policy, the flooring contractor should protect himself from a potential future claim by obtaining something in writing to the effect that he has not accepted the sub-surface, and is installing the flooring over his protest. Such does appear to be the agency policy, and Respondent produced no evidence contradicting the fact that he had indeed accepted the surface for application of his vinyl.

13. Respondent applied the vinyl to a sub-surface of inferior quality. In so doing, he accepted the surface, and is responsible for making appropriate corrections as ordered by the Inspector.

14. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors.

Conclusions of Law

1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092.

2. The Respondent herein is charged in the Citation and Complaint with possible violations of A.R.S. §32-1154.A.7., 23., and 3., namely A.A.C. R4-9-108 (Poor Workmanship).

3. The preponderance of evidence supports the conclusion, here reached, that the Respondent violated A.R.S. §32-1154.A.23., and 3., namely Rule 4-9-108, as set forth in the Citation and Complaint. . . . . . . . . .

Recommended Order

Wherefore, it is hereby recommended that the Respondent’s Class C-08 License Number 105206 be suspended until such time as he has complied with the Corrective Work Order issued by the Registrar of Contractors, the substance of which is recited herein at Finding of Fact #10, to the satisfaction of the agency. It is further ordered that if, on or before the effective date of this Order, the Respondent has completed the corrective measures referenced above, that no suspension take place, and Citation and Complaint F99-0191, together with the Complaint on which it is based, be closed.

Dated this 29th day of July, 1999.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Grant Winston Administrative Law Judge

Original mailed this day of July, 1999, to:

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

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