ALJDEC

01F-2126-ROC · Registrar of Contractors · 2002-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 9, 2002 APPEARANCES: Complainants appeared on their own behalf and Respondent was represented by its attorney, Jonathan Olcott. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. During the course of the hearing, the caption in this matter was amended to add Clinton Bowling, Evonne’s husband, as a Co-Complainant.

2. Pursuant to contract, Complainants retained Respondent to install a new granite countertop in their kitchen. Complainants allege certain deficiencies in the countertop material and same are discussed in the findings below.

3. Complainants contend that there are at least two damaged areas in their new countertop. They claim that they have two unacceptable cracks in the area in front of their new sink and cracks around the installation of the new kitchen sink faucet. Respondent’s position, is that the areas in question are nothing more than natural fissures to be expected in granite material and moreover, that it has completed appropriate corrective work to fill the fissures that Complainants find unsatisfactory.

4. The following salient facts were adduced at the hearing and are important to note:

a. Complainants contend that the above-described cracks or fissures were first observed the very next day after Respondent installed the new countertop. Although they immediately brought this issue to Respondent’s attention, Respondent disagreed that there was any deficiency in the granite and suggested that there should be a courtesy inspection from the Registrar of Contractors, in an attempt to resolve the issue. b. An inspector for the Registrar of Contractors did conduct a courtesy inspection and advised Respondent that some corrective work was needed to attempt to hide the cracks or fissures in question. He did not believe that the granite needed to be replaced. c. After Respondent performed remedial work on the cracks or fissures, Complainants were still not satisfied with the condition of their new granite countertop. They contend that the material is ruined by the cracks that they observe and that same should be replaced. Therefore, they filed the instant complaint with the Registrar of Contractors. d. Subsequent to the filing of the instant complaint, the same inspector from the original courtesy inspection conducted another jobsite inspection on March 7, 2001. As a result of said inspection, the inspector issued a document entitled “Corrective Work Order” (“CWO”). The CWO directed Respondent to correct the two fractures at the sink front by appropriate means. This CWO did not direct Respondent to replace the granite countertop. e. The aforementioned CWO specifically indicated that there were no other items of the complaint upon which Respondent was required to accomplish corrective work. Specifically, said document found that the alleged fractures at the sink faucet holes had been adequately “polished- out” and no deficiencies were evident in said area at the time of the March 7, 2001 jobsite inspection. f. After the issuance of the CWO, Respondent performed further corrective work on the alleged fractures, claiming that it had achieved compliance with the terms of the CWO. Complainants were still not satisfied and thus, they requested the instant hearing. g. The assigned Registrar of Contractors’ inspector appeared at the instant hearing and was called as a witness by Complainants. He not only testified regarding his original inspections but in addition he indicated that he had just completed a “pre-hearing jobsite inspection.” The inspector testified that he believed the areas in question in front of the sink are nothing more than hairline cracks which needed to be appropriately repaired. h. The inspector indicated that when he observed the hairline cracks, at the March 7, 2001 inspection, they appeared to stand out as black lines and therefore, highly visible unacceptable repairs. At the “pre-hearing jobsite inspection” he was able to observe that Respondent had completed additional remedial work on the cracks. He observed that the black lines were gone, there was no vertical or horizontal displacement of the cracks, the cracked areas were now smooth to the touch, and the color of the filler placed into said areas adequately matched the colors in the granite countertop. Thus, the inspector found compliance with the CWO. i. Among others, Respondent presented testimony from an individual, who is currently employed with them on a part-time basis. This person testified that he has been involved in the stone business since 1947. According to this individual, the granite purchased by Complainants is a material that has naturally occurring cracks or fissures. He did not find the cracks or fissures in Complainants’ countertop to be out of the ordinary for the type of material supplied. Moreover, he testified that the repair was completed and blended in well with the rest of the countertop. j. Respondent entered into evidence a letter from the supplier of the granite material and said document indicated that the material used for Complainants’ countertop is a natural product, which may have blemishes. Moreover, said document states that the material may have “lines or veins that may at time appear to be cracks, but in fact are a natural part of the stone.”

5. Notwithstanding the understandable desire of Complainants for perfection in their new countertop, the workmanship standard, as applied by the Registrar, is whether the workmanship or material involved is within minimum industry standards for good and proper workmanship. The Registrar does not apply perfection standards nor does it apply a standard of homeowner satisfaction.

6. Construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections or repairs of construction materials prior or subsequent to completion of a specified project. The evidence presented at the hearing failed to establish that repairs of minor cracks or fissures in granite is not an acceptable remedial practice.

7. Considering all of the evidence and testimony presented at the instant hearing, it is determined and held that the repairs on the countertop have accomplished an acceptable remedial solution to the complaints lodged by Complainants. Thus, Complainants failed to sustain the requisite burden of proof on these issues. . . . . . .

CONCLUSIONS OF LAW

1. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed.

Done this day, January 11, 2002

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2002, 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