ALJDEC

00F-L0025-ROC · Registrar of Contractors · 2000-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Thursday, April 13th, 2000; 1:30 p.m. APPEARANCES: The Complainant, Ms. Beulah Anderson, represented herself. The Respondent, H P Construction, Inc., was represented by Mr. Wade M. Burgeson, attorney-at-law. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

This matter was brought on for administrative hearing April 13th, 2000. Testimony was taken and other evidence admitted to record, and, based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made. FINDINGS OF FACT 1. The Respondent, H P Construction, Inc., is, and during all times material hereto was, a contractor licensed by and doing business in the state of Arizona. Respondent holds Class B License number 131635. Respondent, for the purpose of discussion of this case in this decision and order means Mr. Richard L. Herrin, co-owner of the company, and the man who dealt with Complainant for the Respondent. 2. Complainant, Ms. Beulah Anderson, is a homeowner in Golden Shores, Arizona. She contracted with the Respondent on or about May 23rd, 1999, for the Respondent to construct a garage on her property. The contract’s price term was $21,700.00, and to date Complainant has paid Respondent $10,000.00 on the contract. 3. Complainant’s lot at one side includes a slope that steeply rises several feet, and crosses her and her neighbor’s common property line. Her neighbor resides next to and above her lot. 4. Complainant contracted separately from the Respondent with an individual by the name of Jim King, for Mr. King to perform the excavation preparatory to the garage’s construction. During his excavation work, Mr. King noticed the way the land rose as it went from Complainant’s property to that of her neighbor. He advised her at that time of the likelihood that the construction of a garage where the contract called for it to be situated would necessitate the building of a retaining wall. The necessity would be because the excavation required to place the garage where the contract called for it to be placed would undermine the stability of the ground rising onto the neighbor’s property. He mentioned a block wall as an example. Complainant responded that she would have a wall if necessary, but it would be a timber or some sort of wall other than a block wall. Complainant helped Mr. King measure for the excavation, and he excavated under her direction. 5. Mohave County Building Department’s Plans Examiner, Mr. David C. Thomas, on June 15th, 1999, gave his preliminary approval to the plans. But Mr. Thomas’s approval of the plans was based on his view of the plans, and he had not gone to the job-site. 6. When Mohave County Building Inspector Mr. Cole went to the job-site on June 4th, 1999, he informed Ms. Anderson that she would have to include engineered plans for a retaining wall before the construction project would be approved. At that point in time Mr. King still had not yet quite finished with his excavation work, and Respondent had not begun construction. Complainant at that point mentioned the possibility of a lattice wall. 7. Mohave County Building Inspectors again visited the site on June 22nd, 1999. They included Mr. Robert Hamon, Senior Building Inspector, and Mr. Cole. By this time the Respondent had begun the early phases of construction. These officials ordered the work halted because no proper provisions for a retaining wall had been made. In Mr. Hamon’s view, a retaining wall must be built in order to protect the adjoining landowner’s property. Had Respondent continued to construct the garage in defiance of the local building officials’ order, he would have been cited by them. 8. Respondent was out of town on June 25th, 1999, when Complainant telephoned him to tell him to stop working on the project. She was by that time adamantly opposed to a retaining wall. 9. On July 14th, 1999, Mr. Louis R. Pechan, Mohave County Chief Building Official, and Mr. Hamon, met with Complainant and Respondent to discuss possible options. One option was that the site for the garage be changed to a point on the lot where it would not adversely affect the integrity of the slope. Complainant took no decision at that time. Mr. Pechan continued to make it known to the Complainant that in any event no garage could be constructed at the presently considered site without there first being approved engineered plans for a retaining wall. 10. Complainant continually refused to consent to a retaining wall, balking at the additional cost it would entail, and never authorized Respondent to seek engineered plans for one. The local officials required as much, and therefore Respondent was stymied. 11. In an effort to make other arrangements, Respondent submitted plans for the garage to be built at a different location on the lot. But by moving the location the garage would then be built on an area making the garage a load-bearing garage. That would mean extra costs for the garage such as additional plumbing, and footers. The new plans resulted in an increased cost of the project, to the amount of approximately $5,000. Respondent submitted to Complainant sometime in the latter part of July, the new plans and a new contract proposal. Complainant rejected the new proposal based on the additional cost. Respondent last had contact with the Complainant July 29th, 1999. 12. Complainant filed this complaint with the Registrar of Contractors on August 25th, 1999. Registrar of Contractor’s Inspector Mr. Cliff Corlett conducted a job-site inspection on September 28th, 1999. Complainant and Respondent both were present. Mr. Corlett testified at the hearing that since the garage had not been built there was little, if anything, for him to inspect. He did issue a Corrective Work Order on that same day, directing the Respondent to “Construct the garage per contract or otherwise resolve this matter.” Inspector Corlett allowed Respondent 60 calendar days to comply with the CWO. 13. Respondent could not “construct the garage per contract,” owing to complainant’s frustration of that effort, and even before the CWO was issued he had attempted to “otherwise resolve this matter.” Having received $10,000.00 from Complainant, and having performed early stages of the project, Respondent prepared an itemized list of his expenses to date, totaled their amount, and subtracted that amount from $10,000.00. This list and computations were made a part of the record, appear credible, and were proved by a preponderance of evidence. Respondent attempted to tender a cashier’s check dated September 9th, 1999, and made payable to Complainant in the amount of $7,548.34. Respondent mailed the check to Complainant via United States Postal Service Registered mail number R [number redacted], on September 10th, 1999. The U.S.P.S. made two attempts to deliver the check to Complainant, but on both occasions she was not home when delivery was attempted. Respondent next attempted to have the Mohave County Constable serve the check on Complainant. The constable attempted to deliver the check to Complainant on October 1st, 1999. Complainant was not home. The constable finally was able to reach Complainant by phone, and when he did he stated his business. Complainant refused to accept the check. The constable, being unable to serve the check, returned it to the Respondent. 14. No evidence shows that any of the early stages of the work Respondent did was defective in any way. The slope, as some evidence seems to indicate, is now showing signs of instability, but Respondent performed no excavation of the slope (Respondent removed one bucket-full of dirt with a backhoe for sampling). The slope was excavated by Mr. King who contracted separately with Complainant, and he excavated with the assumption that a retaining wall would be constructed after he had finished. Respondent’s performance under the contract was frustrated by the Complainant. Respondent’s revised proposal for the garage at a different location was rejected by the Complainant. In attempting to refund Complainant her money and call it quits, Respondent was frustrated by the Complainant. At that point the Respondent was fresh out of options. CONCLUSIONS OF LAW 15. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S. §41-1092. 16. The Respondent is charged in the Citation and Complaint with possible violations of A.R.S. §32-1154.A.1., 7., 23., and 3. 17. A.R.S. §32-1154.A.1., prohibits a licensed contractor from abandoning a contract or refusing to perform after submitting a bid on work without legal excuse for the abandonment or refusal. Respondent stopped working on Complainant’s project because she refused to proceed with the retaining wall, and ordered Respondent off the project. Had Respondent continued the project he would have been in trouble with the local building authorities. Respondent’s legal excuse is that Complainant completely frustrated his performance of the contract. Respondent did not violate this section. 18. A.R.S. §32-1154.A.23. prohibits a licensed contractor from failing to take appropriate corrective action to comply with the contractor laws without valid justification within a reasonable period of time after having received a written directive from the Registrar. The only written directive from the Registrar in this case is Inspector Corlett’s CWO, and the overwhelming weight of evidence is that Respondent would have been happy to comply with that order, and made every effort humanly possible to comply with that order, but could not comply with that order because of Complainant’s actions. Respondent did not violate this section. 19. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any administrative rule adopted by the Registrar, and in this citation and complaint the rule cite is A.A.C. R4-9-108, Workmanship Standards. As Inspector Corlett testified, when he went to his job-site inspection there was no work of the Respondent do be inspected; thus, no CWO was issued relative to workmanship standards. No evidence showed any violation of workmanship standards by Respondent. Respondent has not violated this section or rule. 20. A.R.S. §32-1154.A.7. prohibits a licensed contractor from any wrongful or fraudulent act as a contractor that results in another person’s substantial injury. There is no evidence of any wrongful or fraudulent conduct on the part of Respondent. Respondent has tendered to her the money she is owed, and she has refused it, and continues to refuse it. She was presented her options under the local building codes, and has refused those as well. Respondent has not violated this section. RECOMMENDED ORDER Wherefore, it is hereby recommended that Citation and Complaint number L00-0025, together with the complaint on which it is based, be dismissed. Done this day, April 26th, 2000.

________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of April, 2000, 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 100 North Stone Avenue, Suite 704 Tucson, Arizona 85701 (520) 628-5488