ALJDEC

00F-Y0182-ROC · Registrar of Contractors · 2000-11-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 14, 2000 APPEARANCES: James Tilson, Esq. represented Complainant Charles Ankney. Respondent Discount Awning & Construction Co. appeared through its owner and qualifying party, Walter Arthur Bickford. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The issue presented by this matter is whether Respondent Discount Awning & Construction Co. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Respondent Walter Arthur Bickford, doing business as Discount Awning & Construction Co. (“Discount”), is the holder of a Class C-61 license (No. 087913) issued by the Registrar of Contractors (“ROC”).

In March, 1998, Complainant Charles Ankney purchased a “park model” recreational vehicle (the “Home”) from Southwest R.V. Sales (“Southwest”) in Yuma, Arizona. Southwest placed the Home on Mr. Ankney’s property at 13335 East 54th Drive in Yuma. Mr. Ankney’s purchase price included an 8’ x 35’ wood deck and a 9’ x 35’ awning. Southwest hired Discount to construct Mr. Ankney’s deck and awning. Discount constructed the deck and awning, but failed to first obtain a building permit from Yuma County (sometimes referred to herein as the “County”). Discount acknowledged that it should have obtained the building permit prior to commencing construction.[1] Yuma County’s building code required that the Home, with deck and awning attached, be set not less than ten feet from Mr. Ankney’s property line. The weight of the evidence established that the Home was in fact set eight feet two inches from Mr. Ankney’s property line, and thus violated the County’s building code. If Discount had submitted to the County a building permit application with an associated site plan as it should have, it would have detected this violation prior to building the deck and awning. Approximately six months after the setting of the Home and Discount’s construction of Mr. Ankney’s deck and awning, Mr. Ankney had a second structure, a 22’ x 36’ garage (the “Garage”), constructed on his property. Mr. Ankney contracted with Spartan Homes & Construction, Inc. (“Spartan”) to build the Garage. Spartan applied for and received a building permit for the Garage from the County. However, when Spartan submitted its site plan for approval, it neglected to include in that site plan any reference to the Home’s location. Thus, at the time Yuma County issued Spartan’s building permit, it was not aware that the Home had been placed on Mr. Ankney’s property, nor that the Home’s placement was in violation of the County’s minimum setback requirements. It is possible that if Spartan had included a drawing of the Home on its site plan, Yuma County’s permitting authorities would have discovered that the Home had been improperly set too close to Mr. Ankney’s property line. Some time after Spartan completed construction of the Garage, Mr. Ankney converted the Garage into a habitable structure by replacing the garage door with a man door and adding a window. Mr. Ankney did not obtain permission from Yuma County to make this conversion. In approximately September, 1999, a Yuma County inspector cited Mr. Ankney for not having obtained a permit to convert the Garage into a habitable structure. Thereafter, Mr. Ankney contacted Specialty Awnings and Sheds (“Specialty”) to obtain a permit for the conversion. When Specialty applied for the Garage permit, it submitted a complete site plan that, according to Mr. Ankney, revealed for the first time that the Home had been set too close to the property line (i.e., eight feet two inches instead of ten feet). As a result of this discrepancy, Yuma County refused to issue the permit for the Garage until the Home was moved. Mr. Ankney also learned for the first time that Discount had failed to obtain a permit when it installed the deck and awning. On Friday, April 28, 2000, Mr. Ankney contacted Discount to advise that Discount had failed to obtain the permit. Discount agreed that it would rectify its omission by obtaining the required permit not later than Monday, May 1, 2000. As of Friday, May 5, 2000, Discount had not obtained the permit. That day, Mr. Ankney filed a complaint against Discount with the ROC that gave rise to the instant proceeding. After Mr. Ankney filed the ROC complaint, Mr. Bickford measured the Ankney property in order to prepare a site plan for submission to the County in connection with the promised permit application. The Administrative Law Judge finds, on the weight of the evidence, a direct cause and effect relationship between Mr. Ankney’s filing of the complaint and Discount’s decision to prepare the permit application, i.e., the Administrative Law Judge finds that Discount did not take any steps to obtain the permit until after it was forced to do so by the pendency of Mr. Ankey’s complaint. Mr. Bickford testified that according to his measurements, which were admitted into evidence as Exhibit A, the Home had been placed properly (i.e., 10 feet from the property line). However, given the fact that Discount knew prior to making those measurements that a complaint had been filed against it on this very point of contention, the Administrative Law Judge gives very little weight to Discount’s claim in this regard. On May 18, 2000, Discount submitted its application to Yuma County for a building permit for the deck and awning. However, the County rejected the application because, according to Mr. Bickford, a different application had already been filed (by Specialty) showing that the Home was to be moved. Mr. Bickford’s rendition of events is supported by the evidence: Mr. Ankney had by May 18, 2000 already contracted with Foothills Home Installers, L.L.C. (“Foothills”) to move the Home, and with Specialty to remove and rebuild the deck and awning in connection with that move. Specialty, in turn, had filed for the required permit on May 16, 2000, two days before Discount attempted to obtain its own permit. On or about May 31, 2000, after Specialty removed the existing deck and awning, Foothills moved the Home two feet from the location at which it had originally been set. Specialty thereafter rebuilt the deck and awning. Specialty’s agreement with Mr. Ankney to remove and rebuild the deck and awning presented one slight complication. Yuma County’s building code required, in addition to the ten foot minimum setback, that separate habitable structures on a single parcel of property be placed at least six feet apart. The Garage qualified as a habitable structure, as did the Home. Therefore, Yuma County’s code required that these structures be placed at least six feet apart from each other. When the Home was moved, its new placement violated the six foot minimum separation because it was too close to the Garage. But the Garage, a permanent structure, could not be moved. Specialty cured this problem by “notching out” a section of the deck so as to ensure compliance with the six foot minimum separation.[2] As a result of the design change to the deck to accommodate the distance to the Garage, Specialty had to modify part of the awning’s support structure. Specifically, whereas all of the awning’s poles had previously mounted directly to the deck, the “notching out” of a portion of the deck forced Specialty to use dead man anchors in several locations. Specialty’s use of dead man anchors increased the cost of rebuilding the awning. However, there was no evidence presented as to the amount of this additional cost. Mr. Ankney elected to have Specialty rebuild a portion of the new deck with steel instead of the original wood. The record contains a suggestion that the deck built by Discount may not have complied with Yuma County code requirements, but there was no probative evidence presented that the Discount-constructed deck in fact violated any such requirements. Therefore, the Administrative Law Judge finds that Mr. Ankney chose the steel section as an upgrade and not for reasons related to Discount’s workmanship. Mr. Ankney’s decision to use steel instead of wood increased the cost of rebuilding the deck. However, there was no evidence presented as to the amount of this additional cost. According to Mr. Ankney, after Foothills moved the Home, the utility connections (electric and water) that previously had risen up underneath the Home were exposed. Therefore, in addition to the work involved in moving the Home and removing and rebuilding the deck and awning, Mr. Ankney contracted to move those utility lines back under the Home. Mr. Ankney presented two documents in support of this claim. The first document, Exhibit 3, is an invoice from J&M Electric that describes the work performed as “Relocate J-box for sub-feeders to new building. Includes installing new PVC J-box below ground level.” The second document, Exhibit 4, is an invoice from Culligan Water Conditioning of Yuma that describes the work performed as “Relocated water conditioner because of house relocation.” Mr. Ankney testified that he incurred the following expenses for which he seeks restitution from Discount: |Item |Contractor |Claimed | | | |Expense | | | | | |Remove existing deck and awning, remove |Specialty |$ 675.00 | |existing skirting around deck and the Home | | | |Move Home two feet |Foothills |$ 663.00 | |Build new deck, replace vinyl skirting |Specialty |$ 3,414.13 | |Reinstall awning (includes cost for dead |Specialty |$ 585.00 | |man anchors) | | | |Tax and permit |Specialty |$ 325.87 | |Relocate J-box for electrical sub-feeders |J&M Electric |$ 150.00 | |Relocate water conditioner |Culligan |$ 80.23 | | | | | |TOTAL CLAIMED EXPENSES | |$ 5,893.23 |

Mr. Bickford claimed that Specialty’s charges for its work performed for Mr. Ankney were exorbitant. However, Mr. Bickford did not explain the basis for this claim or provide an estimate of what alternative, reasonable charges would have been. Mr. Bickford asserted that the J&M electric invoice referred to work performed in connection with the Garage instead of the Home. However, he presented no evidence to support this claim other than the invoice’s reference to the “new building,” which Mr. Bickford argued was the Garage as opposed to the Home. The weight of the evidence demonstrated that the J&M electrical work pertained to the moving of the Home. Statement of the Claim and the Defense The gravamen of Mr. Ankney’s claim against Discount is that if Discount had submitted a timely building permit application to Yuma County with its corresponding site plan, as Discount acknowledged it was required to do, then the setback violation would have been immediately discovered and rectified. According to Mr. Ankney, Discount’s failure to obtain the building permit (and thus discover the setback violation) caused him to incur substantial expenses associated with moving the Home, including the cost of removing and rebuilding the awning and deck. Discount, while acknowledging that it failed to obtain the building permit, denied that such failure should subject it to discipline. Discount argued that the Home was properly placed, and that the Home “had to be moved to comply with the structure that Mr. Ankney had built and altered that was not done with a building permit.” Discount urges that it was willing to obtain the required permit after the fact, and that it was unable to do so only because Mr. Ankney had already contracted with Specialty, which had filed its permit application prior to Discount. As an alternative defense, Discount urges that Spartan should have included a reference to the Home’s location in its site plan (see Finding of Fact No. 7, above), in which case the improper setback would have been discovered, and that the County inspector should have discovered the problem at the time Mr. Ankney was cited for having converted the Garage without a permit (see Finding of Fact No. 9, above). Preliminarily, the Administrative Law Judge rejects Discount’s contentions that (a) the Home was properly placed at the outset, and (b) the Home “had to be moved to comply with the structure that Mr. Ankney had built and altered that was not done with a building permit.” As to the first point, the Administrative Law Judge deems Discount’s evidence of proper placement ( measurements taken after the filing of Mr. Ankney’s complaint ( not to be credible. As to the second point, Discount’s argument is not logically coherent. If the Home and the Garage were too close together (the only reason one would have to move one or the other of these structures), then the solution would not be to move the Home two feet closer to the Garage, as was done in this case. There can be only one explanation for moving the Home two feet closer to the Garage: the Home was two feet too close to Mr. Ankney’s property line. The Administrative Law Judge also rejects Discount’s alternative defenses. Discount’s failure to have obtained a building permit, and the consequences that flowed from that failure, are not excused or mitigated by the fact that Spartan and the County’s inspector also did not discover the improper placement of the Home. The fact remains that if Discount had timely applied for a building permit, the discrepancy would have been discovered. Subsequent actions or omissions by third party contractors or County inspectors did not and do not alter this fact. The Administrative Law Judge finds that if Discount had timely submitted a proper permit application, the deficiency in the Home’s placement would have been detected. The Administrative Law Judge further finds that Discount’s failure to have submitted a timely permit application substantially injured Mr. Ankney because, but for Discount’s omission, Mr. Ankney would not have had to remove and rebuild the deck and awning. However, this finding does not mean that Mr. Ankney is entitled to restitution of all of the costs he claims to have incurred. First, assuming that Discount had discovered the Home’s improper placement at the time it constructed the deck and awning, there is no evidence in the record that the cost of moving the Home would have fallen on Discount. (In all likelihood, that cost would have fallen on Southwest, the party that set the Home in the first instance.) Second, to the extent Mr. Ankney is entitled to restitution for removing and rebuilding the deck and awning, he is only entitled to the amount necessary to replace the deck and awning in their original condition. But here, Mr. Ankney substituted steel decking for wood decking, and, for reasons not attributable to Discount, incurred an additional expense for dead man anchors for the awning.[3] Mr. Ankney did not submit any evidence as to what the cost would have been to rebuild the deck and awning in their original condition, and thus there is no basis upon which to determine an appropriate amount of restitution for these items. Third, although it would be appropriate to grant restitution for the amount that Mr. Ankney paid for the Specialty building permit, the claimed amount for this cost is combined with a claim for taxes paid, and there is no evidence presented as to what the cost was for the permit alone. Thus, there is no basis upon which to determine an appropriate amount of restitution for this item. Based on the foregoing, the Administrative Law Judge finds that restitution, while indicated, is appropriate only for (a) the cost to remove the existing deck and awning, and (b) the cost for moving the electric and water connections, a total of $905.23. CONCLUSIONS OF LAW In this proceeding, Mr. Ankney bears the burden to prove, by a preponderance of the evidence, that Discount is subject to discipline for violations of A.R.S. § 32-1154(A) as charged by the ROC in its June 2, 2000 Citation and Complaint. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Mr. Ankney sustained his burden to prove that Discount violated A.R.S. § 32-1154(A)(2) and (A)(7). Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans and specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another. . . .” Discount violated this provision when it failed to obtain a building permit for Mr. Ankney’s deck and awning, which failure was prejudicial to Mr. Ankney because it caused Mr. Ankney to incur costs that he otherwise would not have incurred. Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” Discount violated this provision for the same reason set forth above. Based on the foregoing violations, it is appropriate for the ROC to impose discipline against Discount’s license. The Registrar of Contractors’ authority in matters such as this includes the ability to impose restitution, in whole or in part, as a reasonable condition to reduce any possible disciplinary action against contractors. See A.R.S. § 32-1156.01 (specifically authorizing the Administrative Law Judge to recommend that a licensee provide restitution “to any person who is injured or whose property is damaged by an action of the licensee.”). The Administrative Law Judge deems the exercise of such authority to be appropriate in the instant case. Therefore, based upon all the evidence, a reasonable condition in this case would consist of the payment by Discount to Mr. Ankney of $905.23 as restitution for the cost to remove the deck and awning and to move the electric and water connections. Imposing such a condition is preferable to imposing disciplinary action against Discount’s license without providing a condition to reduce or eliminate same. The ROC’s June 2, 2000 Citation and Complaint advised Discount that in the event of a finding of a violation against it, Discount’s prior disciplinary record of final Registrar of Contractors’ orders could be considered in mitigation or aggravation. Accordingly, subsequent to the conclusion of the instant hearing, the Administrative Law Judge took notice of prior final disciplinary orders against Discount in the ROC’s official records. Those records revealed several prior complaints, none of which had resulted in a final disciplinary order. Therefore, Discount’s prior record is deemed to be good. The Administrative Law Judge considered this mitigating factor when determining appropriate recommended discipline in this case. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following recommended Order: Commencing on the effective date of the Order entered in this matter, Discount’s Class C-61 license shall be suspended until such time that the ROC receives credible written proof that Discount has paid or tendered to Mr. Ankney the sum of $905.23. If Discount pays or tenders to Mr. Ankney the sum of $905.23 on or before the effective date of the Order entered in this matter, and provides credible written proof to the ROC of such payment or tender, then the above provided suspension shall not take place and this matter shall be closed. Done this day, December 5, 2000.

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

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

By ___________________________ ----------------------- [1] The evidence demonstrated that as between the Home, deck and awning, only the awning required a building permit. Thus, the responsibility for obtaining that permit fell on Discount as opposed to Southwest.

[2] Mr. Ankney could have avoided this problem by moving the Home to a different part of his property. However, Mr. Ankney testified that to do so would have required that he place the Home along the front of his property, and he did not want to place the Home in that location.

[3] Discount is not responsible for the deck notching that required the use of dead man anchors because it was Mr. Ankney who converted the Garage to a habitable structure, thus bringing into play the six foot minimum separation requirement.

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