ALJDEC

97F-M1276-ROC · Registrar of Contractors · 1997-11-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 14, 1997

APPEARANCES: Ronald and Paulette Morsovillo appeared on their own behalf as Complainants; Respondent was represented by John Nicholas, Vice President, Warranty and Jim Shipka, Senior Field Warranty Rep.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants Ronald and Paulette Morsovillo brought this action to resolve problems with the cabinets in their new home built by Respondent Beazer Homes Holdings Corp. in 1996. The parties presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT 1. When Respondent built Complainants’ home in 1996, subcontractor Adams Brothers Interiors and Cabinets (ABIC) installed the cabinets. Shortly after move-in, Complainants complained about several problems with the cabinets. These problems were warped doors, doors improperly hung, hinges that needed adjustment, poor finish, a marred wooden countertop, and a warped toe kick. Respondent, through ABIC, acknowledged most of the deficiencies and proceeded to correct them. 2. The corrections have taken many months and the cabinets are still not completely corrected. Part of the delay can be attributed to Complainants who, not without reason, began to lose confidence in Respondent and ABIC because of the continuing corrections that needed to be made and the poor workmanship that was exhibited with some of the corrections. However, Complainants acknowledge that Respondent and ABIC have tried very hard to correct the problems and satisfy Complainants. Also, most of the corrections have been accomplished at this point. 3. Registrar of Contractors Inspector Ron Lamp has made several site visits to Complainants’ home. In March 1997, he found that hinges needed adjustment and that the finish was not “uniform.” He issued a Corrective Work Order (CWO) to Respondent. In October 1997, just before the hearing, Lamp inspected the cabinets again and found that no further action was necessary except for repairing the warped toe kick. 4. At the hearing, Complainants provided evidence of several items that were not yet corrected.( These items are the warped toe kick, the improperly stained filler piece to the left of the refrigerator, the wooden countertop for the linen cabinet, the medicine cabinets installation and lacquering, lacquering in other areas where the finish is easily scratched off, and the rough finish on some of the doors. Respondent agreed that those items were not yet corrected. Respondent stated that it is willing to correct those items as soon as Complainants will allow access to the home. Again, Complainants are hesitant to continue working with ABIC. 5. The main point of contention at the hearing was Complainants’ assertion that the cabinets are substandard because there are variations in the stain color of the doors and frames. Complainants offered testimony and videotape showing the color of the cabinets. They testified that the cabinets, which are whitewashed oak, varied in shade from white in some areas to orange-tinged in other areas and pink-tinged in others. Complainants feel that this is an eyesore. 6. Three witnesses other than Complainants testified that although the stain color did vary slightly, it was within industry standards for whitewashed oak. Jim Shipka testified that the color variances were normal and within industry standards. Danny Silvas, ABIC’s Field Superintendant, testified that variations were typical for a whitewash stain because the oak used is red oak and white oak and because the stain is applied very lightly. The wood grain and color shows through more because of the light stain color and the thin coating in a whitewash stain method. Both of these witnesses testified credibly, however, they work for Respondent and the cabinet subcontractor and are not completely disinterested in the outcome of the case. 7. ROC Inspector Ron Lamp, the only witness that is not affiliated with either of the parties, testified that the color variations were within industry standards and were acceptable. He also testified that a whitewash finish is difficult to duplicate when doing touch-ups, as had been done to Complainants’ cabinets. Still, he felt that the variation in Complainants’ cabinet whitewash was accepteable. CONCLUSIONS OF LAW 1. Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated any provision of the statutes cited in the Citation and Complaint. Complainants have met that burden regarding those items that are listed above in Finding 4, but not regarding the stain shading variations. 2. The evidence supports a conclusion that Respondent has violated A.R.S. § 32-1154(A)(3), namely Arizona Administrative Code (A.A.C.) R4-9- 108, by failing to perform in a workmanlike manner with respect to the items in Finding 4. 3. The evidence also supports a conclusion that Respondent has violated A.R.S. § 32-1154(A)(23), by failing to correct the items in Finding 4 within a reasonable time after issuance of the CWO. 4. The evidence also supports a conclusion that Respondent has violated A.R.S. § 32-1154(A)(7), a wrongful act, in regards to the items in Finding 4. 5. The appropriate remedy in this case is to allow Respondent one more chance to correct the items in Finding 4. Although Complainants testified that they would rather not have ABIC back in their home, this tribunal feels that, given one more chance, Respondent and ABIC can get the job done. If they do not complete the items in Finding 4 promptly and correctly, Complainants may request a compliance hearing. RECOMMENDED ORDER IT IS RECOMMENDED that Respondent’s Class B license 114625 be suspended beginning on the effective date of the Registrar’s Order until Respondent has repaired or caused to be repaired, at Respondent’s expense, the items as described in Finding of Fact 4 above. IT IS FURTHER RECOMMENDED that if Respondent completes the above corrections on or before the effective date of the Registrar’s Order, the license suspension not take place and Citation and Complaint M97-1276 be closed.

Done this 7th day of November 1997.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Copy mailed this ___ day of November 1997, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Jennifer Varela 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ ( At the hearing, Complainants dropped part of their complaint that involved a “vibrating wall.” This item had been looked at by Lamp, who found that it was acceptable and did not include it in the CWO. Complainants initially disputed that finding, but verbally dropped their dispute on that item at the hearing.