ALJDEC

99F-1584-ROC · Registrar of Contractors · 1999-07-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 1, 1999 APPEARANCES: Dean Brening, Complainant, in his own behalf Bill Pope, Vice President, on behalf of the corporate Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact The Respondent manufactures, distributes and installs custom built bathroom accessories. The Complainant wanted a custom bathtub to match his sink. The Complainant ordered a white on white cultured marble shower and bathtub from the Respondent in September, 1998. The total cost was approximately $2,000.00. The bathtub is made with a mix of resin and limestone, and a polyester gel coat. The bathtub was installed on October 19, 1998. Shortly after installation, the Complainant noted what appeared to be several, up to 10, brush hairs or bristles imbedded in the finish of the tub. The Complainant contacted the Respondent who sent someone to correct the problem using a spray and buff method. After completing the corrective work, the Complainant noted two whitish spots where the corrective work had been done. The Respondent’s president, Lee Pope, informed the Complainant the repair brought the bathtub within industry standards. The Complainant filed his complaint with the Registrar of Contractors (Registrar) on November 19 ,1998. On January 7, 1999, Inspector John Ratcliff (Ratcliff), of the Registrar’s Office, performed an inspection of the tub and as a consequence of the inspection, issued a Corrective Work Order (CWO), on January 15, 1999. The CWO required the Respondent to correct the brush hair problem and the marks left from the prior corrective work. The Respondent performed additional corrective work and informed Ratcliff. The Complainant was not satisfied with the repairs and Ratcliff performed another inspection on February 3, 1999. Ratcliff found that although the repairs were not perfect, they met industry standards. According to Ratcliff, a minuscule piece of hair is still observable and the areas which were repaired can be seen from certain positions under certain lighting conditions. These repaired areas are about two inches in diameter and appear to blend in with the marbleized effect. The Complainant testified the area of the repair is always visible and it is more or less obvious depending on the lighting. According to the Complainant, the repair is more apparent when the lighting is dim. Photographic evidence shows the areas are slightly visible under certain lighting conditions (exhibit 1 and possibly 2) but do not appear visible under different lighting conditions (exhibit 3). Conclusions of Law The allegations of the Citation and Complaint concern A.R.S.§2- 1154(A)(3), violation of any rule, specifically A.A.C. R4-9-108, workmanship standards, and A.R.S. §32-1154(A)(7), wrongful or fraudulent acts resulting in substantial injury. Generally when a consumer purchases a new product, he or she is entitled to receive a new product. However, a new product does not necessarily equate to a perfect product, and the law allows that minor defects in new products which are correctable, may be corrected without breaching the contract. The issue is essentially one of fact and whether the defect is so substantial as to significantly impair or otherwise diminish the value, including aesthetic value, of the product. The Complainant’s concerns and aggravation regarding the areas which have been corrected, are understandable, especially in light of the Complainant’s heightened aesthetic sense which is a necessary part of his own occupation (customized auto body and paint work). Generally, and specifically with respect to the instant case, in the absence of a clear or objective standard, reasonableness is the criteria for making a determination of whether the defect constitutes a substantial breach. The Administrative Law Judge is bound by the evidence and based on the evidence in its entirety, including the testimony of Ratcliff and the photographic evidence, it cannot be concluded that the areas complained of are obviously unacceptable or otherwise fail to meet an industry standard. Recommended Order In view of the foregoing, it is recommended that the Citation and Complaint upon which it is based be dismissed. Done this day, July 2, 1999.

_______________________________ ALLEN REED Administrative Law Judge

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

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

By _______________________________

-----------------------

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