ALJDEC decisions subject to certification as final

06F-2455-ROC · Registrar of Contractors · 2007-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 15, 2007 at 9:00 a.m.; the record remained open until October 22, 2007 to allow Complainant to file a copy of its hearing Exhibit 4 that was suitable for storage according to the guidelines of the Office of Administrative Hearings. APPEARANCES: Complainant VIP Construction, Inc. appeared through Robert R. Berk, Esq., Jones, Skelton & Hochuli, PLC; Respondent Blucor Contracting, Inc. appeared through Dale W. Robinson, Esq., Johnson, Rasmussen, Robinson & Allen, PLC. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On September 13, 1989, the Registrar of Contractors issued License No. ROC084121, Class A-, for general engineering to Respondent Blucor Contracting Inc. (“Blucor”), a corporation.

2. On September 20, 1993, the Registrar issued License No. ROC099261, Class B-, for general residential contracting to Complainant VIP Construction Inc. (“VIP”), a corporation. 3. On May 25, 2006, the Registrar received a complaint from VIP against Blucor’s license, which alleged that “[e]lectrical box [(“the J-box”)] was not installed per plans and specifications.” According to the complaint, the date of the parties’ contract was January 12, 2004 and Blucor had last performed work at the jobsite on February 1, 2005. 4. The Registrar referred the matter to Blucor for its immediate attention. On June 2, 2006, the Registrar received Blucor’s initial response to the complaint, which alleged that VIP had hired the surveyor, that Blucor had installed the J-box according to the plans and the surveyor’s stakes, and that the box had been accepted by the City of Phoenix. 5. The complaint was assigned to the Registrar’s Inspector John Moll for investigation. On June 19, 2006, Inspector Moll conducted a jobsite inspection. On that same date, he sent a letter to VIP, informing it that he did not feel that the Registrar could issue a citation against Blucor’s license for the following reasons: Inspection revealed electrical “J-Box” was installed two (2) feet off center of lot line towards lot 29 (8636 S. 10th Lane). The area in question is a “public Utility Easement” and the current location is purported to meet SRP and City of Phoenix installation requirements. Due to the various persons/entities involved, this inspector is unable to determine who is responsible for the “As Built” location of the “J-Box.”

Inspector Moll also informed VIP that, if it disagreed with his decision, it could request a hearing. 6. On November 28, 2006, the Registrar received VIP’s request for hearing, which alleged that “[w]e have additional evidence from SRP with them claiming that the j-box is not in the correct location.” No additional evidence was attached to VIP’s request for hearing. 7. On February 15, 2007, the Registrar issued a Citation and Complaint against Blucor’s license, which charged violations of A.R.S. § 32-1154(A)(2), (7), and (3) (namely, A.A.C. R4-9- 108). 8. On March 1, 2007, the Registrar received Blucor’s written response to the Citation and Complaint, which denied any statutory violations. 9. The Registrar referred the matter to the Office of Administrative Hearings and issued a Notice of Hearing. 10. After several continuances, a hearing was held on October 15, 2007. VIP presented the testimony of its Business Manager, Jean Jacques (“JJ”) Mulleneaux and had admitted into evidence eight exhibits. Blucor presented the testimony of its Project Manager Dustin Bluth and president Gordon Bluth and had admitted into evidence two exhibits. Because Inspector Moll had since retired, the Registrar’s Assistant Chief of Inspections Robert Davies testified about Inspector Moll’s inspection, the Registrar’s policies, and general construction practices. Hearing Evidence 11. Lot 29 is in Phase 2 of the Dobbins Crossing development, located in Phoenix at 7th Ave. and Dobbins Rd. Phase 2 has homes. 12. VIP is not the original developer of Dobbins Crossing. Another company plotted the original subdivision and VIP “inherited” its plans, according to Mr. Mulleneaux. 13. SRP provides electrical power to the subdivision. SRP specifies how many homes and the size range of homes that can be built in the subdivision. Phase 2 lost approximately 7 lots because SRP decided that the original plat did not allow sufficient set backs. 14. Before any construction was done, SRP provided plans to VIP, which were admitted into evidence. SRP’s plans show that Lot is located on the west side of a curve of a street; due to the curve, the southern boundary of Lot 29 angles to the northeast before it reaches the street. A J-Box and a street light are shown in the boundary between Lots 29 and 28, on the short angled lot line next to the street. The plan does not show the planned locations of the houses or driveways. 15. SRP also provided VIP with details of the planned electrical utilities. The instruction for “determination of above ground J-box elevation” provided that “above ground J-box must have a 3’ min. clearance from driveways or traffic areas.” The illustration showed three driveways on three perfectly rectangular lots, going straight back from the street at a 90° angle, and a 3’-wide public utility easement (“PUE”) running across the front of the three lots. 16. Before electric lines are installed in a new subdivision, property lines are staked and “wet utilities” (storm sewers, sewer lines, and water lines) are installed. 17. At the Dobbins Crossing, VIP hired the EPS Group to survey and stake the development. 18. Gordon Bluth testified that, in his experience, surveyors not infrequently make mistakes. Surveyors therefore are required to carry professional errors and omissions insurance. 19. VIP hired Blucor to install dry utilities, including electric, do concrete, including sidewalks, curbs, and curb cuts for driveways, but not driveways at individual houses, and streetlights. Blucor subcontracted installation of streetlights to another contractor. 20. VIP provided Blucor with SRP’s plans, described at Finding of Fact Nos. 14 and 15 above. Both Dustin Bluth and Gordon Bluth testified that, before the hearing, they were unaware that the J-box needed to be 3’ from the driveway. Both testified that, when they install J-boxes, they may know where the driveway cuts are, but they do not have any plans for or know the actual planned location of the driveway. Utilities are usually installed before driveways because the utilities may have to go under the driveway. 21. Houses are usually not built until after dry utilities are installed, because the trench will prevent or complicate access to the site of the house. A plank must be laid across the dry utility trench to afford access to the construction site. 22. Driveways are usually not installed until after the house is built, to avoid having workmen damage or stain the driveway. It is hard to match previously poured concrete if repairs are necessary. 23. No evidence was presented that the house or driveway on lot were built out of the usual course of construction. 24. Blucor dug trenches for the installation of the dry utilities, including electrical lines. The location of the J- box was determined by snapping a string line between the stakes marking the property line at the front and rear of the property. On lot 29, because the southern property line cut northeast before it reached the street, a third stake may have been placed. 25. After the trench is dug and bundled electric lines placed, SRP inspects the location of the utilities by snapping a string line between the stakes. The future location of the J- box is shown by the bundled electric lines curving and standing up out of the ground. If the J-box or lines are not in the correct place, SRP will not allow construction to proceed. The J-box at Lot 29 passed SRP’s inspection. 26. After the first inspection, lines for other dry utilities, including telephone, cable television, and natural gas, if it is available, are laid on top of 1” backfill above the last utility. The trench is then completely back filled. 27. SRP performs a second inspection after all the dry utilities are placed and the trench is backfilled, to check the orientation of the line and the grade. SRP then sets the pads for the electrical transformer and the box for the J- box. SRP then puts their cable into the J-box, which must be custom cut for the particular box. SRP will not install its cable if the J-box does not pass the second inspection. SRP installed its cable into the J-box in the PUE between lots 29 and 28. 28. Different stakes are placed to mark the location of the sidewalks and curb cuts on each lot. 29. Blucor pours the sidewalk right up to the property stake at the front of the property. Because the process of pouring the sidewalk moves the front stake, the property must be restaked for locating the house and driveway. 30. After Blucor completed its work, VIP built the house and driveway on Lot 29. The garage is on the southern side of the house and the driveway angles to the south off the southern curb cut. Because most homeowners prefer a large backyard, VIP generally builds houses right up to the required setback in the front. 31. At least three house pads in the Dobbins Crossing subdivision were poured with the required setback and had to be corrected. 32. The second owner of the house on Lot 29 poured a concrete pad to widen the driveway. The pad extends across the property line onto Lot 28. 33. The J-box that Blucor installed is less than 3’ from the new pad that the second owner of the house on Lot 29 poured and less than 3’ from the angled driveway that VIP poured for the house on Lot 29. 34. If the driveway had gone straight back to the house at a 90° angle to the street, as shown on the illustration on SRP’s plan details, and the second owner had not enlarged the driveway, the J-box that Blucor installed would have been more than 3’ away from the driveway on Lot 29. 35. The J-box for Lot 29 is located in the PUE, but it is not on the property line. The light pole is on the property line. The house has the required minimum setbacks in front and on both sides. 36. The second owner of the house on Lot 29 made a complaint against VIP to the Registrar of Contractors about the location of the J-box. The SRP plans requiring that J-boxes be installed at least 3’ from roads, driveways, and other traffic areas apparently were not offered into evidence and the Registrar dismissed the homeowner’s complaint. 37. On August 29, 2006, Jane M. May, the Consumer Ombudsman for SRP, wrote a letter to VIP, in relevant part as follows: On May 12th you contacted SRP requesting the J-Box located at [Lot 29] be relocated. SRP has reviewed the location of the J- Box and found that it is 18” from the original design, not on the property line and agree that it should be moved.

Although SRP inspected the trench and conduit for this J-Box and passed the inspection, SRP does not assume responsibility for the location of the J-Box.

Costs to move the J-box have been determined at $7494. Unfortunately, this is a specialized excavation due to high voltage feeder wire in the same trench. Please contact David Tso, Supervisor, SRP Homebuilder Management to proceed with the relocation. . . .

38. At some point, SRP moved the J-box on Lot 29 to be at least 3’ away from the driveway that VIP poured and the additional concrete pad that the homeowner had poured. 39. As of the date of the hearing in this matter, SRP has not filed suit against VIP or made a claim against its license to recover the alleged cost of moving the J-box. VIP has not paid anything to SRP to pay for the cost of moving the J-box. CONCLUSIONS OF LAW VIP bears the burden of proof and must establish Blucor’s contracting law violations by a preponderance of the evidence.[1] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[3] It appears that mistakes were made with respect to the location of the J- box that Blucor installed relative to the property line and the driveway that VIP poured. However, on this record, it is not possible to apportion fault for the location of the J-box among EPS Group, for erroneously staking the property line, Blucor, for locating the box, SRP, for not catching Blucor’s mistake, VIP, for failing to supervise EPS Group or Blucor allowing the original driveway to be poured within 3’ of the J-box, and the second owner of house on Lot 29, who exacerbated the problem by pouring a larger pad, which was too close to the J-Box and, incidentally, extended onto his neighbor’s property. The apportionment of fault lies beyond the jurisdiction of the Registrar or the Office of Administrative Hearings.[4] The fact that the light pole and house may have been placed correctly does not establish that the misplacement of the J-box is attributable solely to Blucor because the evidence at hearing indicates that the property was staked at least three times. Nor does not appear that, at this time, VIP has sustained any injury as a result of Blucor’s alleged misplacement of the J-box. Because VIP has not borne its burden to establish that Blucor is solely or even primarily responsible for the alleged misplacement of the J-box and has not established any injury as a result if the alleged misplacement, VIP has not established that Blucor violated A.R.S. § 32-1154(A)(2),[5] (7),[6] or (3).[7] RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar dismiss VIP Construction Inc.’s complaint in Case No. 06-2455 against License No. 084121, Class A- of Blucor Contracting Inc. If the Director of the Office of Administrative Hearings certifies this Decision, the effective date of the order will be forty days from the date of certification. Done this day, October 29, 2007.

______________________________________ Diane Mihalsky Administrative Law Judge Original transmitted by mail this ____ day of October, 2007, to: Registrar of Contractors Fidelis V. Garcia, Director Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By _________________________ ----------------------- [1] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

[2] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

[3] Black’s Law Dictionary at page 1220 (8th ed. 1999).

[4] See A.R.S. § 12-2506, the so-called Uniform Contribution Among Joint Tortfeasors Act.

[5] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [6] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [7] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[v]iolation of any rule adopted by the registrar.” The rule violated here was A.A.C. R4-9-108, which requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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