ALJDEC

98F-2743-ROC · Registrar of Contractors · 1999-01-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 5, 1999 APPEARANCES: Karen Sember, Complainant, in her own behalf Russel Riggs, Attorney at Law, on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________

Findings Of Fact The Complainants purchased their home from the Respondent builder in October, 1997, and moved into the home in November, 1997. A number of areas of concern were raised by the Complainants and made known to the Respondent. The only issue remaining for the purposes of this hearing is the double front doors. The two front doors are an upgrade, oak, and cost approximately $3,000.00. Initially, a piece of trim was broken on one of the original doors and a new piece was put on the door. The finish which was put on the trim apparently adhered to portions of, but did not match the rest of the door. Attempts to correct this condition were unsatisfactory to the Complainants and resulted in the Respondent providing a new door (right side looking out from the interior). The finish of the replacement door did not match the other door to the satisfaction of the Complainants and the original door was returned. That door had been stored by the Respondent and was stripped and refinished upon reinstallation. The original door as refinished also did not match the other door. Efforts to get the doors to match were unsuccessful. Problems in the color variation were satisfactorily corrected but the finish on the right side door was high gloss and the left door had a satin finish. The Complainants filed their complaint with the Registrar of Contractors (Registrar) on July 7, 1998. Inspector Dragoon (Dragoon) of the Registrar’s Office performed an inspection relative to the complaint and issued a Corrective Work Order (CWO) on July 18, 1998. Dragoon determined the exterior of the doors was within minimum standards and required no corrective work. With respect to the interior of the doors, Dragoon asserted: “The finish on the interior doors are of a different gloss. This is not acceptable. The Contractor is to determine the cause, correct by appropriate means and restore the doors to their original condition.”

The most competent evidence shows that the original condition of the doors was a satin finish. On July 27, 1998, Dahl’s Painting, the subcontractor, went to the Complainants’ home to correct the door by putting a high gloss finish on the left door. This was not acceptable to the Complainant who wanted the right door to match the satin finish of the left door. The corrective work was not done. The Complainant took the position that she wanted the doors replaced. The Respondent declined to do this. In December 1998, the Respondent offered to replace the doors as part of a mutual agreement which included matters not at issue in this hearing. The Complainant refused this offer. A pre-hearing inspection by Dragoon showed the condition of the door was unchanged since the CWO was issued. Upon close examination of the photographic evidence (exhibit 2), some color or gloss variation between the doors can be seen. The testimony of the Complainant and Dragoon is sufficient to find that this variation is excessive. Dragoon testified credibly that the doors could be corrected. Conclusions Of Law The Citation and Complaint allege violation of A.R.S. §32-1154(A)(3) violation of any rule, specifically A.A.C. R4-9-108, workmanship standards, (7) wrongful or fraudulent conduct, and (23) failure to take appropriate corrective action. A general contractor may be held liable for the violations of the subcontractor for which the general contractor is responsible or over which the general contractor has authority. The evidence shows repeated efforts by subcontractor on behalf of the Respondent to correct the door prior to the inspection by Dragoon. The testimony of Dragoon and the evidence in its entirety shows that the efforts regarding the front doors up to the time of the inspection were unsatisfactory and did not meet minimum workmanship standards. The Respondent urges that since the Complainant did not allow the Respondent to comply with the CWO (the Complainant wanted completely new doors), there should not be a violation of A.R.S. §32-1154(A)(3)/AAC R4-9- 108. Under certain circumstances this argument may be accepted. With respect to matters before the Registrar, the practice appears to be that a contractor is allowed at least one good faith attempt to correct work which does not meet the minimum standard. This understanding is based on the interpretation and application of the law to industry practice rather than being explicitly set forth by statute. There is nothing in the statutes which provides that a contractor is excused from meeting minimum standards in the first instance or can have multiple opportunities to correct defects. In any event, the evidence in this case shows multiple unsuccessful efforts to bring the door to minimum standards prior to the inspection by Dragoon. The effort to correct after the CWO was issued was inadequate because it was incorrectly interpreted by the person who was to do the correction. The right side door was to be corrected to have a satin finish rather than the high gloss finish. The Respondent’s attempt to correct the door would have put a high gloss finish on the door which had the satin finish. Whether this was misunderstanding or mistake, it is attributable to the Respondent. The Complainant is entitled to receive what was paid for and to receive it in a reasonable period of time. The problem with the doors has been going on for over a year. The fact that these are custom doors which cost $3,000.00 merits serious consideration by the Respondent when determining the acceptable standard of workmanship for these doors. After all that has transpired, the Complainants’ lack of confidence in the Respondent’s ability to properly correct is understandable and although the facts of the case provide a defense to violations of (A)(7) and (A)(23), the same facts sustain a violation of A.R.S. §32-1154(A)(3)/AAC R4-9-108. The Respondent should be granted one final opportunity to render acceptable performance. Recommended Order In view of the foregoing it is recommended commencing the effective date of the Order entered in this matter that the Class B license of the Respondent shall be suspended until the Registrar of Contractors receives written proof that the Respondent has accomplished appropriate and effective remedial work on the front doors or if said remedial work cannot be satisfactorily accomplished, has replaced the front doors with doors of equal or greater quality; It is further recommended that if the Respondent accomplishes the above described corrective work on or before the effective date of the Order entered in this matter then the aforementioned suspension shall not take place and the Citation and Complaint upon which it is based shall be closed; It is further recommended that the Complainants make the premises reasonably available in order that remedial work may be timely accomplished. Done this day, January 7, 1999.

_________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of January, 1999, 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