ALJDEC

98F-2306-ROC · Registrar of Contractors · 1998-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 13, 1998 APPEARANCES: Complainant appeared through its trustee, Gregory Edin, and Respondent was represented by its attorney, Stephen Richman. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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. Pursuant to contract, Complainant purchased new home construction from Respondent. At the outset of the scheduled hearing, Complainant averred that the only issue to be determined by the instant hearing would be the issue of the color of the cabinetry installed in the home. 2. The following salient facts were adduced at the hearing and are important to note: a. On or about February 1997, Complainant closed escrow on the purchase of the new home from Respondent. b. As part of the new home construction project, Respondent provided wood cabinets which were constructed out of a combination of pink birch wood and alder wood. It was shown that it is normal within the industry to combine these two woods for cabinets, such as those installed in Complainant’s home. There are several understandable reasons why these two woods are combined in cabinetry construction including, but not limited to, the fact that they are similar in coloring and grain. c. Complainant selected a semi-transparent white whitewash finish to be applied to the cabinets. The cabinets in question are installed in several areas throughout the home. d. Complainant contends that there is a lack of uniformity in the color hue of the cabinetry throughout the home and that said problem was visible from the day that occupancy was commenced. Notwithstanding Complainant’s contention that the problem was visible from the first day of occupancy, evidence of record demonstrated that said problem was not enumerated on the signed “walk-through” document from January and February 1997. Moreover, it was shown that it was not until October 1997 that Complainant first placed the cabinet complaint in writing, via a letter mailed to Respondent. e. When Complainant received no satisfaction from Respondent referable to the issue of the color of the cabinets, Complainant ultimately filed the instant complaint with the Registrar of Contractors in March 1998. f. Notice of official records of the Registrar of Contractors reveals that Complainant also filed a separate complaint on the same cabinet issues against Respondent’s cabinet subcontractor, Cholla Custom Cabinets ( “Cholla” ). 3. Although there appears to be a degree of variation in color hue in what the eye can see when closely examining and comparing selected sections of the cabinetry in Complainant’s home, the evidence of record was sufficient to support a finding that despite said variation, same is not readily noticeable unless closely examined. 4. Along with testimony from the respective parties and their witnesses, evidence entered into the instant record also consisted of a report from K.W. Lunsford (hereinafter “Lunsford”), a paint and staining expert, regarding his inspection of the cabinets and a testing report from Amalgamated Technologies, Inc. (hereinafter “Amalgamated”), a testing laboratory. The findings of Lunsford and Amalgamated are summarized as follows: a. Lunsford’s findings showed that the there was no defect in the finish applied to the cabinets but that any perceived variation in color hue was due to “normal bleaching of the tannins from within the wood when exposed to ultra-violet light. It is not a finish breakdown.” Lunsford further goes on in his report to state that “the ultra violet problem in Arizona is common knowledge and well documented.” b. Amalgamated concluded, from the tests that it performed on similar woods to those used in Complainant’s cabinets and the same finish material utilized on Complainant’s cabinets, that the wood changed color when exposed to the effects of sunlight but that the finish itself did not change color from exposure to sunlight. 5. The cabinets in question are exposed to sunlight coming in from the windows in Complainant’s home. It is important to emphasize that the finish in question is a very light semi-transparent material which would allow the natural color of the wood to show through more than a darker finish or more pigmented stain. 6. It is important to note that Complainant presented three samples of cabinets at the hearing that he believed varied in color hue. The instant record showed that these cabinets were all located in areas of the home wherein the cabinets were exposed to significant amounts of sunlight due to the location of the windows and the fact that the windows in question did not have any window coverings such as window blinds or drapes. 7. The weight of the evidence of record supports a finding that the variation in the color hue in Complainant’s cabinets is not due not to any failure of the finish applied to said cabinets but to changes in the color of the wood itself due to exposure to sunlight. The instant record established that when a natural material such as wood is exposed to ultra- violet rays from sunlight, the tannins in said natural product will change colors and this is a normal and expected characteristic of wood. 8. Although Complainant contends that he paid for an upgrade for “low e” windows which were represented by Respondent to reduce the effects of ultra-violet light and heat coming through the windows, the record presented herein was not adequate to support any finding that Respondent represented that these upgraded windows would prevent the effects of sunlight changing the color of wood materials installed in the home. 9. A jobsite inspection by the appointed inspector for the Registrar of Contractors was held, pursuant to which that Agency sent Respondent a letter directing it to accomplish specified remedial work on the cabinet color issue within a stated period of time. Notwithstanding the terms of said Agency directive, Respondent failed to comply with same. 10. It is very important to note that the inspector for the Registrar of Contractors received the aforementioned report from Amalgamated subsequent to issuance of the above-described Agency directive. At the instant hearing, the inspector testified that he had, in fact, changed his mind regarding the directive that Respondent should correct the color hue condition of the cabinetry. Thus, under these circumstances there is no finding of a failure to comply with an Agency directive regarding the cabinet issue.

11. The condition of the slight color variation in the whitewashed cabinetry in Complainant’s home is found to be no different than when furniture or pictures within a home are exposed to the effects of the intense Arizona sun. If one allows the interior portions of his home to be exposed to sunlight there will be color changes or fading and this is a matter that may properly be viewed as not only common knowledge but something that is beyond the control of a contractor. The instant record is inadequate to support any findings of contracting law violations by Respondent.

CONCLUSIONS OF LAW

1. The issue of implied warranty should not be stretched to the point that a contractor must warrant that materials installed in the interior portion of the home will not be subject to natural and expected color changes and/or fading due to exposure to the rays of the sun. This concept is particularly applicable in situations, such as in the instant case (i.e. wood cabinets stained with a semi-transparent white whitewash type finish that are exposed to windows without blinds or drapes) wherein it is beyond the control of the contractor to protect his materials from the effects of sunlight.

2. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed.

Done this day, October 20, 1998.

_________________________________ MARK A. SILVER Administrative Law Judge

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

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

By _______________________________ -----------------------

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