ALJDEC decisions subject to certification as final

04F-H0026-ROC · Registrar of Contractors · 2004-02-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 27, 2004 APPEARANCES: Ronald B. Vanderpool appeared on behalf of himself and his wife, Jackie A. Vanderpool (“Complainants”). Joe Soleman Burroughs (“Respondent”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Michael L. Barth _____________________________________________________________________ findings of Fact 1. The purpose of the hearing was to determine whether Respondent violated A.R.S. 32-1154(A)(1), (2), (7), (9) and/or (12). 2. On or about February 12, 2002 the parties entered into a written agreement, Exhibit 1, for construction of a block wall by Respondent at a length of I00’ plus and height of 4’ plus on Complainants’ property for a price of $5,000.00, to be paid as follows: $1,000.00 down payment, $1,000.00 upon pouring of the footings, $1,000.00 upon delivery of the block and $2,000.00 upon completion. It was undisputed that Complainants paid a down payment of $1,000.00. 3. On the basis of said written agreement, Complainants contend that they had not agreed to pay Respondent for construction of a block wall at a length of 40’ and height of 6’ on the north/south common property line separating their property from the property of Complainants’ neighbor, Dyer. Complainants contend that the parties had only agreed to construction of a block wall of just over 100’ long on the east/west property line. 4. It was undisputed that Respondent had agreed to construct a block wall just over 100’ in length along the east/west property line for a price of $5,000.00. 5. It was undisputed that Respondent refused to construct a block wall at that location after Complainants refused to pay for construction of the block wall at the common property line on its completion. 6. Respondent contends, however, that in addition to agreeing to paying Respondent the sum of $5,000.00 to construct a block wall of just over 100’ in length on the east/west property line, Complainants also agreed to pay Respondent the sum of $3,900.00 to construct an additional block wall at a length of 40’ and height of 6’ on the north/south common property line. 7. The final length and height parameters of block wall to be installed, price for installation of block wall over a length of 100’ and height of 4’ and identity and number of location(s) for installation of block wall were not specified in the written agreement. 8. Based on the foregoing, the written agreement did not represent the entire agreement of the parties. Accordingly, this tribunal finds that the written agreement did not in and of itself preclude, as proposed by Complainants, an oral agreement by Complainants as part of a contract to construct block wall to also pay Respondent an additional sum of $3,900.00 to construct additional block wall at a length of 40’ and height of 6’ along the north/south common property line. 9. An existing retaining wall on the Dyer’s side of the common property line was found to be in violation of Bullhead City’s building code as the wall was failing. The Dyers were responsible for correcting the failing retention wall. 10. It was undisputed that the Dyers had also contracted Respondent to replace a portion of said failing retention wall. 11. Mr. Vanderpool admits having entered into conversations with Respondent regarding constructing a block wall on the north/south common property line but denies having entered into an agreement with Respondent for construction of a wall at that location. 12. It was undisputed that Mr. Vanderpool had excavated the contiguous bank along that north/south common property line and in having done so, was required by Bullhead City’s building code to either construct a retaining wall or restore the slope at the site of excavation. 13. Mr. Vanderpool admits that when he completed excavation he had intended to construct a retaining wall. 14. It was further undisputed that Mr. Vanderpool had obtained a permit to construct a retaining wall at a length of 58’ along the north/south common property line. 15. In support of Complainants’ claim that they had abandoned their intent to construct a retaining wall at the common property line, Mr. Vanderpool testified that a refund of the permit fee had been issued for construction of that block wall after he had orally requested in person withdrawal of the permit for said block wall from Bullhead City Building Inspector Daniel J. Jackson, Sr. However, Mr. Jackson testified that: the permit had not been withdrawn as a permit could not be withdrawn in absence of a written request, he would not have advised Mr. Vanderpool otherwise, and Exhibit 5, the purported written record of refund for the permit, dated February 8, 2002, relied on by Complainants, was a refund of a city plan review fee for which Complainants had been charged twice. Consistent with Mr. Jackson’s testimony, said refund record reflects that a city plan review fee versus a permit fee was refunded to Complainants. 16. This tribunal finds Mr. Jackson’s testimony to be credible as he was a disinterested witness, not having anything to gain or lose by his testimony, and his testimony regarding the refund was consistent with the refund record upon which Complainants’ relied in support of their position here. 17. Respondent testified that, upon discovering that the Dyers did not intend to build a wall to a previous planned length along the north/south common property line, Complainants had informed Respondent that they would not construct their planned block wall on the common property line. Respondent further testified that Complainants, however, proposed to construct a block wall at a length of 40’ at that location if Respondent could persuade the Dyers to install block wall at a length of 30’, 18’ of which would be installed on the Complainants’ side of the common property line, connecting the Dyer’s existing retention wall to the 40’ long block wall proposed by Complainants. 18. Respondent testified that the Dyers agreed to do so, and Respondent purchased the blocks and began to prepare the footings at the location of the north/south common property line. 19. Respondent further testified that Mr. Vanderpool was on the jobsite during construction of the footings and later construction of the wall and never protested the construction. 20. Mr. Vanderpool denied having witnessed construction of the wall until it was nearly completed but admitted that he did not protest its construction at that time. Regarding his failure to protest construction, Mr. Vanderpool explained he believed that Respondent was constructing the wall for Dyer on Dyer’s side of the common property line. 21. This tribunal finds Respondent to be a more credible witness than Mr. Vanderpool for several reasons discussed below. 22. Based on Exhibit C, a photograph of the completed 58’ long retention wall and the Dyer’s retention wall, this tribunal finds that it would have been obvious to a layperson that the 58’ long retention wall was being constructed on Complainants’ side of the common property line when comparing its location to that of the Dyer’s retaining wall. 23. This tribunal finds that it is unlikely given the foregoing undisputed facts, that a commercial property owner residing in relatively close proximity to the property at issue as in this case would be unaware in the early stages of construction of construction of any structure by the neighboring property owner at or near the common property line and not know whether that structure was being constructed on his or the neighboring property owner’s side of the common property line, and if the structure was being constructed on his side of the common property line, not protest its construction. 24. In addition, this tribunal finds that Mr. Vanderpool, despite his protestations to the contrary, did not honestly believe, although mistakenly, that he had withdrawn the permit for construction of the block wall at the common property line. The refund record, upon which Mr. Vanderpool relies for his purported belief, clearly and unambiguously, reflects that a plan review fee as distinguished from a permit fee was refunded. Mr. Vanderpool knew that a written request was required for withdrawing a permit before construction started and never made one. 25. On the other hand, Respondent’s testimony was consistent with Complainants having excavated the contiguous slope on the common property line, Complainants’ intent at the time of excavation of constructing a retaining wall at the site, Complainants obtaining a permit to do so, and Complainants’ non-withdrawal of the permit. 26. This tribunal further finds, on the basis of common experience, that it is unlikely for a contractor to mistakenly or intentionally construct a structure for a consumer’s benefit given that the consequence of such action is non-payment for the labor and materials. 27. Based on the foregoing, this tribunal finds that Complainants entered into a contract to pay Respondent the sum of $3,900.00 to construct a 40’ long block wall at the location at issue as well as to pay Respondent the sum of $5,000.00 to construct a 100’ long block wall along the east/west property line. This tribunal further finds, on the basis of the written agreement, that final payment for construction of a block wall at a location to be designated by Complainants, was due on completion of that block wall at said designated location. 28. Bullhead City Building Inspector Tammy Davis, as a disinterested witness, credibly testified that the 58’ long retention wall had been built by Respondent in accordance with the building code and the revised plans. 29. Given Complainants’ denial of owing any monies to Respondent for construction of the 40’ long block wall despite having orally agreed to do so and Respondent having completed construction of the block wall for the agreed upon price at the agreed upon location and in accordance with the plans and building code, Respondent’s refusal to construct the block wall at the east/west property line for $5,000.00 was legally excusable. In failing to pay for the block wall constructed at the common property line, Complainants had breached the contract for construction of block walls. 30. Complainants failed to present any evidence that Respondent failed to comply with any safety or labor laws or codes of the federal government, state or political subdivisions of the state. Conclusions of Law 1. Given that Respondent’s refusal to complete the contract for construction of block wall at Complainants’ property was legally excusable, Respondent did not violate A.R.S. § 32-1154(A)(1). 2. Given that the block wall that was constructed was constructed in accordance with plans and the local building code and that Respondent’s refusal to construct the block wall at the east/west property line was legally excusable, Respondent did not violate A.R.S. § 32-1154(A)(2). 3. Given that Respondent’s refusal to construct the block wall at the east/west property line was legally excusable, Respondent did not violate A.R.S. § 32-1154(A)(9). 4. Given that Respondent’s construction of the block wall at the common property line was in compliance with the local building code as well as the absence of any evidence that Respondent violated any safety or labor laws or codes the federal government, state or political subdivisions of the state, Respondent did not violate A.R.S. § 32-1154(A)(12). 5. Not having violated any of the statutes discussed above, Respondent did not commit a wrongful or fraudulent act in violation of A.R.S. § 32-1154(A)(7). Recommended Order In view of the foregoing, it is recommended that Case No. H04-0026 be dismissed. Done this day, February 17, 2004

______________________________________ Michael L. Barth Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2004, to:

Registrar of Contractors Israel G. Torres ATTN: Jennifer Brown 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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