ALJDEC

99F-M1445-ROC · Registrar of Contractors · 1999-12-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 22, 1999 APPEARANCES: Complainant Herbert Babitzke appeared on his own behalf. Michael Flynn appeared on behalf of Respondent Flynn’s Floor Covering, Inc. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________ The issue presented by this matter is whether Respondent Flynn’s Floor Covering, Inc. (“Flynn’s”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Flynn’s Floor Covering, Inc. is the holder of a Class C-08R license (No. 065121) issued by the Registrar of Contractors (“ROC”). Michael Flynn is Flynn’s qualifying party. On October 20, 1998, Complainant Herbert Babitzke and his wife, Esther, purchased four Graber vertical blinds from Flynn’s. Flynn’s installed the blinds at the Babitzkes’ residence on November 11, 1998.

On June 2, 1999, Mr. Babitzke filed a complaint against Flynn’s with the ROC. The gravamen of Mr. Babitzke’s complaint was that the blinds which he purchased did not have sufficient overlap, and that as a result light would shine through between the vanes. Mr. Babitzke particularly alleged that when the blinds were closed at night, light from oncoming vehicles would shine through the blinds. ROC Inspector James Walsh investigated Mr. Babitzke’s complaint. Inspector Walsh could not view the installation of the blinds, or the blinds themselves, because by the time Mr. Babitzke had filed his complaint with the ROC, the Babitzkes had already replaced the blinds with those of another manufacturer and had thrown the Flynn’s blinds out. By letter dated June 9, 1999, the ROC, through Inspector Walsh, notified Flynn’s “it is the opinion of this office from the facts now before us that unless the matter is resolved within ten (10) days after receipt of this letter, we may request that a citation be issued against your license so that this matter may be resolved by administrative hearing.” By letter dated June 17, 1999, Mr. Babitzke informed the ROC that the matter had not been resolved and requested a hearing. On September 10, 1999, the ROC issued a Citation and Complaint against Flynn’s, charging Flynn’s with a violation of A.R.S. § 32- 1154(A)(7) (wrongful act resulting in substantial injury). By letter dated September 16, 1999, Flynn’s filed an answer to the Citation and Complaint. The evidence presented at the hearing established that the Graber blinds purchased by the Babitzkes were manufactured to order. Barbara Ewing, a manufacturer’s representative, went to the Babitzkes’ home at Flynn’s request and viewed the blinds. Ms. Ewing reported “The blinds were measured and installed properly. The customer was complaining about the spacing of the vanes, but they were spaced per manufacturing specifications.” Sandy LeSueur, a sales representative for Cascade Blinds (the company from which the Babitzkes purchased their replacement blinds), observed that the overlap of the Graber vanes was within industry standards. The Babitzkes do not dispute the foregoing. The Babitzkes’ complaint is that the Graber blinds which they received are defective because even when constructed and installed to specification, they still allow for light seepage. The Babitzkes presented evidence that Cascade Blinds was able to add additional vanes to their replacement blinds which eliminated the light seepage problem. Thus, they reason, because Cascade could do it, so also Flynn’s could have done it. Flynn’s presented evidence that the number of vanes on the Graber blinds installed at the Babitzkes’ residence could not be altered. CONCLUSIONS OF LAW In this proceeding, Mr. Babitzke bears the burden to prove, by a preponderance of the evidence, that Flynn’s is subject to discipline for a violation of A.R.S. § 32-1154(A)(7) as charged by the ROC in its September 10, 1999 Citation and Complaint. 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). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, on the facts presented, that Mr. Babitzke failed to sustain his burden to prove that Flynn’s violated A.R.S. § 32-1154(A)(7). The evidence was that the Graber blinds which the Babitzkes purchased were manufactured and installed to specifications. Thus, Flynn’s fulfilled its obligation to the Babitzkes. The Babitzkes were unhappy with the product, but this fact does not make Flynn’s sale and installation of the blinds a wrongful act for which Flynn’s is subject to discipline.

RECOMMENDED ORDER In view of the foregoing, it is recommended that no discipline be imposed against Flynn’s license and that the entire Citation and Complaint issued in this matter be dismissed.

Done this day, January 10, 2000.

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

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

By ___________________________

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