ALJDEC

97F-M1419-ROC · Registrar of Contractors · 1997-10-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 6, 1997

APPEARANCES: Sue Robinson, Complainant, and Brad Reed, Marketing Director and Sales Manager for Respondent.

ADMINISTRATIVE LAW JUDGE: Dennis L. Lusk _____________________________________________________________________

The above matter came on for hearing on October 6, 1997, at 9:00 a.m. Present were Sue Robinson, Complainant; Brad Reed, Marketing Director and Sales Manager for the Respondent; David Robinson, son of the Complainant; Telford Demoe, Customer Service for the Respondent; and Van Bagley, Inspector for the Registrar of Contractors. Sworn testimony was taken and exhibits were received in evidence.

FINDINGS OF FACT 1) The Complainant and Respondent agreed that four matters needed to be resolved, as follows: a) cracks and workmanship in tile and grout, b) workmanship of hose bib relocation, c) interior paint color, and d) placement of pocket door.

2) The grout lines adjacent to some tile were cracking and the Respondent agreed to make repairs. The credible evidence that the alignment of the tiles was accomplished in a workmanlike manner.

3) The hose bib was moved to a location chosen by the Complainant and the installation was performed in a workmanlike manner. However, the color of the copper pipe makes it stand out against the painted wall.

4) The credible evidence was that the color of the interior paint was slightly different than the color in the model. However the difference was marginal, no representations were made as to the color, the color is a standard color and not unattractive and no choices were offered for any homeowner in the subdivision in the interior colors. The paint was applied in a workmanlike manner.

5) The Complainant requested a change in the closet door in the master bedroom. The model and plans for the Complainant’s home called for a swinging door but the Complainant wanted a “pocket door.” The pocket door was to be the same size as the swinging door. The Respondent agreed.

6) In the model the swinging closet door opening was centered on the interior of the closet. The plans (which were not provided to the Complainant by Respondent ) and the diagram provided in the sales office similarly depicted the door opening being centered on the interior of the closet.

7) During construction Complainant noticed that the Respondent’s framer had centered the whole pocket door framework rather than centering the finished opening. This had the effect of having the right edge of the finished door opening centered on the closet rather than as depicted in the model and plans.

8) Complainant requested that Respondent center the opening rather than center the whole framework. Respondent contended then, and during the hearing that there was insufficient space to do so with the door opening either way. The credible evidence is that there was sufficient space on the wall to center the opening and to have the door open either way. The Respondent’s contention is specifically found to be against the weight of credible evidence.

9) Complainant, in an attempt to be reasonable, agreed to having the framework centered, if the Respondent would agree reverse the framework so that the wall space to the left of the finished closet opening would be longer rather than shorter than that in the model. Respondent agreed to talk to the framers about it. (Complainant contended at the hearing that she had in mind to put a particular piece of furniture on the wall to the left of the opening and needed the space. She never mentioned this to anyone prior to the hearing which casts some doubt on this notion.)

10) When Complainant returned to the home she determined that rather than reverse the framework in the opening, the framers had shifted it slightly to the right. This attempt at a corrective measure gave her slightly more room on the wall to the left but she contends that it is still insufficient.

11) Complainant objected to the Respondent regarding the change. Rather than work with the Complainant, the uncontroverted evidence was that Respondent told the Complainant to take the home “as is” or walk away from the deal and lose her deposit. The Respondent further locked her out of the home until closing, preventing her from making any further inspections.

CONCLUSIONS OF LAW

1) While there might have been some misalignment in the placement of the tile, it nevertheless met minimum workmanship standards. However, the grout cracks should be repaired and the Respondent agrees.

2) The relocation of the hose bib was done in a workmanlike manner; however painting the copper pipe to match the wall would have made the work less noticeable.

3) The weight of the credible evidence was that no interior color options were given to any buyer in the subdivision and that if the Complainant had requested a different color that request would have been denied.

4) The Complainant was never informed that if she chose a pocket door that the opening would not be centered on the interior of the closet. Therefore she had a right to rely on the representation in the model and on the diagram.

5) The Complainant reasonably agreed to an off center door if the opening was reversed and to do so at the time would have been relatively simple.

6) The Respondent’s ultimatum and locking out of the Complainant was not a reasonable reaction to the Complainant’s concerns.

7) The Respondent should paint the copper pipe which was the subject of Finding No. 3, supra, and Conclusion No. 2, supra, to match the exterior wall.

8) The Respondent should either reverse the pocket door framework or relocate the framework such that the door opening and respective wall space more closely resemble the model, plans and diagram. The Respondent shall elect between the

alternatives. (NOTE: The Respondent is responsible for no more that performing the work in a workmanlike manner. The evidence suggests that there will be difficulty in exactly matching the alignment, texture, color and fading of the walls and carpet.)

9) The record adequately established violations by Respondent of the provisions of A.R.S. 32-1154 (A) (7) and (3), including Rule R4-9-108.

RECOMMENDED ORDER

In view of the foregoing, it is recommended, that commencing on the effective date of the Registrar’s Order, (thirty-five days after the date of mailing by the Registrar) that the Class B License of Respondent be temporarily and actively suspended until the Registrar receives proof that Respondent has properly accomplished all corrective actions set forth in Conclusions of Law Nos. 1, 7 and 8, supra. It is further recommended that if Respondent accomplishes or causes the accomplishment of the above-described corrective work in a proper, workmanlike manner on or before this Order’s effective date, then the license suspension shall not be imposed and the entire Citation and Complaint in this case shall be closed. It is contemplated that the Complainant shall fully cooperate with the Respondent in arranging for the performance of the corrective work and providing access so that the repairs may be made in a timely fashion.

Dated this 23rd day of October, 1997.

______________________________________ Dennis L. Lusk Administrative Law Judge

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Original transmitted by mail this ____ day of ____________, 1997, to:

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

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

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826