ALJDEC

98F-2772-ROC · Registrar of Contractors · 1998-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 6, 1998. APPEARANCES: William A. Doty, Complainant, appeared on his own behalf. Janessa Shtabsky appeared representing Bassett Construction and Development LLC, Respondent and holder of Class B license No. 111997.

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (“Registrar”). Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made: FINDINGS OF FACT 1. William A. Doty, Complainant, resides at 16002 N. 35th Drive, Phoenix, Arizona. Complaint built his residence as an owner-builder, beginning construction in early 1997. 2. Bassett Construction and Development LLC, Respondent, is holder of Class B license No. 111997. Rob Boaen, is the President and Owner of Respondent. 3. This matter arises out of Complainant’s charge against Respondent that Respondent engaged in unworkmanlike efforts in constructing a slump block wall on the north side of Complainant’s home, as well as his allegation that Respondent damaged the sidewalk in front of his home. 4. In mid-1997, the parties entered an agreement for the construction of the wall in issue. The parties agreed to split the cost of the wall. 5. Respondent constructed the wall in issue in June-July 1997. Complainant promptly paid the sum of $631.45 for his share of the construction costs. 6. In early 1998, Mr. Doty began construction of an extension of the block wall in issue. Complainant discovered that the wall Respondent built was constructed completely on the lot next to his property, rather than over the property line. As a consequence, the block wall is located to the north of Complainant’s property by as little as 3-5 inches at one end to as much as 9-11 inches at the other end. 7. Dissatisfied with Respondent’s construction of the wall, given the wall’s location, as well as its response to his complaint’s, Mr. Doty filed a Complaint with the Registrar on April 28, 1998. In the Complaint, Mr. Doty specifically charges that Respondent constructed the wall in the wrong place. 8. After filing the Complaint, Mr. Doty raised an issue as to cracks in the sidewalk in front of his home, alleging that Respondent’s construction activities in the area of Complainant’s home caused the cracks. Respondent agreed, during course of the proceedings in this matter, to allow an amendment of the Complaint to add Complainant’s claim regarding the sidewalk. 9. On or about June 2, 1998, after inspecting the block wall and sidewalk, John Ratcliff, Inspector for the Registrar, concluded that Respondent did not violate minimum standards of workmanship, nor did Complainant demonstrate a substantial injury from Respondent’s workmanship in issue. Inspector Ratcliff also concluded that he was unable to determine the cause of cracks and chipping in the sidewalk in front of Mr. Doty’s home. Inspector Ratcliff’s conclusions are sound and credible, based on the information available to him at the time. Inspector Ratcliff also confirmed that no corrective work order was issued in this matter. 10. During the hearing in this matter, Mr. Doty, Mr. Boaen, and Inspector Ratcliff testified. It is noteworthy that Mr. Boaen had limited first-hand knowledge of many of the events relevant to this matter. The preponderance of the evidence convinces this Judge that the parties agreed that Respondent would use reasonable efforts to locate the block wall over the property-line dividing Complainant’s lot and the lot immediately north of Mr. Doty’s lot. In considering whether the placement of the wall substantially injures Complainant, the record evidences that Complainant’s neighbor to the north has no issue with the placement of the wall and he has given Mr. Doty permission to treat the wall as he pleases. However, the record also evidences that the wall is located completely on Mr. Doty’s neighbor’s property. While Respondent urges that Mr. Doty has gained property, because of the placement of the wall, Complainant has not gained title to such property and likely will be required to address the matter if he attempts to sell his home. Simply, Complainant did not receive what he bargained for in paying for his share of the wall. With respect to the sidewalk issue, the preponderance of the evidence convinces this Judge that Respondent’s construction activities in the vicinity of Complainant’s property, which were virtually the only construction activities ongoing at the relevant time, caused the cracks and chipping in the sidewalk fronting Complainant’s home.

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §32-1154A provides, in relevant portions, that a holder of a license or a person listed on a license shall not commit the following: 3. Violation of any rule adopted by the Registrar.[1] xxx 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. xxx 23. Failure to take corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving written directive from the Registrar.

CONCLUSIONS OF LAW 1. To warrant action by the Registrar pursuant to the statutes above, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one of the statutes. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 2. Complainant fails his burden to demonstrate any fraudulent conduct on the part of Respondent. 3. With respect to Respondent’s alleged wrongful conduct and unworkmanlike efforts, Complainant sustains his burden of demonstrating violations. “A workmanlike manner means doing the work in an ordinary skilled manner as a skilled workman should do it.” J.W. Hancock Enter., Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (Ariz. 1980) (quoting Brown v. Eakins, 220 Or. 122, 348 P.2d 1116, 1117 (1960)). Complainant demonstrates sufficient evidence that Respondent’s actions and/or omissions outlined in the Findings of Fact above constitute violations of A.R.S. §§32-1154A(7) and A(3), namely A.A.C. R4-9-108. 4. With respect to Respondent’s alleged failure to take corrective action without good cause, no corrective work order was issued in this matter. Thus, Complainant fails his burden of demonstrating that Respondent failed to take corrective action; that is, Complainant fails to demonstrate a violation of A.R.S. §32-1154(23).

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Director that, commencing ten (10) days after the effective date of the final order entered in this matter, the Class B license of Respondent be suspended. It is further recommended that Respondent have an opportunity to avoid suspension of its license. If Respondent completes and effectively repairs the sidewalk fronting Complainant’s home and remits to Complainant the sum of $631.45, on or before the expiration of ten (10) days after the final order’s effective date, then no license suspension shall take place and the Citation and Complaint in matter shall be

closed. Done this day, November 20, 1998.

______________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

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

By ___________________________

----------------------- [1] Specifically A.A.C. R4-9-108 provides that all work shall be done in a workmanlike manner. Workmanlike manner is described to be compliance with local building codes of express application to the type of work done and complained of.

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826