ALJDEC

99F-0184-ROC · Registrar of Contractors · 1999-05-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 5, 1999 APPEARANCES: Complainant appeared on his own behalf and Respondent was represented by his attorney, Joe Collins. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. On December 18, 1998 the Registrar of Contractors entered a default Decision and Order against Respondent based on its belief that Respondent had failed to file an answer to the Citation and Complaint within the time period required by the applicable provision of the State’s Contracting laws. Respondent petitioned for a rehearing and on February 11, 1999 the Registrar granted the Petition for rehearing, resulting in the scheduling of the instant hearing.

2. Pursuant to contract Complainant retained Respondent for the purpose of installing specified kitchen cabinetry in his new home. Complainant alleged certain deficiencies in the work performed or materials provided by Respondent and same are discussed in the finding below.

3. During the course of the instant hearing, Complainant averred that the instant hearing shall be limited to only the issue of the desk cabinet and that he was not pursuing any further relief on the other items set forth in his filed complaint.

4. The following salient facts were adduced at the hearing and are important to note:

a. Although Complainant’s new home came with kitchen cabinetry, he desired additional cabinets and thus, contracted with Respondent (who was not the builder of his home) to supply and install the desired additional cabinetry. b. It was undisputed that Complainant advised Respondent that he wanted a specified cabinet to be used as a desk. Moreover, evidence of record showed that the finished product, ultimately installed in Complainant’s home, looks like a desk. c. The applicable written contract, prepared by Respondent, shows that the desk in question was to be built at a height of 31 ½ inches. It was undisputed that the height of the finished desk installed in Complainant’s home is 32 ½ inches ( one inch higher than the specification set forth in the applicable contract). d. Complainant contends that the height of the desk is too high to be used as a desk. Furthermore, he indicates that due to the dimensions of the middle drawer and reveal on the desk that there is not enough space to place a chair under the desk. Nevertheless, in this regard Complainant entered into evidence a photograph which showed that the space under the desk was adequate to allow Complainant to place his legs under the desk even though the kitchen chair he was using may not have fit under the desk. e. Complainant testified that he has measured numerous desks and they are all in the range of 28 to 29 ½ inches in height. During the course of the hearing, the hearing tables were measured and same were shown to be approximately 28 ½ inches in height. f. Although Complainant does not dispute the fact that the applicable contract shows the height specification for the desk as 31 ½ inches, he testified that he had no idea, at the time of signing the contract, that the contract height specification was higher than the “normal” height of a desk. Furthermore, as aforementioned the as-built desk is 1 (one) inch higher in height than this contract specification and this deviation from Respondent’s specifications has served to further exasperate the problem. g. 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, within a stated period of time. The Agency directive specifically required that the “desk should be 29 inches high.” h. Evidence of record demonstrated that Respondent attempted on at least two occasions to perform repair work on the desk but that Complainant denied access for any remedial work that would not constitute a complete replacement of the desk. These facts militate against a finding that Respondent failed to respond in accordance with the terms of an Agency directive. i. Due to a transfer of the original assigned Registrar of Contractors’ inspector to the Prescott office of the Registrar, a new inspector was assigned to the case shortly before the date of the instant hearing. The new inspector conducted a pre-hearing inspection at Complainant’s home and specifically reviewed the issue of the desk. j. The new inspector appeared at the instant hearing and testified to the fact that he had an extensive background in carpentry. This inspector testified that the typical (standard and accepted) height for a desk was from 28 to 29 inches and that the height of the desk at issue herein is more representative of the height used for a vanity cabinet. He further indicated that in his opinion it is the responsibility of a contractor to advise a homeowner of what the typical height should be for a desk and that anything higher than 29 inches would not represent a typical desk height. k. Respondent contends that his supplier always builds desks at the height of 31½ inches and that he has installed many of these desks in other homes. Nevertheless, he did admit that others have complained that the desk height was too high.

5. This Tribunal does not expect the average homeowner to have any knowledge regarding the standard height of a desk. However, this is something that a contractor should know. If the customer is seeking a desk and the contractor is supplying one that is greater than the standard height, then it should be incumbent on the contractor to advise the customer of this situation, in order that the customer may make a voluntary and knowing decision regarding whether or not he wishes to have a desk that is greater in height than the standard desk height.

6. It is important to note that not only did Respondent not advise Complainant that he would be receiving a desk that is greater in height than a typical desk in the marketplace but moreover, Respondent installed a desk that is one (1) inch higher than what is specified on the plan, thereby further aggravating the situation. The desk in question is found to be not fit for its intended purpose and, as such, constitutes not only a wrongful act within the meaning of the applicable charged section of the State’s Contracting laws but also reflects an unworkmanlike result. Thus, under the particular facts and circumstances presented herein Complainant should be entitled to have a desk that is only a maximum of 29 inches high, notwithstanding a contract specification to the contrary.

7. While it is understandable that Complainant would desire a new desk and not one that has been repaired, the Registrar of Contractors typically allows contractors to perform repair work in order to bring aspects of construction within appropriate standards for good and proper workmanship. Thus, it was improper for Complainant to have denied access to allow Respondent to perform remedial work of his choice on the desk. Nevertheless, Complainant’s prior denial of access should not be deemed to constitute a full and final waiver of his right to have Respondent perform remedial work on the desk in order to make same fit for its intended purpose. In this regard any continued denial of access by Complainant to allow Respondent to perform remedial work of his choice on the desk shall be deemed to be tantamount to Respondent’s compliance with any condition that is contained in the instant Order.

8. Notwithstanding the foregoing, Respondent is on notice that any election on his part to perform a less expensive or less extensive manner of remedial work than a full replacement will be at his peril to achieve results which are effective, adequate and otherwise acceptable.

9. There was no evidence presented to show that any workmanship standard required that a chair must fit underneath a desk. Furthermore, it was shown that a person’s legs could fit under the desk while seated at a chair. Thus, the evidence of record was inadequate to support any finding of a workmanship deficiency regarding the space under the desk.

9. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed the absence of any prior adverse Orders on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be very good and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. Respondent violated the provisions of A.R.S. § 32-1154A (7), (2), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class B license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has accomplished appropriate and effective remedial work to bring the height of the desk within the 28 to 29 inch range. Any unreasonable denial of access by Complainant to allow Respondent an opportunity to perform the required remedial work shall be deemed to be tantamount to Respondent’s compliance with this condition. It is further recommended that if Respondent accomplishes the above- described corrective work or is denied access for said purpose on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and this Citation, together with the Complaint upon which it is based, shall be closed .

Done this day, May 10, 1999

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Registrar of Contractors Michael P. Goldwater 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Joyce Armijo

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826