ALJDEC decisions subject to certification as final

07F-M0018-ROC · Registrar of Contractors · 2007-04-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: 22 March 2007 APPEARANCES: Complainant: Donna Uptain, Complainant; Daniel Gignac, Co-owner of Complainant’s home and Complainant’s brother-in-law. Respondent: Jerry Morgan, Attorney for Respondant; Lori Wieltschnig, Director, Customer Service, Standard Pacific Homes; Diane Bruce, Customer Service Manager, Standard Pacific Homes; Ron Jolly, Lead Field Supervisor, Timberlake Cabinets. Others: Dennis Cook, Inspector, Arizona Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Maurice McWhirter _____________________________________________________________________ Complainant filed a complaint with the Arizona Registrar of Contractors (“ROC”) alleging Respondent committed violations of certain provisions of ARS §32-1154(A). Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the under-signed Administrative Law Judge now makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the ROC. FINDINGS OF FACT 1. Complainant had a home constructed by Respondent. Although she accepted delivery of the home, she was never satisfied with the kitchen cabinets. Complainant executed documentation entitled “Your Wood Cabinets” that notified her that there are variations in wood color and grain, and that the color of the cabinets will change over time, she felt the finish was rough, the wood in the cabinets didn’t match, and that the hardware on the cabinets was mismatched and did not close several doors close enough. 2. Two inspections of Complainant’s cabinets were conducted by the ROC. The first occurred in December 2005, when ROC Inspector Mr. Lamp conducted a building confidence visitation. As a result, several of the cabinets were repaired and/or replaced. However, Complainant was still not satisfied with the cabinets color variation, finish and hardware. As a result, she filed a Complaint with the ROC about the cabinets, and ROC Inspector Cook inspected the cabinets on 29 August 2006. 3. Mr. Cook issued a Corrective Work Order regarding the cabinets on 26 September 2006, which stated, in pertinent part:

“It is the opinion of this inspector that the contractor has properly fulfilled the terms of the contract in regard to the cabinetry and the workmanship meets the standards of the industry.”

Complainant disagreed with Mr. Cook’s evaluation and requested a hearing on the matter. 4. Mr. Cook testified that the cabinetry workmanship was satisfactory. The color variation was natural and not aesthetically displeasing. The installation was proper. He noted some minor bubbling in the finish, a minor crack in a cabinet face panel, and one door that did not close exactly flush with the cabinet, but that all these discrepancies were minor, nominal, and within industry standards and norms. He further indicated that he was informed that there had been some remedial work done with the cabinets prior to his inspection, and that he was informed of that at his inspection. Finally, he stated that although it was possible that another ROC inspector might have a differing opinion from his regarding the adequacy of the cabinets, he had been inspecting jobsites for the ROC for over 8 years, and in that time had inspected hundreds of cabinets. 5. Complainant brought the cabinet doors that she felt were inadequate in terms of color variation and finish for the tribunal to inspect. This tribunal noted 1) a very minor crack, less that ½ inch in length, which was completed filled and attached to the wood surface by the action of the cabinet finish itself, 2) a satin smooth finish on the wood, with no discernable imperfections, and 3) several cabinet doors of a slightly varying light color, all of which appeared within industry norms and not displeasing to the eye. 6. Respondent has built over 3200 homes in the last 2 years, and in that time has had only 3 ROC complaints lodged against it.

CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the ROC pursuant to ARS §32-1104 and Title 4, Chapter 9, Article 1 of the Arizona Administrative Code. 2. The fact that the ROC inspector opined that the cabinets met all applicable industry standards in terms of workmanship, construction and installation is telling. In cases such as this, the skill and expertise of the ROC Inspector who is professionally skilled and knowledgeable of the standards imposed by the ROC (as opposed to the standards adopted by other construction or manufacturing industry groups or associations, or the standards of the Complainant) must be given a certain deference. It is obvious to this tribunal that Complainant’s standards have not been met by the Respondent; however, it is the ROC’s standards that apply in this case, and not Complainant’s own sense of aesthetics. Mr. Cook’s opinion was unequivocal, and this tribunal, having examined the cabinets in question, concurs with it. 3. The burden of proof generally at an administrative hearing falls to the Complainant. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997). Further, the standard of proof at hearing is by a “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). Complainant has failed to sustain the burden of proving, by a preponderance of reliable, substantial and probative evidence, that Respondent violated ARS §32- 1154(A).

RECOMMENDED DECISION In view of the foregoing, it is recommended to the ROC that this citation, together with the complaint upon which it is based, be dismissed, that no action be taken against Respondent’s license, and that this case be remanded back to the ROC for further appropriate disposition. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, April 6, 2007

______________________________________ Maurice McWhirter Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ -----------------------

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