ALJDEC

01F-2344-ROC · Registrar of Contractors · 2001-11-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 26, 2001. APPEARANCES: Shirley Hassell, Complainant; Paul Levine, attorney for Complainant; Richard J. Herbert, attorney for Respondent; Steven C. Hedden, witness for Respondent; Kurt Konrath, witness for Respondent; Chris Burkhart, witness (excused prior to hearing); John C. Muller, witness for Respondent; Warren Duncan, Registrar of Contractors Inspector; Trent Lacock, witness for Respondent; and Barry Becker, attorney for Desert Stoneworks (subcontractor). ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang. _____________________________________________________________________ Classic Stellar Homes, Inc. was prevented from correcting the exposed substrate of Shirley Hassell’s kitchen countertops because Ms. Hassell refused to allow the proposed repair, certain that she would not like it. She requests that the Registrar of Contractors order Classic to re-install the countertops properly. Insufficient evidence was presented to establish that Classic has violated that statutes and rules governing licensed contractors in Arizona. Consequently, the undersigned Administrative Law Judge recommends that the complaint be dismissed. FINDINGS OF FACT 1. On March 23, 2001, Shirley Hassell filed a complaint against Classic Stellar Homes, Inc. (“Classic”), the general contractor that built her home. Warren Duncan, Registrar of Contractors Inspector, conducted a job site inspection on April 6, 2001. On April 11, 2001 he issued a Corrective Work Order ordering Respondent to correct the air conditioning flow to Ms. Hassell’s son’s bedroom and to “correct by appropriate means” the problem stated as, “Bullnose of kitchen countertops does not conceal edge of plywood substrate when observed at a normal standing or sitting position.” A complaint about the way the kitchen sink sat did not require action by the contractor. The sole issue remaining at the time of the hearing in this matter was correction of the exposed substrate of the countertop. The issue of the air conditioning was settled prior to hearing. Ms. Hassell did not dispute the sink issue. 2. Undisputed evidence was submitted at hearing by both parties that Classic proposed to add a trim beneath the countertops to cover the exposed substrate. Ms. Hassell accepted one proposal, then changed her mind and refused access to her home to make the repair. Classic then proposed another type of trim, to be added as if an upgrade option had been ordered, with Ms. Hassell to approve the color. Ms. Hassell accepted this at first but again refused access to allow the correction. Classic has made several offers since then to come complete the corrective work, but Ms. Hassell refuses. She testified that someone told her she would not be happy with the result if the trim was used. She remains adamant that the only acceptable repair is to re-install the countertop at a lower level so that no substrate is revealed. Classic documented at least four attempts to come and correct the problem using various trim packages that she could choose. Its attempts to address the issue began months prior to Ms. Hassell’s complaint. A Classic witness and the Registrar of Contractors Inspector testified that using trim to cover the exposed substrate is a standard corrective measure. 3. Ms. Hassell’s attorney argued that a question exists as to whether adding the trim will bring the countertops within minimum workmanship standards. He argued that there is also a question as to whether the countertops Ms. Hassell received were substantially similar to the model home that she viewed prior to ordering her particular countertop package (both were granite though not the exact same kind). He argued that Classic erred in installing the countertops and she is entitled to have it done right because that is what she bargained for and what she paid for. Specifically, he said, “Trim is a Band Aid after you’ve created the problem.” He argued that Classic should be required to replace the granite countertops and install them correctly. 4. Classic’s attorney argued that variations in the thickness of granite is common because it is a natural material. Installing trim to address this particular problem is the standard corrective action in the industry. He argued that Classic is not in violation of the applicable statutes and therefore no disciplinary action should be taken against it. 5. It should be noted that the exposed substrate was not noticeable to anyone until Ms. Hassell bought her couch. The couch sits opposite the kitchen island and sits rather low. It was not until she started using the couch that she noticed the exposed substrate. 6. According to the records of the Registrar of Contractors, the license in this matter has had 4 complaints filed against it in the last two years and has no history of disciplinary action by the Registrar of Contractors. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to A.R.S. §§32-1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. §32-1154(A)(3), (7) and (23) and A.A.C. R4-9-108. 3. The Arizona Revised Statutes at §32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires all work done by contractors to meet minimum workmanship standards. A.A.C. R4-9-108. 4. The Arizona Revised Statutes at §32-1154(A)(7) provides for suspension or revocation of a contractor’s license for the “doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured”. 5. The Arizona Revised Statutes at §32-1154(A)(23) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 6. The Registrar of Contractors may consider the prior record of a contractor in any disciplinary proceeding provided the records are introduced into evidence. A.A.C. R4-9-117. On standing motion by the Registrar of Contractors, the computer records of the Registrar of Contractors may properly be considered to be evidence in the event the Administrative Law Judge finds a violation of any of the statutory provisions cited in the Citation and Complaint. Classic’s prior record appears to be very good, though the issue may be moot as the Administrative Law Judge cannot find sufficient evidence of a violation of the above statutes. 7. In this case, Classic remained willing to correct the exposed substrate in a manner that is generally accepted in the industry, even prior to Ms. Hassell’s complaint. Ms. Hassell has refused to allow Classic to even attempt the correction, certain that she would not like it. She insists that the countertops be re-installed. 8. Construction work, such as that at issue herein, is not a perfect science. It is common in the industry to require corrections, repairs, or replacements of poor workmanship in order to bring the project up to appropriate industry standards. In this regard, the Registrar of Contractors generally allows contractors a reasonable opportunity to complete necessary remedial work. Ms. Hassell elected to file a complaint with the Registrar of Contractors and pursuant to said election, she was required to allow the Registrar’s normal process to be followed. The instant record failed to demonstrate any health or safety reasons why she could not have allowed the countertops to be corrected by Classic. The basis for her lack of cooperation was her insistence that the issue be corrected in a manner dictated by her, yet no legal authority requires Classic to correct items as the homeowner dictates. The salient facts and circumstances presented in the instant case militate against any finding of violation by Respondent of the spirit and intent of the State’s Contracting laws. RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the Registrar of Contractors decline to impose any disciplinary action against Classic Stellar Homes, Inc. It is further recommended that this matter be dismissed in its entirety. Done this day, November 30, 2001. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, 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