ALJDEC

98F-1260-ROC · Registrar of Contractors · 1998-09-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 3, 1998 APPEARANCES: Dan Drew, Complainant, in his own behalf Dick King, Respondent, in his own behalf ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

FINDINGS OF FACT In May, 1997, the parties entered into a contract whereby the Respondent was to manufacture and install custom kitchen cabinets at the Complainant’s home. The amount of the contract was $7,659.00. When taking the original measurements for the cabinets, the Respondent failed to note that the kitchen window was not centered in the kitchen. The window is approximately six inches off center. The kitchen sink was to be centered with the kitchen window. The initial drawings as submitted and approved by the Complainant had a 13 ½ inch wide cabinet on the far right side which was to contain a sliding waste basket. These drawings were based on the incorrect measurements. Some minor modifications were made to the plans with the approval of the Complainant’s wife. After some delays, the cabinets were installed in approximately September, 1997. The kitchen sink was centered with the kitchen window. Because the kitchen window was not centered as had been anticipated, the cabinet which was to have been ½ inches for the waste basket, could only be built to a width of 10 ½ inches. The cabinet cannot be extended because it abuts against the kitchen wall. There were some other projects that the parties had tentatively agreed upon as well as some corrective work which was to be done on the cabinets. The Respondent who had been paid, agreed to return to do this work. The Respondent did not return to work in a timely manner and the Complainant had difficulty in contacting the Respondent. The Complainant’s wife finally contacted the Respondent in November, 1997, and the discussion took on an acrimonious tone because the Respondent stated he would not be doing any work at the Complainant’s home until after Thanksgiving. The complaint was filed with the Registrar of Contractors (Registrar) in late November, 1997. Inspector Cliff Frandsen (Frandsen) of the Registrar’s Office performed an inspection and issued a Corrective Work Order (CWO) on February 2, 1998. Six areas were required to be corrected by the Respondent. Five of the six items were corrected at the end of March, 1998. The only item which was not corrected was the waste basket which was to have been resolved by the parties. The right hand cabinet is too small for a sliding waste basket. Offers to place a non sliding wastebasket under the sink or a sliding basket in a left side cabinet were declined by the Complainant who believes he is entitled to what he bargained for. CONCLUSIONS OF LAW The Citation and Complaint allege violation of A.R.S. §32-1154(A)(3), violation of any rule/A.A.C. R4-9-108 workmanship standards, (A)(7), a wrongful or fraudulent act, and (A)(23) failure to take appropriate corrective action. The violation of A.R.S. §32-1154(A)(3)/A.A.C. R4-9-108 is found based on the Respondent making the improper measurements, resulting in incorrect plans and failing to note the error until it was too late to correct the error. In view of the custom nature and cost of this work, the Complainant had a right to expect better. After due consideration, a violation is also found of (A)(7), wrongful conduct only. This is because the evidence shows that in September, 1997, the Respondent gave some assurance that he would return shortly to do necessary corrective work. The Complainant had paid the Respondent who failed to timely return to do the work. It was not until November that the Complainant was able to contact the Respondent who then stated the work could not be done until after Thanksgiving. Despite the fact that the Complainant’s wife may have used intemperate language with the Respondent, the Respondent had been fully paid, had given his assurance he would do corrective work and then failed to timely perform. Under this circumstance, the Complainant was understandably upset. The Respondent’s failure to do the corrective work over six months after the job was done and only after being instructed to do so by Frandsen adds to the violation. It appears that the Respondent was using the phone conversation with the Complainant’s wife as an excuse for not doing the corrective work. The Respondent did not need the CWO to know he was obligated to do the work at the Complainant’s home. There is no violation of (A)(23) because the Respondent’s attempt to resolve the matter was not accepted by the Complainant and the Complainant offered no reasonable means of resolution. The Complainant urged that the appropriate damages in this case would be the amount it would cost to construct the cabinet so that the waste basket could be placed as designed. No evidence was presented of this cost, and this hearing is not the appropriate forum to determine such damages, which even if properly considered restitution, have a potential for being highly speculative. RECOMMENDED ORDER In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter that the Respondent’s Class C-30 license be placed on probation for period of sixty (60) days. Done this day, September 10, 1998.

_________________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of September, 1998, to:

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

By _______________________________

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