ALJDEC decisions subject to certification as final

07F-M1210-ROC · Registrar of Contractors · 2007-12-18

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2007.

APPEARANCES: >The Complainant appeared in her own behalf. >The Respondent was represented by its attorney, Jerry D. Morgan, 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 are made.

FINDINGS OF FACT

1. At the outset of the scheduled hearing Complainant stated that the sole item remaining in issue under her filed complaint related to the fabrication treatment and allegedly inconsistent appearance at the corners of the granite countertops in the kitchen. A finding is warranted that as to all other enumerated complaint items, any purported deficiencies were either resolved or not otherwise being pursued by Complainant as part of her complaint, thereby no longer in issue hereunder.

2. As part of the purchase of a new home from Respondent and/or its affiliated entity[1] utilized for sales to prospective purchasers, Respondent agreed to and did construct and sell a residential structure to Complainant. The agreed purchase price appeared to have been fully paid by Complainant and she took possession in late February, 2006.

3. One feature of the home to be built consisted of providing and installing granite countertops in the kitchen. The type and appearance of such granite materials was to be and was, in fact, selected in advance by Complainant during visits to a decoration center to which Respondent directed all purchasers. The ultimate selection information was forwarded to a materials supplier, and Complainant actually viewed and approved the materials to be delivered and installed.

4. One aspect of the countertop selection process involved the making of a choice by Complainant of one out of five available edge detail treatment for the selected granite countertop. The testimonial and documentary evidence indicated that Complainant selected a bull-nose detail for the edging, shown to be the most popular option customarily selected by purchasers. This selection was designated and identified on the paperwork as option number 5. The agreed upgrade additional cost for the countertop upgrade, forming part of the overall construction and purchase agreement, was $7,520.00.

5. It was not disputed that the countertop installed in Complainant’s home had bull-nose edging all along the sides of the granite slab except at corners, specifically at an island, where the underlying cabinets would turn 90-degrees in another direction. At these corners, the treatment was to fabricate a bull-nose straight corner and not a bull-

nose rounded corner. Although some degree of rounding would remain visible as a result of finishing work at the corners, the corner itself was more pointed than rounded.

6. The instant complaint by Complainant was that she was and is still entitled to rounded corners on the island locations as a result of her specific selection of the bull-nose edging which produces a rounded feel and appearance along all edges. However, Respondent’s position was that a selection of a bull-nose edge by any prospective homeowner did not encompass rounded treatment at the corners of any countertop granite installation, but instead the treatment would consist of a bull-nose straight corner, as fabricated for and installed in Complainant’s home.

7. Irrespective of a strong extent of personal dissatisfaction on the part of Complainant with the treatment of the granite countertop corners on the island, the credible testimony of other individuals at the hearing with significant knowledge and experience, including the Registrar’s assigned Inspector even after a reconsideration of his initial opinion, tended to indicate that any selected bull-nose edging for a granite slab used as a countertop would not include rounded corners unless expressly indicated in the contract documents. Not only would a rounded corner selection necessitate further information for the fabricator as to the underlying cabinet configuration and measurements, likely also to require granite materials of a larger dimension, but also would necessitate a revision of the quoted cost price. Moreover, it was shown by the evidence that this Respondent never has offered or provided rounded corners on any selected bull-nose edge detail installation.

8. Complainant additionally contends that if the treatment of the granite materials at corners was to differ from the bull-nose rounded treatment along all other edges, Respondent should be held to have been under a duty to inform the future homeowner of all such excluded corner locations. No such duty is found to exist under all the circumstances revealed by the credible evidence presented at the hearing.[2] It was admitted that the subject of corner treatment for the bull-nose granite was never discussed during several visits by Complainant to the design center. In addition, none of several examples of granite countertop selections that were visible at the design center contained rounded bull-nose corners nor did any of the granite countertop installations in model homes at the subdivision, available for viewing by prospective homebuyers, contain any rounded corner features. On the contrary, all such installations, including the very desk at which selection arrangements were concluded by Complainant, reflected a bull-nose straight corner treatment.

CONCLUSIONS OF LAW

1. At these administrative hearings, the complaining party generally has the burden of proof, Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (1952) and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (1996). See also Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (1985); Utah Construction Company v. Berg, 68 Ariz. 285, 205 P. 2d 367, (1949); Rule R2-19-119, A.A.C. A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990)

2. The evidence of record as presented at the administrative hearing failed to sufficiently establish that Respondent has violated the provisions of A.R.S.§32-1154(A) (2),(7), (23) or (3); namely, Rule R4-9- 108, A.A.C., as charged in the within Citation.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Citation in Case Number M07-1210, together with the entire Complaint upon which it is based, be dismissed.

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: December 19, 2007. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington Street (6th Floor) Phoenix, AZ 85007 ----------------------- [1] The evidence revealed that “Standard Pacific” was the entity involved with the sale of the home that was to be and was constructed by Respondent as the project’s general contractor. [2] Notwithstanding the probable absence of an applicable duty upon a contractor/seller to inform purchasers of every aspect of what a selected upgrade option will or will not include, assuming a specific question about exclusions or inclusions has not been asked during the selection process, it is always beneficial and commendable for any licensed contractor to attempt to cause all information transmitted by its representatives to be as complete and as clear as possible to avoid any future potential misunderstandings or incorrect assumptions.

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