ALJDEC decisions subject to certification as final

06F-1421-ROC-com · Registrar of Contractors · 2009-03-03

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

COMPLIANCE HEARING: February 26, 2009.

APPEARANCES: >The Complainants appeared in their own behalf. >The Respondent was represented by its attorney, Pamela H. Gulsvig, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order on Compliance Hearing are made.

FINDINGS OF FACT

1. At the outset of the scheduled compliance, an amendment was requested and permitted to the filed Complaint, Citation and Case Caption so as to reflect that the correct spelling of the last name of both Complainants is Perieff (and not Periett))

2. The instant administrative hearing was convened in order to determine whether Respondent had substantially complied with the terms of a written settlement agreement concluded between the parties shortly prior to the date on which this matter had been originally set for a hearing on the merits. The parties’ entry into such settlement resulted in the vacating of the previously scheduled hearing, the remanding of the matter to the forwarding agency and the entry by the Registrar of an Order closing the Citation and Complaint in this action.

3. Complainant specifically stated at the start of the proceedings that the sole items in issue at the present time consisted of the composition of the replacement kitchen cabinet doors and drawer fronts and also the dimensions and functioning of a spice drawer positioned under the range or cooktop. A finding is warranted that with respect to all other items or elements contained in the parties’ settlement agreement, Respondent had appropriately complied with its applicable obligations thereunder.

4. The specific pertinent provisions of the parties’ settlement agreement that control the respective entitlements and obligations of the parties with respect to the above-identified remaining items in issue are as follows:

#1) “replacements cabinet doors and drawer fronts (as described below) for all of the installed cabinets in the Residence; ……………The replacement cabinet doors and drawers will be Shaker II flat panel full overlay plywood maple veneer stain color Honey.”

#4) “shallow drawer with spice rack insert for cabinet directly under the cooktop to replace the one that was previously delivered and was too big;”

5. It was not disputed that Complainants had made a selection from provided samples of cabinet doors and drawer fronts that was denominated as “Shaker II” style, available from the manufacturer/supplier, Cardel, and that Respondent subsequently ordered and caused the installation of that style in Complainants’ kitchen.

6. The evidence tended to indicate that the composition of the installed lower cabinet doors and drawer fronts was primarily plywood materials with a maple veneer layer on the visible outer surfaces and also with an inner core layer made of Minimum Density Fiberboard (herein

called “MDF”). The evidence further revealed that the manufacturer always included a MDF core in this designated style of product as well and in many, if not most, other available selections.

7. Credible testimony from the Registrar’s assigned Inspector as well as from the product’s manufacturer confirmed that the use of MDF gave beneficial advantages over both solid wood materials and particle board materials. In point of fact, MDF was frequently considered by the industry to be in the category of plywood materials rather than pressed wood materials.

8. One of the co-Complainants was shown to possess above average knowledge and experience in the carpentry field, including familiarity with wood and wood-related materials. If any identified material was to have been prohibited, it would be the duty of Complainants to verbalize any such prohibition as part of the settlement’s terms. It must be held that to the extent the express wording of the settlement agreement referred to plywood, the provided and installed door and drawer fronts satisfied the definition set forth. More importantly, the asserted deviation from the purportedly agreed material specifications, if any, was not shown to have been prejudicial. On the contrary, persuasive testimonial and documentary evidence established that any such deviation would tend to be beneficial in that the use of MDF was demonstrated to be capable of providing more functional panel and dimensional stability, more resistance to shrinkage and cracking, excellent durability and more capable of accepting a better, more even and lasting finished surface.

9. No element of deception, misrepresentation, cost-cutting motivation or other misconduct was demonstrated on the part of Respondent in the selection process or the description and labeling of the product installed following the parties’ settlement understanding. In point of fact, had Respondent provided and installed an alternative product to the Shaker II style, a deviation from the agreed settlement terms would have been even more evident and perhaps impermissible.

10. With respect to the spice drawer issue, Complainants assert that although such a drawer was provided by Respondent at the designated location directly beneath the range or cooktop, the dimensions were incorrect, more specifically that the drawer height was insufficient to

allow for the storage of larger sized spice containers or jars and still be able to close. The drawer at this location that was initially provided prior to the settlement agreement was admittedly too wide and would not fit into the opening. This result was expressly mentioned in the wording of the agreement’s applicable subparagraph. In any event, it was demonstrated that the final installed drawer did accept the placement of many spice containers but when some larger size containers were placed onto the provided spice rack, the drawer could not be closed.

11. The placement of an operable drawer beneath the gas range/cooktop was an election not offered by Respondent in any of its homes throughout the community based upon somewhat understandable concerns of a fire danger. The homes, including that of Complainants, would have only a dummy or fixed facing door front matching the door fronts in the cabinetry installed beneath the range as well as in the adjacent cabinetry sections. Only because of the expressed desires of Complainants who insisted upon such a feature in their home did Respondent agree to include such under- cooktop spice drawer as part of the overall settlement.

12. The original manufacturer and installer declined to become involved with any alteration in the cabinetry that would provide a drawer under the range, and Respondent was forced to resort to another source to customize a drawer, utilizing the available door front face plate. This was accomplished, despite an initial effort that had resulted in the construction of a drawer too wide to fit into the opening. It was further shown that the drawer fabricated by the other supplier/manufacturer source was of a better construction that the customary drawers installed by Respondent’s prior manufacturer. The height difference of the provided drawer sides, shown to have been less than one-half of an inch, may well have been justifiably attributable to the fact that the underside of the cooktop appliance would potentially be at a slightly lower level than that of the bottom of the countertop covering material as well as to an understandable desire not to fabricate a drawer that would again be too large for the opening, as was the case with its predecessor drawer.

13. The parties’ settlement was silent as to specific height dimensions of the contemplated shallow spice drawer. No additional description was included as to the extent of shallowness of the drawer unit, but it appears likely that the use of such adjective meant that the

height dimension was to be or had to be somewhat less that the heights of other drawers in the kitchen cabinets.

14. Respondent is not held to have been at its peril to insure that the provided drawer would hold any and all sizes of spice containers. Although most spice racks are constructed with some degree of tilt, probably for easier container visibility, the extent of such tilting or even the presence of any tilting at all was not shown to be essential for an insert to be classified as a spice rack. The inner drawer space could be utilized for any kitchen-oriented utensils or could be used for various spices without a rack. Indeed, one of the co-Complainants who had sufficient talent and experience could easily fashion and craft some form of organizer component to more easily accept different sizes of spice containers.

15. Respondent did provide two additional spice rack inserts for use by Complainant in two adjoining top drawers to the right of the range cabinet under a countertop. Some conflicting testimony was presented with respect to whether such other racks and drawers were intended as temporary storage places while the under-range drawer was being constructed or as a permanent substitute for the storage place for spices in the under-cooktop drawer. It did appear that these other drawers, when fitted with the same sized spice racks, did accept spice containers of several different sizes without impeding the closing operation of the drawers.

16. The terminology in the settlement agreement referring to the subject drawer as a spice drawer is found to be merely descriptive of the placement and general size of an upper drawer unit in lower cabinet sections that provide a countertop level for either covering materials, sink openings or cooktop features, and such designation is not necessarily limited to the contents of the food materials or utensils placed within such a drawer. The obligation to also provide spice rack inserts is deemed to have been more than satisfied not only by providing two such racks, one in each of the top drawers of the two cabinet sections to the right of the cook top but also by providing two more inserts positioned side-by-side in the under-cooktop drawer. It further appears possible that by simply removing one of the side-by-side racks, any slightly larger spice containers could be accommodated within that same drawer.

17. It is found and determined that the provision by Respondent of the drawer in the top of the kitchen cabinet under the range or cooktop and of the four separate rack inserts substantially and appropriately complies with its duties under the terms of the settlement agreement.

18. The necessity to cut away a portion of the back wall of the ultimately installed under-cooktop drawer to accommodate some protruding gas piping to and from the cooktop unit (such piping having been reconfigured by Complainants through another specialty contractor), further evidencing a reason never to have had an operational drawer installed in that location, was a problem not addressed by the parties’ settlement agreement. To the extent that a bit too much of the back drawer wall had been cut away, although a matter that Respondent may deem appropriate to address, adjust or otherwise rectify, such over-cutting is not found to have constituted a breach of the settlement by Respondent.

CONCLUSIONS OF LAW

1. The evidence of record sufficiently demonstrated that Respondent has substantially and appropriately complied with its construction-related obligations under the applicable terms of the prior settlement agreement between the parties.

2. The concluded settlement agreement effectively eliminated any necessity for the holding of the original hearing on the merits. Consequently, the instant compliance hearing was essentially in the nature of a “rehearing limited to the issue of compliance.” It follows that the Order on Compliance Hearing to be entered in this Case at this time by the Registrar of Contractors will constitute a final administrative decision that may be appealed directly to the Superior Court. Another rehearing in this matter should not be and is not available to either party.[1]

RECOMMENDED ORDER ON COMPLIANCE HEARING

In view of the foregoing, it is recommended on Compliance hearing that the entire Citation and Complaint in case Number 06-1421 remain closed in accordance with the Registrar’s previously entered Order.

This Order on Compliance hearing, if and when approved and adopted by the Registrar of Contractors, shall constitute a final administrative decision, reviewable pursuant to the provisions of A.R.S.§12-901. 32- 1154(A)(7) and (3); namely, Rule R4-9-108, A.A.C.

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 forty (40) days from the date of that certification.

Dated: March 4, 2009. OFFICE OF ADMINISTRATIVE HEARINGS

__________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

William A Mundell, Director Registrar of Contractors Legal Department 3838 North Central Avenue (Suite 400) Phoenix, AZ 85012 - 1906

----------------------- [1] It may be observed that if the resulting ruling in this Compliance Hearing were to have established non-compliance by the Respondent/contractor, and if a corrective work condition were to be retained or formulated as part of the ultimately entered Order, it is entirely possible that the convening of another Compliance Hearing may potentially become necessary either to address the adequacy of any such further remedial work or to determine the validity of any claimed denial of access to the premises. However, no such future proceedings at the administrative level would appear to be warranted where, as here, substantial compliance was sufficiently demonstrated.

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