ALJDEC

99F-C989254-BFS · Department of Building and Fire Safety · 1999-04-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 28, 1999 APPEARANCES: Jean Chance, Complainant, in her own behalf J. Denton Dobbins, Jr., Esq., on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact On January 22, 1998, the Complainant and Respondent entered a contract whereby the Complainant purchased a repossessed manufactured home from the Respondent. One of the conditions of the contract was that the cabinets and counters in the kitchen, bathrooms and laundry room would need to be refinished. The cabinets and counters are pressed wood with a veneer covering. The specific type of veneer was not identified. In June of 1998, the parties could not agree on how to address the matter of refinishing the cabinets. The Complainant allegedly wanted new cabinets and the Respondent wanted to resurface either by painting or putting on new laminate. The Complainant filed a complaint with the Department of Building and Fire Safety (Department). Dennis Butzen (Butzen) performed an inspection on December 11, 1998. On December 14, 1998, the Department issued a Verified Complaint and Sign Off (Verified Complaint) to the Respondent which required in relevant part that the Respondent refinish the cabinet doors and panels in the kitchen, cabinet doors in the laundry room, doors and panels in both bathrooms, kitchen countertop and replace the trim on the bathroom countertop. The Citation and Complaint (Citation) was issued on February 25, 1999. On or about March 4, 1999, the Respondent answered the Citation. The Notice of Hearing was issued on March 16, 1999. In the latter part of March, 1999, the Respondent sent a certified letter to the Complainant requesting that she select some dates when the corrective work could be done. The letter was returned because even though it was sent to the correct address, the Complainants pick up the mail from a post office box and do not check their mailbox. The letter was returned to the Respondent as “unclaimed”. Conclusions of Law The Citation and Complaint alleges violation of A.R.S.§41-2186.1, failure to comply with Articles two or four, .12, failure to respond relative to a verified complaint after notice, .19, failure to provide all agreed on goods or services, and .20, failure to install in a workmanlike manner. The evidence shows that that the contract and Verified Complaint require the items listed in paragraph six to be refinished or otherwise corrected. The only dispute between the parties was the manner in which the work was to be done. The Complainant relies on a definition of “refinish” which means to “resurface” or to give a new surface. She does not believe paint qualifies as a new surface but that a new surface would consist of a new wood like material. Another definition of “refinish” is to put a new finish on furniture, The American Heritage Dictionary, Second College Edition, Boston: Houghton Mifflin Company (1982). One of the definitions for the word “finish” is to give a surface a desired or particular texture, The American Heritage Dictionary. It is concluded that “refinish” does not mean the material immediately under the surface must of necessity be replaced. To the extent that the Complainant believes she is entitled to new cabinets, her definition of “refinish” is too limited. The Complainant testified that she had been told by cabinet shops and the Department’s inspector that the cabinets could not be covered with a new veneer or laminate as suggested by the Respondent. This hearsay is too unreliable to constitute satisfactory evidence. The Respondent testified that his contractor told him that the cabinets and other areas to be corrected could be corrected by either an antiquing process or by applying a new laminate. Although this hearsay is no more reliable than the Complainant’s, it is for the Respondent to ensure that the correction meets minimum acceptable standards under A.R.S. §41-2186.20 as well as the contract, and in so doing, show that the method is possible and appropriate for the type of wood product at issue. The Complainant has requested that the Respondent be given additional time to perform any corrective work because the Complainant will be out of town shortly after this hearing. No violations are found because the Complainant would not accept the offer to do the work which was required by the Verified Complaint, and also because of the confusion with the certified mail and the Complainant’s address. Even though no violations are found, the Respondent is still under a duty to provide those things which were specified in the contract. The Complainant is under an obligation to cooperate and make the premises available to the Respondent upon reasonable request and at reasonable hours. Recommended Order In view of the foregoing, it is recommended that within 30 days of the effective date of the Order entered in this matter, that the Respondent shall accomplish effective and appropriate remedial work on the items set forth in paragraph six of the Findings of Fact; It is further recommended that should the Respondent fail to accomplish the above described corrective work as set forth by the Order entered in this matter, then a new Citation and Complaint shall issue against the Respondent; It is further recommended that the Complainant provide reasonable access to the premises to allow for the corrective work required by any Order entered in this matter. Done this day, April 28, 1999.

______________________________________ ALLEN REED Administrative Law Judge

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

N. Eric Borg, Director Department of Building & Fire Safety ATTN: Michelle M. Castaneda E. Virginia, Suite 100 Phoenix, AZ 85004

By ___________________________

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