ALJDEC

00F-1996-ROC · Registrar of Contractors · 2000-09-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 5, 2000 APPEARANCES: Don Wilkinson, Esq. on behalf of the Complainant George Firnschild, Esq. on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The Complainant (Purofirst), was contracted to do some restoration work on a water damaged townhouse, the Sharpe home, in Scottsdale, Arizona. For the purposes of this Recommended Order the kitchen cabinets are the only item of concern. 2. Purofirst contacted the Respondent to see if the Respondent could supply and install the kitchen cabinets. 3. David Perlin (Perlin), on behalf of Purofirst and Jay Douglas (Douglas), a sales representative for the Respondent, met at the Sharpe Home, to look at the cabinets which needed replacement. It was understood that the job required like kind and quality for the replacement cabinets.

4. Douglas took some measurements and submitted a quote to the Complainant on November 8, 1999. The quote was $7,758.85 for carmel (caramel) color, Imperial style cabinets. The selected cabinets only come in four colors of which two, “honey oak” and “caramel”, are relevant. 5. On November 11, 1999, Douglas sent a contract to the Complainant for the quoted cabinets with the amount listed at $6,052.22. Subsequently the countertops were withdrawn from the contract and $1,050.00 was deducted from the price. 6. On November 15, 1999, Perlin was at the Respondent’s place of business. Samples of the cabinets and the colors were on display. Perlin signed the contract for the cabinets and paid 50% down. The contract specified the cabinets were to be a caramel color and finish. Perlin testified that he did not know what color caramel was. 7. On December 14, 1999, Perlin waited at the Sharpe home for the delivery of the cabinets. Upon delivery Perlin paid the amount owing and then left. He did not check the cabinets for color or other attributes and did not wait for installation. The cabinets which were installed were a caramel color. The original cabinets which had been in the kitchen and which were still in the laundry room were a lighter color which was closer to what would be described as the “honey oak” color which was one of the alternative colors for the selected cabinets. 8. The following day, Mr. Sharpe contacted Perlin to complain about the installation, quality and the color of the cabinets. Perlin called the Respondent and one of its employees (Randy), came to look at the cabinets. Perlin asked Randy to have the color problem corrected but Randy claimed to have no authority to do this. 9. After further unsuccessful efforts to resolve the problem, Sharpe filed a complaint against Purofirst with the Registrar of Contractors (Registrar), on January 28, 2000. 10. Subsequently on February 16, 2000, Purofirst filed its complaint against the Respondent with the Registrar. 11. On March 2, 2000, Inspector Les Combs (Combs), of the Registrar’s Office did an on site inspection and concluded that the color of the new cabinets did not satisfactorily match the original cabinets. Other problems which were noted and to be corrected were secondary and do not require listing in this Recommended Decision. 12. On March 8, 2000, Combs issued a Corrective Work Order (CWO), which required the Respondent to correct the color problem with the cabinets as well as the secondary problems. 13. The Respondent took the position that it was not responsible for the color deviation and since correction would have required replacement of the cabinets, no corrective work was done by the Respondent. 14. At an unspecified date, but apparently in late March, 2000, Sharpe had the cabinets replaced by another contractor. Purofirst reimbursed Sharpe $4,500.00 and seeks restitution from the Respondent for that payment.

Conclusions of Law The allegations of the Citation and Complaint consist of A.R.S. §32- 1154(A)(3)/AAC R4-9-108 poor workmanship, (A)(7), wrongful conduct and (A)(23), failure to correct.

1. Purofirst had the contract with Sharpe and it had the primary responsibility to ensure the cabinet color was satisfactory to Sharpe. 2. Perlin testified that generally when certain items need to be similar in characteristics including color, a sample is normally submitted for matching purposes. He also testified that absent a sample in this case, he relied on the representation of Douglas that the color was satisfactory. 3. Perlin’s testimony regarding the asserted assurances which were given by Douglas, is not accepted. Douglas testified he did not and does not give such assurances but has the customer pick the color. The evidence shows that the parties were aware that the color could not be matched exactly, that there were only two practical color choices and that Perlin had the opportunity to ask to view the colors at the Respondent’s showroom. The Complainant’s asserted reliance on Douglas was misplaced because the parties had no prior dealings and Perlin had no reason to rely on Douglas for something as subjective color matching. The Complainant claimed he did not know what the color caramel was even though this was the color which was specified in the quote and contract. If the Complainant’s normal practice is to rely on a sample, it is not reasonable for the Complainant to be so inattentive to the color when no sample was forthcoming. Perlin had the opportunity in the showroom and upon delivery of the cabinets, to examine the color of the cabinets. He did not do so. Given the evidence in its entirety, it is concluded that customer satisfaction with respect to the color of the cabinets was the Complainant’s responsibility and that this responsibility was not accepted or otherwise transferred to the Respondent. 4. In view of the conclusion that the major issue between the parties was the color of the cabinets and the Respondent is not found responsible for that problem, and therefore not required to replace all the cabinets as was apparently done by Sharpe, the secondary matters addressed in Complaint and CWO do not establish an independent basis for finding possible violations. Recommended Order In view of the foregoing it is recommended that the Citation and Complaint upon which it is based be dismissed. Done this 7th day September, 2000

______________________________________ Allen Reed 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