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Office of Administrative Hearings1400 West Washington, Suite 101

Phoenix, Arizona 85007(602) 542-9826

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lew Cook

COMPLAINANT(S)

-v-

License No. K-8.162303-D ofBaker Brothers Floorcovering Inc dba:Baker Bros Area Rugs and Flooring

RESPONDENT

No. 2012A-2313-ROC

ADMINISTRATIVELAW JUDGE DECISION

HEARING DATES: March 5, 2013, at 1:00 p.m.; April 19, 2013, at 1:00 p.m.;

and April 22, 2013, at 1:00 p.m.

APPEARANCES: Complainant Lew Cook was represented by Matthew J.

Pierce, Esq., Warner Angle Hallam Jackson & Formanek, P.L.C.; Respondent Baker

Brothers Floorcovering Inc. dba Baker Bros. Area Rugs and Flooring was represented

by Chase E. Halsey, Esq., Cheifetz Iannitelli Marcolini, P.C.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky_____________________________________________________________________

FINDINGS OF FACT

BACKGROUND AND PROCEDURE

1. The Arizona Registrar of Contractors (“the Registrar”) issued License No. K-

8.162303-D for dual floor covering to Baker Brothers Floorcovering Inc. dba: Baker

Bros. Area Rugs and Flooring (“Respondent”).

2. On or about May 3, 2012, Lew Cook (“Complainant”) filed a Complaint with

the Registrar regarding Respondent’s installation of vinyl plank flooring at

Complainant’s residence at 15002 N. Sixth Circle, Phoenix, Arizona. According to the

Complaint, Respondent completed installation of the floor on August 26, 2011, and

Complainant paid Respondent the full $8,441.87 contract amount. Complainant

requested that the Registrar require Respondent to “[i]nstall vinyl wood plank flooring

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that conforms to the sample provided” to resolve his Complaint. Complainant stated as

follows:

[Respondent’s] sales representative showed Complainant asample of Adura AW521 Georgian Spalted Maple (Natural)that had no dark markings on it. [Respondent’s] salesrepresentative also suggested Complainant look at theMannington (manufacturer) website, where Complainantsaw a picture of the AW521 with no dark markings.Complainant ordered the AW521 with no dark markings.Complainant ordered the AW521 based upon the sampleprovided. [Respondent] had a subcontractor install theAW521 at Complainant’s home. During the five days thatthe flooring was being installed, [Respondent] did not have arepresentative on site at any time during the installation.The flooring installed has a very different pattern than thesample shown to Complainant, or the picture from theMannington website. Complainant is an eighty year-old manconfined to a wheelchair due to having had Polio as a youth.Since the time that [Respondent’s] sales representativeconfirmed that the flooring did not conform to the sample,the sample has [disappeared] and [Respondent] has failedto produce it despite formal discovery attempts.1

3. The Registrar assigned the Complaint to its inspector, Jim Dimond, for

investigation. Inspector Dimond performed a jobsite inspection and on May 29, 2012,

issued a Corrective Work Order (“CWO”) that required Respondent to perform certain

corrective action to resolve Complainant’s Complaint within fifteen calendar days, in

relevant part as follows:

Item- (condensed) Complainant contends that product#AW521 was ordered but AW522 was installed.

After inspection and investigation, it is theInspector’s opinion that the manufacturer placedproduct in boxes marked AW521 that are actuallyproduct AW522. It is incumbent upon a contractor toensure that the product being installed is in fact theproduct that was ordered. Contractor is to correctthe condition in an appropriate manner.

1 Before Complainant’s attorney filed the Complaint with the Registrar, he filed a civil lawsuit againstRespondent in Moon Valley Justice Court Precinct of Maricopa County, State of Arizona, Case No.CC2011-238374 (footnote added).

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4. After Respondent failed to resolve Complainant’s Complaint to his

satisfaction, the Registrar issued a Citation and Complaint against Respondent,

charging possible violations of A.R.S. § 32-1154(A)(2) and A.R.S. § 32-1154(A)(23).

5. Respondent filed a timely written answer to the Citation and Complaint,

denying any statutory violations. The Registrar referred the matter to the Office of

Administrative Hearings, an independent state agency, for an evidentiary hearing.

6. A hearing was held on March 5, 2013, April 19, 2013, and April 22, 2013.

Inspector Dimond testified. Complainant submitted thirteen exhibits and presented the

testimony of three witnesses: (1) Complainant; (2) Elena D. Ervin, Complainant’s

caretaker; and (3) Mary Kathleen (“Katie”) Kauffman, Complainant’s daughter, who

cared for Complainant and acted as his “girl Friday” on Ms. Ervin’s days off.

Respondent submitted fourteen exhibits and presented the testimony of four witnesses:

(1) Robert Bauerle, Respondent’s Design Consultant, who sold the flooring to

Complainant; (2) Ron Payton, an account representative for Longust Distributing, which

distributed the flooring to Respondent; (3) Megan Harris, a regional manager for

Mannington Mills, which manufactured the floor; and (4) Phil Koufidakis, Respondent’s

president.

HEARING EVIDENCE

The Contract

7. Complainant is 85 years old. He retired after practicing law in Arizona for 50

years. As noted in the Complaint, Complainant is confined to a wheelchair. Since

Complainant’s wife passed away, he has relied upon Ms. Ervin and Mrs. Kauffman to

help him with many of his day-to-day activities. During the relevant time period, Ms.

Ervin helped Complainant on Mondays, Wednesdays, and Fridays and Mrs. Kauffman

helped Complainant on other days.

8. During the summer of 2011, Complainant was considering replacing the

carpet that his deceased wife had chosen for their home with a Stainmaster carpet

because its lower pile would offer less resistance to his wheelchair and he has a little

dog. Complainant saw Respondent’s advertisement in the newspaper that stated that

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Respondent’s business was started in1946, when its founders got out of the navy.

Because Complainant also got of the navy in 1946, he decided to call Respondent.

9. Because Complainant is disabled, Mr. Bauerle took Stainmaster carpet

samples to Complainant’s home. When Complainant explained his reasons for

replacing the carpet, Mr. Bauerle suggested vinyl tile flooring and suggested that

Complainant go to Mannington’s website to look at available products.

10. Mr. Bauerle testified that Complainant later called him because he was

interested in Mannington’s vinyl plank flooring.

11. Vinyl plank flooring is a product that is manufactured to approximate the

appearance of wood flooring with photographs of various species of wood printed on

the vinyl planks. The planks are installed either by gluing them down on the concrete

subfloor or snapping the planks together to form a floating floor.

12. Mr. Bauerle testified that he took four samples of Mannington Adura vinyl

plank flooring to Complainant’s residence and at Complainant’s request, left the

samples so that Complainant could show them to his daughter. Mr. Bauerle testified

that all the samples were 16” x 16”.

13. Complainant testified that he has Copenhagen furniture and that he wanted

a floor that would go with the furniture.

14. Complainant submitted a printout from Mannington’s website that showed a

small photograph of the sample for Adura vinyl plank flooring in the pattern Spalted

Georgian Maple and the color Natural (AW521), which showed a relatively clear grain

with only a few dark lines on it.2 Complainant testified that he selected the Mannington

Adura vinyl plank flooring in Spalted Georgian Maple in the color Natural (AW521)

based on the sample that Mr. Bauerle showed him and the photograph on

Mannington’s website. Complainant testified that he liked the Mannington Adura vinyl

plank flooring in Spalted Georgian Maple in the color Natural (AW521) because it was

95% clear and did not have a lot of dark lines or swirls on it.

2 See Complainant’s Exhibit 3.

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15. Complainant acknowledged that he would not have made a choice based

solely on the website and that the sample would be a better representation of the

flooring.

16. Mrs. Kauffman testified that she consulted with her father when he chose

the flooring and that they both liked the sample for the Mannington Adura vinyl plank

flooring in the pattern Spalted Georgian Maple and the color Natural (AW521) because

it had a relatively clear grain.

17. Ms. Ervin testified that she was present when Mr. Bauerle showed

Complainant the Mannington Adura vinyl plank flooring samples. Ms. Ervin testified

that Complainant told Mr. Bauerle that some of the samples were “too busy” and that

Mr. Bauerle responded that he had another version in a lighter color.

18. Mr. Bauerle testified that a day or so after he left the samples, he called

Complainant to follow up and Complainant stated that he had selected a sample of the

vinyl plank flooring that he wanted Respondent to install. Mr. Bauerle testified that he

went out to Complainant’s residence to prepare and to have Complainant sign the

contract.

19. Mr. Bauerle testified that when he prepared the contract, he went over the

pattern and color that Complainant had selected, had Complainant verify the selection,

and discussed the cost and installation process with Complainant.

20. On or about August 2, 2011, Complainant signed a contract for Respondent

to install Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple

and color Natural (AW521) in the living room, family room, master bedroom, den, and

hallway at his residence, for a total price of $8,441.87.

21. Above the signature line on the contract the following notation appeared:

“[T]he undersigned, intending to be legally bound, have signed their name on the date

indicated above. Subject to terms and conditions on the reverse of this page.”3

22. Term No. 7 on the reverse side of the contract that Complainant signed

provided as follows:

3 Respondent’s Exhibit 1 at 1.

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Products selected from the samples may vary from actualmaterials delivered due to dye lot, shade or color variation.Samples are approximate representation. It is the Buyer[’]sresponsibility to inspect materials at the job site beforeinstallation. No adjustments or cancellations will be allowedon installed materials.4

23. Complainant testified that he did not read the reverse side of the contract.

Complainant testified that in his 50 years of practicing law, he had prepared thousands

of contracts and that he always required signatories to initial or countersign fine print

that set forth additional terms and conditions.

24. Complainant acknowledged that he was on notice of the need to inspect the

floor prior to installation.

25. Mr. Bauerle testified that Respondent’s policy is not to leave samples with

customers after the customer signs the contract because there is no longer any reason

for the customer to have the samples. Mr. Bauerle testified that Respondent only has

two samples of each product for each store.

26. Mr. Bauerle testified that after Complainant signed the contract, Mr. Bauerle

took the four samples back to Respondent’s Camelback store.

27. Ms. Ervin testified that after Complainant signed the contract, Mr. Bauerle

left the sample of the flooring that Complainant had chosen. Ms. Ervin testified that

several years earlier, a different carpet than Complainant had chosen was installed.

Although the carpet installer had recognized its mistake and corrected its error, Ms.

Ervin testified that she put an “X” or a “star” on the back of the sample that Mr. Bauerle

left with Complainant to make sure that Respondent installed the right floor.

The Installation of the Floor

28. Respondent’s subcontractor started installing the floor on Tuesday, August

23, 2011, or Wednesday, August 24, 2011, using the glue-down method. Complainant

remained at the residence during the installation.

29. Complainant testified that Respondent’s subcontractor’s crew left unopened

boxes of flooring in another room. Complainant testified that he could not lift the 27-

4 Id. at 1.

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pound boxes to open them and to examine the flooring and that Respondent’s

subcontractor did not lay out the flooring for Complainant to inspect before it was

installed.

30. Complainant acknowledged that he did not ask the subcontractor’s crew to

lay out the flooring so that he could examine it before it was installed, although at least

one member of the crew spoke English.

31. Mr. Koufidakis testified that Respondent’s policy does not require a

salesperson or customer service representative to go to the jobsite before a product is

installed in a customer’s property to ensure that the product that the customer selected

has been delivered.

32. Inspector Dimond testified that some contractors verify that a customer has

chosen a material before installing the material and that some contractors do not

perform such verification. Inspector Dimond testified that if Respondent hired a

subcontractor to install the flooring, industry standards do not require Respondent to

have an employee on site to supervise the subcontractor.

33. Mr. Bauerle testified that because he does not have anything to do with

installation, he normally calls customers after the flooring has been installed. Because

Mr. Bauerle felt that the installation might be stressful for Complainant because he

would be confined to certain areas of the house, Mr. Bauerle called Complainant after

Respondent started work on the project. Mr. Bauerle testified that although he did not

contact Complainant after the subcontractor started installing the floor, he gave

Complainant his cell phone number and instructed Complainant that he should not

hesitate to call Mr. Bauerle if anything came up during installation. Mr. Bauerle testified

that Complainant did not call him during the time Respondent’s subcontractor installed

the vinyl plank flooring.

34. Complainant testified that because rolling his wheelchair on the vinyl plank

flooring before it cured could cause damage, the subcontractor’s crew advised him to

remain in his bedroom and home office at the back of the house until installation was

complete. Although the flooring was installed first in those rooms, Complainant testified

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that indoor/outdoor carpet was laid on top of the flooring to protect it and that he was

not able to see very much of the floor.

35. Complainant testified that on Monday, August 22, 2011, furniture was

moved and that by Thursday, August 25, 2011, the floor was installed except for the

transition strips in the doorways.

36. On or about August 25, 2011, Mrs. Kauffman at Complainant’s request filled

out Respondent’s Certificate of Completion and Acceptance, rating as “Excellent” the

quality of the installation and seams and adding the following comments:

It’s wonderful! The moulding for tile needs to be installed. –The installers were great!! Very nice and accommodating!Thank you!5

37. Mrs. Kauffman testified that she was praising Respondent’s subcontractor’s

crew’s installation, not commenting on whether the correct floor had been installed.

Mrs. Kauffman acknowledged that she never compared the sample that Mr. Bauerle

had allegedly left with Complainant to the flooring that was installed.

38. Complainant testified that Mrs. Kauffman had no idea that he was

dissatisfied with the floor that was installed.

39. Complainant acknowledged that Respondent’s subcontractor installed

Mannington Adura vinyl plank flooring in Spalted Georgian Maple in the color Natural

(AW521), but stated that he never would have chosen the flooring if the sample had

shown the “mind-boggling” swirls, lines, grain, and “busy-ness” of the flooring that was

installed in his residence.

40. Mrs. Kauffman also acknowledged that Mannington Adura vinyl plank

flooring in Spalted Georgian Maple in the color Natural (AW521) was installed in

Complainant’s residence.

The Complaint about the Floor

41. Mrs. Kauffman testified that on Thursday, August 25, 2011, she observed

that the flooring was mostly installed and that the floor showed many more knots than

were shown on the sample.

5 Respondent’s Exhibit 2.

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42. Mrs. Kauffman testified that she did not say anything at the time because

she did not want to interfere, but that within the next day or so, Complainant stated that

the flooring that was installed was not what he ordered.

43. Complainant testified that he first noticed that Respondent had not installed

the floor that he had ordered on Friday of the week that it was installed, August 26,

2011. Complainant testified that he made a telephone call to Mr. Bauerle to complain

on the first day of the next week, when he had an appointment with his dentist, but that

Mr. Bauerle was on vacation in Italy.

44. Complainant acknowledged that although his day planner showed the

dentist appointments on Monday, August 29, 2011, and Thursday, September 1, 2011,

the only specific comment about the floor was the notation on Tuesday, August 30,

2011, that Respondent would bring the “Once and Done” cleaning solution.6

45. Complainant’s day planner indicated that he called Mr. Bauerle on Tuesday,

August 30, 2011, and left a message, but that there was no reply.7 Complainant

testified that he did not write everything in the day planner and if something was

missing, it did not mean that it did not happen.

46. Mr. Bauerle testified that the first time that Complainant contacted

Respondent after the installation was when he complained to Respondent’s installation

manager, Chris Trzeciak, that the transition molding strips that Respondent installed

between different kinds of flooring in Complainant’s residence were too high. Mr.

Bauerle testified that Mr. Trzeciak did not say that Complainant had any problems with

the flooring.

47. Mr. Bauerle testified that he went to Complainant’s residence on September

5 or 6, 2011, with samples of different kinds of molding that could be used for the

transition strips. Mr. Bauerle testified that he did not bring a sample of Mannington

Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural

(AW521) because Complainant had not complained about the appearance of the

flooring.

6 See Respondent’s Exhibit 4 at Cook 043.7 See Respondent’s Exhibit 4 at Cook 043.

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48. Mr. Bauerle testified that when he arrived at Complainant’s residence on

September 5 or 6, 2011, Complainant told him that Respondent had installed the wrong

flooring because the samples that he had been shown did not have as many knots as

the flooring that Respondent’s subcontractor installed. Mr. Bauerle testified that he

said he would have to obtain a sample of the floor that Complainant had ordered to

compare to the floor that was installed. Mr. Bauerle testified that he subsequently

brought a sample of Mannington Adura vinyl plank flooring in the pattern Spalted

Georgian Maple and color Natural (AW521) from Respondent’s Paradise Valley store

to compare to the flooring that had been installed in Complainant’s residence. Mr.

Bauerle testified that he determined that the flooring that was specified in the contract

had been installed.

49. Complainant testified that Mr. Bauerle initially agreed that Respondent had

installed the wrong flooring. Complainant submitted Mr. Bauerle’s September 29, 2011

e-mail to Mr. Koufidakis and Mr. Trzeciak that stated in relevant part as follows:

The following statements are NOT CORRECT!

Tues Sept 6:

I did NOT tell him that the material installed was not thematerial he ordered. I only agreed with him that the actualproduct had “MORE KNOTS” than the sample showed.Also, I never viewed anything with him on the computer. Hecalled me the following day and told me that he thought thewrong color was installed, by the information he found onthe Mannington website. . . .8

The Allegedly Missing Sample

50. On March 23, 2012, Complainant’s attorney took Mr. Bauerle’s deposition in

Complainant’s civil action against Respondent. Mr. Bauerle testified in relevant part as

follows:

Q. Within how much time, or how long after that initial visitto check the moulding and you were told that[Complainant] believed the wrong flooring was installed,how long after that did you come back with the sample?

8 Complainant’s Exhibit 11 at BAKER 00034-00035.

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A. I believe it was within a day or two.

Q. And it was the same exact sample that was in – that youhad brought to [Complainant] previously?

A. No.

Q. It wasn’t the same exact sample?

A. I don’t believe so.

Q. Do you know what happened with that original sample?

A. When I sold [Complainant] his flooring, I was working outof our Camelback store, so I had taken the Camelbacksample out initially during his section process.

Q. Do you know whether that original sample is still locatedat the Camelback store?

A. I do not know about the whereabouts of that samplecurrently.

Q. Did the same from the Camelback store look or matchthe sample from the Paradise Valley store?

A. I don’t know. I hadn’t put the two of them together.9

Mr. Bauerle testified that after he retrieved the samples, he had not reason to keep

track of them.

51. Mr. Bauerle testified that after Complainant filed the civil action against

Respondent, Mr. Koufidakis collected samples from all of Respondent’s stores to

compare them and provided photographs of the samples to Complainant’s attorney.

52. Complainant testified that he did not know that Ms. Ervin had marked the

sample that Mr. Bauerle had left. Complainant testified that the sample was 25” x 28”.

53. Mr. Koufidakis testified that most of Respondent’s samples of Mannington

Adura vinyl plank flooring are 16” x 16”, although the size of samples may vary

9 Complainant’s Exhibit 22 at 25-26, ll. 14-11.

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somewhat depending on the size of the showroom. Mr. Koufidakis testified that

Respondent does not carry any samples that are sized 25” x 28”. Mr. Koufidakis

testified that Respondent’s policy is that samples are not supposed to leave the

showroom and that customers are not allowed to take samples from the showroom.

54. Respondent produced three samples of Mannington Adura vinyl plank

flooring in the pattern Spalted Georgian Maple and color Natural (AW521) that it used

to market the flooring.10

55. Complainant, Ms. Ervin, and Mrs. Kauffman all testified that none of the

samples that Respondent produced after the dispute arose looked like the sample that

Mr. Bauerle had left with Complainant. Complainant, Ms. Ervin, and Mrs. Kauffman all

testified that the sample that Complainant had chosen looked like the photograph on

Mannington’s website of the Adura vinyl plank flooring in the pattern Spalted Georgian

Maple and color Natural (AW521), in that it had a relatively clear grain and that all of

the samples that Respondent later produced had more swirls and knots.

56. Complainant testified that the first time that Mr. Bauerle came out to the

house after Complainant complained that the wrong floor had been installed,

Complainant still had the sample. Complainant testified that Mr. Bauerle placed the

sample on the floor of the living room. Complainant testified that at his request, Mr.

Bauerle took the sample to find a better match for it. Complainant testified that he may

have seen the sample under Mr. Payton’s arm when he performed his inspection.

57. Ms. Ervin testified that after Complainant complained about the floor,

someone from Respondent, perhaps Mr. Payton, took the sample when Complainant

wanted to put the sample on the floor to see if it matched.

58. Mrs. Kauffman testified that after Complainant realized that Respondent had

installed the wrong floor, the sample that Mr. Bauerle had left “magically disappeared.”

59. Ms. Ervin testified that after the sample that she had marked was taken, she

went to Respondent’s Camelback store to find the sample. Ms. Ervin testified that she

did not find the Mannington Adura vinyl plank flooring sample of the pattern Spalted

10 See photographs of samples at Complainant’s Exhibits 12, 13, 14. The actual samples were ondisplay as demonstrative exhibits throughout the hearing.

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Georgian Maple and color Natural (AW521) that she had marked at Respondent’s

Camelback store.

Inspector Dimond’s Testimony

60. Inspector Dimond performed a jobsite inspection on May 21, 2012.

Inspector Dimond acknowledged that the installation of the vinyl plank flooring in

Complainant’s residence was professional and workmanlike.

61. Respondent’s customer service representative, Dan Davis, attended the

jobsite inspection on its behalf. Mr. Davis had no previous involvement with

Complainant and did not bring any samples of Mannington Adura vinyl plank flooring in

the pattern Spalted Georgian Maple and the colors Natural (AW521) or Honey

(AW522). Inspector Dimond testified that Mr. Davis had very little to say at the jobsite

inspection and was “noncommittal.”

62. Mr. Koufidakis testified that the first time he heard the claim that

Respondent had installed a different product than what Complainant had ordered was

when he received the CWO.

63. Mr. Koufidakis acknowledged that he had very little experience with

customer complaints that have been filed with the Registrar. Mr. Koufidakis stated that

Respondent’s salespersons do not go to the Registrar’s jobsite inspections.

64. Inspector Dimond testified that Complainant stated at the jobsite inspection

that the flooring that Respondent installed did not match the sample that he had been

shown and that the samples in Respondent’s attorney’s possession were not what he

had been shown when he selected the flooring.

65. Inspector Dimond testified that at the jobsite inspection, Complainant

showed him a box of the flooring that Respondent had installed that was marked

“Mannington Adura Spalted Georgian Maple Natural AW521.” Inspector Dimond

testified that he consulted Mannington’s website and saw that the photograph on the

website of Adura Spalted Georgian Maple in Natural AW521 showed much less

knurling than the photograph of Adura Spalted Georgian Maple in Honey AW522.

66. Inspector Dimond testified that based on the photographs on the

Mannington website, Complainant’s Complaint, and his jobsite inspection, he

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concluded that Respondent had placed the wrong product in the boxes and HAD

installed Adura vinyl plank flooring in the pattern Spalted Georgian Maple in the color

Honey (AW522) in Complainant’s residence rather than the color Natural (AW521) that

Respondent had contracted to install.

67. Inspector Dimond testified that if a different product is delivered than what

the customer ordered, it is incumbent upon the contractor to obtain clarification before it

installs the product. Inspector Dimond also testified that although terms such as

Paragraph No. 7 in Respondent’s form contract were not uncommon in the construction

industry because homeowners frequently do not oversee construction projects, the

contractor must ensure that materials that are permanently affixed to a homeowner’s

property are what he ordered.

68. Inspector Dimond acknowledged that it was Complainant’s responsibility to

inspect the flooring before it was installed to make sure that it conformed to the sample

that Complainant had selected.

69. Inspector Dimond acknowledged that he does not “dive into” a case before

a jobsite inspection. Inspector Dimond acknowledged that he did not request a sample

of the Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple in

any color at the inspection.

70. Inspector Dimond acknowledged that he had never seen representations of

Adura vinyl plank flooring in the pattern Spalted Georgian Maple in the colors Natural

(AW521) or Honey (AW522) except at Mannington’s website. Inspector Dimond

testified that a sample would be more accurate than the picture on the website.

71. Mr. Payton testified that it was “absurd” to think that Adura vinyl plank

flooring in the pattern Spalted Georgian Maple and color Honey (AW522) could have

been mistakenly placed in cartons marked Natural (AW521). Mr. Payton explained that

the products are manufactured in China and that after the factory is set up, the typical

product run consists of hundreds of thousands of lineal feet. Mr. Payton testified that

due to the high cost of changing to setup to manufacture a different color or pattern, it

is virtually impossible that a product could be placed in an incorrectly labeled box for

distribution.

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72. Inspector Dimond acknowledged that if Mannington Adura vinyl plank

flooring in the pattern Spalted Georgian Maple and color Natural (AW521) was

installed in Complainant’s residence, Respondent had no obligation to comply with the

CWO.

Respondent’s Investigation of the Complaint

73. Mr. Koufidakis testified that if a customer complains that an installed

product does not match the color or pattern of what the customer ordered,

Respondent’s standard operating procedure is to involve the distributor and the

manufacturer. Mr. Koufidakis testified that he involves the distributor and manufacturer

because such a complaint is a product issue, rather than an installation issue.

74. Mr. Payton testified that he first heard about Complainant’s Complaint from

Respondent’s installation manager, Chris Trzeciak, when Mr. Payton was about to go

on vacation over Labor Day.

75. Mr. Payton testified that he obtained the packing list/invoice for the product

that was ordered for Complainant’s job11 and verified that the Mannington Adura vinyl

plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521) that

was specified on the contract had been shipped to and installed in Complainant’s

residence. Mr. Payton testified that he spoke to the buyer at Longust Distributing and

determined that there had been no reported problems about the quality of the batch

that included the flooring that had been installed in Complainant’s residence.

76. Mr. Payton testified that he performed an inspection of Complainant’s floor

in mid-September 2011. Mr. Payton testified that he put a 16” x 16” sample of

Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color

Natural (AW521) on Complainant’s floor and that that color and pattern on the sample

were indistinguishable from the color and pattern on the installed floor. Mr. Payton did

not recall where he got the sample, whether it was from Longust Distributing or from

one of Respondent’s stores.

77. Ms. Harris testified that at Mr. Payton’s or Mr. Koufidakis’s request, she

inspected the floor in Complainant’s residence in October 2011. Ms. Harris testified

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that before the inspection, she picked up a sample of Mannington Adura vinyl plank

flooring in the pattern Spalted Georgian Maple and color Natural (AW521) at

Respondent’s Camelback or Paradise Valley store. Ms. Harris testified that she

verified that the vinyl plank flooring installed in Complainant’s residence was

Mannington Adura in the pattern Spalted Georgian Maple and color Natural AW521

and that the flooring had no manufacturing defects. Ms. Harris took a photograph of

Complainant’s floor with the sample of Adura Spalted Georgian Maple in Natural

AW521 laid on it; the color and pattern on the sample were indistinguishable from the

color and pattern on the installed floor.12

78. Ms. Harris testified that she believed that she returned the sample that she

had used in her inspection to Respondent’s store on Camelback Road.

79. Based on Ms. Harris’s inspection, Robbin VanAtta-Duber, Mannington’s

Manager of Residential Claims, wrote a letter to Mr. Koufidakis dated October 17,

2011, that provided in relevant part as follows:

I am writing in reference to the claim filed on[Complainant’s] Mannington Adura Plank floor covering,pattern AW522. I am sorry to hear of [Complainant’s]concern, and I appreciate your bringing the situation to myattention.

As discussed, I have thoroughly reviewed[Complainant’s] claim and concur no manufacturing orwarranted conditions have been found. Review of thepictures show [Complainant’s] floor is displaying theappropriate appearance meant for this type of floor.

I can assure you if at anytime during review of[Complainant’s] claim an obligation on Mannington’s parthad been shown his claim would have been handledaccordingly. Mannington is a company that does the rightthing; however, the condition of their floor covering is notwarranted; therefore, I am unable to make any adjustmentson this claim.13

11 See Respondent’s Exhibit 3.12 See Respondent’s Exhibit 8 at Baker 00016.13 Complainant’s Exhibit 9; Respondent’s Exhibit 8 at 2.

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On or about October 17, 2011, Mr. Koufidakis forwarded Ms. VanAtta-Duber’s October

17, 2012 letter to Complainant.14

80. Ms. Harris testified that Ms. VanAtta-Duber’s reference to pattern AW522 in

the October 17, 2011 letter was a typographical error.

81. On or about November 2, 2011, Complainant responded to Ms. VanAtta-

Duber’s October 17, 2011 letter, in relevant part as follows:

Thanks for your letter dated October 17, 2011 with whichyou enclosed an unsigned letter from Robbin VanAtta-Duberof that same date, to the effect that [Complainant] got whathe ordered. It seems to me that Ms. VanAtta-Dubercompared the photos that Megan Harris took of my floor onOctober 5th with the photos in the Mannington website.

The problem is that the photos Ms. Harris took, thereference in Ms. VanAtta-Duber’s letter and the websitephotos all refer to pattern 522 which is not the pattern that ison the contract I signed on August 2, 2011, copy enclosed.The contract clearly shows that the order was for patternAW521.

By you folks telling me that I ordered pattern 522 and,apparently not looking at the contract, it appears to me thatyou have been “hoist by your own petard.”

When I was in the selection process, your salesman, RobBauerle, recommended that I check with the Manningtonwebsite to compare the various patterns available for Adurawhich I did. Enclosed are copies from that website:

Product 521 and Product 522. You can plainly seethe pattern difference.

Phil, I am 85 years of age and I am stuck in a wheelchair forthe rest of my time on earth. That is the reason I exceededmy budget and decided on Adura – It would be easier to rollmy wheelchair on the smooth surface.

Phil, we could settle this matter amicably if you wouldarrange for me to select another pattern of Adura and[Respondent] install it over the existing floor at no additional

14 See Respondent’s Exhibit 8 at 1.

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cost to me including reimbursement to me for the $520 Ipaid to the furniture movers.

I do not wish to go through the hassle of a lawsuit with[Respondent], but I will if it is necessary.

In her letter, Ms. VanAtta-Duber states: “Mannington is acompany that does the right thing.” Let’s take her at herword. I think they sent you the wrong pattern.15

82. On November 10, 2011, Ms. VonAtta-Duber sent Mr. Koufidakis a corrected

copy of the October 17, 2011 letter that was identical to the original letter except that

“AW522” in the first line had been changed to “AW521.”16 On that same date, Mr.

Koufidakis forwarded a copy of the corrected letter to Complainant.

83. On or about November 22, 2011, Complainant sent a letter to Mr.

Koufidakis, responding to the November 10, 2011 letter changing the product number,

in relevant part as follows:

If it is important that things be labeled correctly then itseems to me that the contents should be the same asrepresented by the label.

So now we come to the crux of my argument:

The Mannington Website clearly shows two photos ofSpalted Georgian Maple:

One photo shows AW521 Natural; and the other showsAW522 Honeytone.

On August 1st your salesman, [Mr. Bauerle], broughtsamples of both of them and I selected AW521 because itlooked like the one on Mannington’s Internet and it did notshow all the swirls every few inches.

Now, I refer you to my letter dated September 27 and theentry for Tuesday, September 6th when your salesman, [Mr.Bauerle], came to my house and we jointly inspected theflooring. [Mr. Bauerle] departed and took my AW521sample with him.

15 Respondent’s Exhibit 9.16 See Respondent’s Exhibit 10.

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And now, the saga of the missing AW521 sample!. . . .

So, Phil, my friend, it boils down to this:

The Mannington Website is MISLEADING and I relied on itin choosing my flooring; and

The sample that I used to select my flooring has(mistakenly) (conveniently) disappeared. You choose whichadjective fits.17

84. Mr. Koufidakis testified that if Respondent had determined that the wrong

product had been installed, it would have replaced the product immediately. Mr.

Koufidakis testified that Respondent did nothing wrong in Complainant’s claim because

Complainant ordered Mannington Adura vinyl plank flooring in the pattern Spalted

Georgian Maple and color Natural (AW521), the distributor provided Mannington Adura

vinyl plank flooring in the pattern Spalted Georgian Maple and color Natural (AW521),

and Respondent installed Mannington Adura vinyl plank flooring in the pattern Spalted

Georgian Maple and color Natural (AW521). Mr. Koufidakis testified that Respondent

was not going to install a different Mannington Adura product in Complainant’s

residence because Respondent did nothing wrong.

85. Mr. Koufidakis acknowledged that Mr. Trzeciak had offered to replace some

of the planks as an accommodation to Complainant18 but testified that the

accommodation did not impact his assessment that Respondent had done nothing

wrong. Mr. Koufidakis testified that Complainant had rejected Respondent’s proffered

accommodation.

The Nature of Mannington’s Samples and Representations on the Website

86. Mr. Payton and Ms. Harris testified that Mannington’s website shows two

colors for the pattern Adura Spalted Georgian Maple: (1) Natural (AW521); and (2)

Honey (AW522). Natural is the lighter shade.

17 Respondent’s Exhibit 11.18 See Complainant’s Exhibit 11 at 40.

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87. Mrs. Kauffman testified that the photograph at Mannington’s website for

Adura Spalted Georgian Maple vinyl plank flooring in the color Honey (AW522) is

darker than the photograph for Natural (AW521). Mrs. Kauffman testified that the

photograph for Honey (AW522) also shows more swirls than the photograph for Natural

(AW521).

88. The Mannington website has an option to show an entire floor with the

selected product installed.19 Mr. Payton testified that when the room size for Adura

Spalted Georgian Maple in the color Natural (AW521) is clicked at Mannington’s

website, a room in which Adura Spalted Georgian Maple in the color Honey (AW522) is

shown because the pattern is the same and the manufacturer saved money by only

installing the pattern in one room. Mr. Payton testified that even an 85-year-old man

should know from Mannington’s website that Adura Spalted Georgian Maple is one

pattern, even though it comes in two colors.

89. Ms. Harris and Mr. Payton testified that the only difference between

Mannington Adura vinyl plan flooring in the pattern Spalted Georgian Maple in the color

Natural (AW521) and Adura vinyl plank flooring in the pattern Spalted Georgian Maple

in the color Honey (AW522) is that Honey is darker than Natural, but that the two colors

have the same pattern. Mr. Payton testified that the Adura Spalted Georgian Maple

pattern had “a lot of action.”

90. Ms. Harris testified that the manufacturer prepares the samples and that all

the samples are different, but all represent the same flooring. Ms. Harris testified that

there were eight different planks in the Adura Spalted Georgian Maple pattern. Ms.

Harris testified that although the samples do the best job possible to represent the

appearance of the floor, it is impossible for a 16” x 16” sample to show the appearance

of an entire installed floor.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction.20

19 See Complainant’s Exhibit 3.20 See A.R.S. §§ 32-1151 to 32-1169.

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2. Complainant bears the burden of proof to establish Respondent’s statutory

violations by a preponderance of the evidence.21 Respondent bears the burden to

establish affirmative defenses by the same evidentiary standard.22

3. “A preponderance of the evidence is such proof as convinces the trier of fact

that the contention is more probably true than not.”23

4. Complainant did not allege at the hearing that Respondent failed to install the

Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color

Natural (AW521) that was specified in the contract. Instead, the gravamen of

Complainant’s complaint is that Mr. Bauerle and Mannington’s website allegedly

provided samples of the flooring that did not accurately depict the flooring’s

characteristics, specifically, the degree of swirling, knottiness, and knurling, and that

Complainant reasonably relied on the inaccurate samples to his detriment when he

signed the contract.

5. Because Complainant acknowledged that Respondent installed the

Mannington Adura vinyl plank flooring in the pattern Spalted Georgian Maple and color

Natural (AW521) in his residence that written contract required, Complainant did not

establish that Respondent departed from an applicable building specification in

violation of A.R.S. § 32-1154(A)(2).24

6. When Inspector Dimond issued the May 29, 2012 CWO, he did not have the

benefit of any samples of Mannington Adura vinyl plank flooring in the pattern Spalted

Georgian Maple in the colors Natural (AW521) or Honey (AW522). Inspector Dimond

acknowledged that he issued the CWO based upon his belief that Respondent had

installed Mannington Adura vinyl plank flooring in Spalted Georgian Maple in the color

Honey (AW522) in Complainant’s residence rather than in the color Natural (AW521)

21 See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazannov. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).22 See A.A.C. R2-19-119(B)(2).23 MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960).24 A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinaryaction against a contractor’s license, “[d]eparture from or disregard of plans or specifications or anybuilding codes of any state or any political subdivision of the state in any material respect which isprejudicial to another without consent of the owner or the owner’s duly authorized representative and

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that the contract required. Inspector Dimond also acknowledged that if his belief was

later shown to be unfounded, Respondent would have no obligation to comply with the

CWO. Because Respondent’s installation of the Mannington Adura vinyl plank flooring

in the pattern Spalted Georgian Maple and color Natural (AW521) that the contract

required provides a legal justification for its failure to comply with the May 29, 2012

CWO, Complainant did not establish that Respondent violated A.R.S. § 32-

1154(A)(23).25

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the

Registrar’s Order, Complainant Lew Cook’s Complaint in Case No. 2012-2313 against

Respondent Baker Brothers Floorcovering Inc. dba Baker Bros. Area Rugs and

Flooring’s License No. K-8.162303-D shall be dismissed.

In the event of certification of the Administrative Law Judge Decision by the

Director of the Office of Administrative Hearings, the effective date of the Order will be

40 days from the date of that certification.

Done this day, May 9, 2013.

/s/ Diane MihalskyAdministrative Law Judge

Transmitted electronically to:

William A. Mundell, DirectorRegistrar of Contractors

without the consent of the person entitled to have the particular construction project or operationcompleted in accordance with such plans and specifications and code.”25 A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinaryaction against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with thischapter or with rules adopted pursuant to this chapter without valid justification within a reasonableperiod of time after receiving a written directive from the registrar.”