ALJDEC

99F-L0100-ROC · Registrar of Contractors · 1999-09-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 1, 1999; 9:05 A.M.; Lake Havasu City, Arizona APPEARANCES: Complainants: Dale M. Van Slyke and Carol A. Van Slyke Respondent: Harvey R. Jackson, Esq. ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr.

Based upon the evidence presented at the hearing, Administrative Law Judge George A. Schade, Jr. submits this Recommended Decision and Order to the Director of the Arizona Registrar of Contractors (“Registrar”). FINDINGS OF FACT PROCEDURAL BACKGROUND 1. Respondent Continental Quality Pools (“Continental”), a partnership, holds License No. 103750, Class B-05, issued by the Registrar on August 18, 1994. Mr. Richard Allen Lodisio is a principal partner. 2. On December 15, 1998, Mr. and Mrs. Dale M. Van Slyke filed this complaint with the Registrar alleging that Continental had built a pool and retaining wall/fence in an unworkmanlike manner and not pursuant to the contract of the parties. 3. On January 28, 1999, Messrs. James M. Boyett and Barry Billings, the Registrar’s inspectors assigned to this matter, made a jobsite inspection. Mr. Van Slyke and Mr. Lodisio attended the inspection. 4. On February 2, 1999, Mr. Billings issued a Corrective Work Order directing Continental to complete three corrective items related to workmanship and failure of equipment installed by Continental. 5. On February 22, 1999, Mr. and Mrs. Van Slyke requested an administrative hearing. 6. On March 19, 1999, the Registrar issued to Continental Citation and Complaint No. L99-0100 alleging violations of Arizona Revised Statutes (“A.R.S.”) §§ 32-1154(A)(3), namely the Registrar’s Rule R4-9-108, Ariz. Admin. Code, -(A)(7), -(A)(17), -(A)(19), and -(A)(23). 7. On March 29, 1999, Continental answered the citation and complaint. 8. On June 10, 1999, the Registrar issued a Notice of Hearing scheduling a hearing in Lake Havasu City, Arizona, on September 1, 1999. Pursuant to A.R.S. § 41-1092.01, the hearing was assigned to the Office of Administrative Hearings. 9. On August 5, 1999, Mr. and Mrs. Van Slyke requested to amend their complaint to add an allegation that Continental had built the retaining wall/fence on the adjacent property and not within their property. 10. On August 5, 1999, Administrative Law Judge Schade granted the request to amend the complaint and set for hearing “the issue of the location of the fence.” Procedural Order No. 1. 11. On August 31, 1999, Mr. Boyett made a prehearing inspection. Mr. Van Slyke and Mr. Lodisio attended the inspection. The inspection was, however, not completed due to conflicts. 12. On September 1, 1999, a hearing lasting one and one-half hours was held. Mr. and Mrs. Van Slyke testified and presented one exhibit. Mr. Lodisio testified and submitted two exhibits. Mr. Boyett testified. The Administrative Law Judge took official notice of the Registrar’s disciplinary record of Continental. THE CONTESTED ISSUES Prior to the hearing commencing, Mr. and Mrs. Van Slyke narrowed the issues to be heard. They presented evidence on three items, namely, the siting and workmanship of the retaining wall/fence, the cracked coping blocks along the edge of the swimming pool and other cracks, and the broken pool sweep. A. The Retaining Wall/Fence Siting the Retaining Wall/Fence 13. In September, 1997, Continental built a swimming pool in the rear patio of Mr. and Mrs. Van Slyke. As part of the pool, Continental erected a masonry wall along the west side of the lot and adjoining the pool area. 14. A portion of the fence was intended to serve as a retaining wall. 15. The retaining wall/fence is approximately 65 feet long and is from nearly six feet to a little over seven feet high (at the highest point it has eleven rows of blocks). 16. The exterior side of the fence is four feet and ten inches away from the west wall of the house. 17. The Lake Havasu City building code mandates a five foot setback of the house from the boundary line. 18. Mr. Boyett testified that the Lake Havasu City building code did not require a permit to build the retaining wall/fence. 19. In July, 1999, Mr. and Mrs. Van Slyke obtained a survey of their property. The survey shows that the retaining wall/fence stands about three inches (Mr. Van Slyke said 2½ inches) inside the adjacent lot, which is vacant. The fence is approximately eight inches wide (the width of the blocks). 20. The single sheet of paper which Mr. and Mrs. Van Slyke submitted at the hearing as representing a survey was not signed or sealed by a land surveying registrant (Registered Land Surveyor). The surveyor is not identified. 21. The parties disagree on one key point. Mr. Lodisio testified that prior to building the retaining wall/fence, he walked the property, found a boundary pin marker (1/2 inch steel rod with a plastic cap), and with the assistance of a site plot plan which Mr. Van Slyke provided, Mr. Lodisio calculated the location of the fence. Mr. Lodisio testified he found a second boundary marker. In his opinion, having found a boundary pin marker and having traced the calculations, Mr. Lodisio testified, Continental did not need a land survey to site the retaining wall/fence. On the other hand, Mr. Van Slyke testified that Mr. Lodisio made the calculations using the existing neighbor’s fence as the starting point of reference. Mr. Slyke was present when Mr. Lodisio did this work. 22. The survey shows that the planned dimensions of the lot were 75 feet by 125 feet. The survey found the actual dimensions to be: West Side - 124.93 feet North Side -75.12 feet East Side - 124.97 feet South Side - 75.02 feet. Workmanship 23. A few bricks on the fence are either partially broken or have cracks, but the retaining wall/fence otherwise appears to be serving its purposes. 24. Mr. Boyett testified that, in his opinion, the retaining wall/fence meets minimum workmanship standards with the exception of the cracks. There is “nothing major” wrong with its construction. 25. The Corrective Work Order directed Continental to obtain a testing report to verify “that all required metal reinforcement was installed.” Testing performed by a construction quality control company showed that “Vertical steel was identified on approximate 4-foot centers throughout the wall checking at approximate mid-height of the wall and horizontal steel was identified at the top of the wall continuously.” Respondent’s Exhibit No. 1. Mr. Lodisio testified that Continental installed an oversized footing and steel reinforcement on 2-foot centers inside the footing. B. The Cracked Coping Bricks and Other Cracks 26. Continental laid a coping row of used, red bricks along the edge of the pool. 27. According to Mr. Van Slyke, between twelve and fourteen of the coping bricks are cracked. According to Mr. Boyett, he saw two cracked bricks on the day of the initial jobsite inspection in January, 1999. 28. There are minor cracks in the caulking in the expansion joint between the bricks and the concrete pool deck. 29. There is a minor crack in the deck coating in the control joint. 30. The cracks in the bricks can be repaired by using an epoxy sealant or any other proper crack sealant. 31. Removing and replacing the coping bricks will most likely result in bricks which will not match the other bricks in size, texture and color. C. The Pool Sweep 32. Continental installed a black pool sweep in September, 1997. 33. Not more than six months later, at the request of Mr. and Mrs. Van Slyke, Continental replaced the black pool sweep with a new white pool sweep because the Van Slykes believed the black pool sweep was leaving black marks in the bottom of the pool. 34. Some time thereafter, the new white pool sweep broke. Mr. and Mrs. Van Slyke had their pool service person repair the broken pool sweep, but the pool sweep broke again. The sweep is missing a wing. 35. The Corrective Work Order directed Continental to replace the broken pool sweep “if damage covered by manufacturer’s warranty.” If the pool sweep was not then covered by a warranty, Continental did not need to replace the sweep. 36. The manufacturer’s warranty on the pool sweep was six months. 37. The warranty on the white pool sweep had expired by February 2, 1999, the date of the Corrective Work Order. 38. Mr. Boyett testified that the Registrar’s policy for equipment with a manufacturer’s warranty of less than one year, is that the contractor is responsible for replacing defective equipment if the warranty has not expired. CONTRACTING BEYOND THE SCOPE OF A LICENSE 39. An allegation was made that Continental needed to have a Class C- (Masonry) residential contractor’s license to build the retaining wall/fence. Continental did not have a Class C-31 license when the retaining wall/fence was built. 40. The fence in issue is situated around the swimming pool. 41. Mr. Boyett testified that Continental does not need a Class C-31 license to repair or rebuild the retaining wall/fence. CONTINENTAL’S PRIOR DISCIPLINARY RECORD 42. The Registrar’s public records show that three complaints alleging lack of good workmanship have been filed against Continental during the past two years. Mr. and Mrs. Van Slyke’s complaint is one of those two complaints. One complaint is pending compliance (Babbitt, No. L99-0195), and the third complaint is pending an administrative hearing (Harstad, No. L99-0151). CONCLUSIONS OF LAW APPLICABLE STATUTES AND RULES A.R.S. § 32-1154(A) provides in the pertinent subsections: “A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: *** 3. Violation of any rule adopted by the registrar. *** 7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured. *** 17. Knowingly contracting beyond the scope of the license or licenses of the licensee. *** 19. Failure to notify the Registrar in writing within a period of fifteen days of any disassociation of the person who qualified for the license. Such licensee shall have sixty days from the date of such disassociation to qualify through another person. *** 23. Failure to take appropriate 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 a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held pursuant to the provisions of this article.”

The Registrar’s Rule R4-9-108(A), supra, states “All work shall be performed in a professional and workmanlike manner.” CONCLUSIONS OF LAW 1. In these disciplinary cases, the complainants have the burden of proof, and the standard of proof on all issues is the preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996), review denied (1997); Troutman v. Valley Nat. Bank of Arizona, 170 Ariz. 513, 826 P.2d 810 (App. 1992). 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). 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 (6th ed. 1990). 2. Continental violated A.R.S. § 32-1154(A)(3), namely, the Registrar’s Rule R4-9-108, supra, but its responsibility is limited. The Registrar of Contractors is charged with determining workmanship of construction, or whether a licensed contractor performed “in a good workmanlike manner and in a manner befitting a skilled contractor.” Reliable Electric Co. v. Clinton Campbell Contractor, Inc., 10 Ariz. App. 371,374, 459 P.2d 98 (1969); see, J. W. Hancock Enterprises, Inc. v. Registrar of Contractors, 126 Ariz. 511, 514, 617 P.2d 19 (1980); A.R.S. § 32-1154(A)(3); Rule R4-9-108(A), supra. The lack of workmanship is in the manner of siting the retaining wall/fence, and secondly, in the cracks in the coping bricks and concrete deck. The Retaining Wall/Fence The siting of the retaining wall/fence is the most significant issue to Mr. and Mrs. Van Slyke. They want Continental to remove the retaining wall/fence and rebuild it entirely on their property. Continental, on the other hand, believes it correctly sited the retaining wall/fence by using a boundary pin marker it found and a site plot provided by Mr. and Mrs. Van Slyke. Further, Continental claims it reasonably relied on the five foot setback requirement of the house to site the fence. The preponderance of the evidence does not show that Continental erred in choosing the method it did to site the retaining wall/fence. Using a boundary pin marker in the field with plot measurements is a reasonable way of determining the location of property boundaries. The evidence does not support a conclusion that Continental should have obtained a land survey prior to building the retaining wall/fence. Mr. and Mrs. Van Slyke contend that Continental used a neighboring fence as a point of reference, but Continental disputed this testimony, claiming it used a boundary pin marker. Continental mistakenly assumed that the house had been properly sited and, therefore, relied on the location of the house and its mandated five foot setback as a reference point. The house does not comply with the required five foot setback at least on the side where the retaining wall/fence is located. The fence is four feet and ten inches away from the house, leading to the conclusion that the house is four feet and seven inches from the true boundary according to the survey, or five inches closer to the boundary than it should be. Lake Havasu City approved the final construction of the house. It must be presumed that the City approved the five foot setback, which now is discovered, was a mistake. That mistake has contributed to the situation in which these parties find themselves. Mr. and Mrs. Van Slyke provided Continental with a site plot plan for Mr. Lodisio to use. Mr. Lodisio reasonably relied on the measurements stated on the plot plan to make the calculations which led to the siting of the retaining wall/fence. At the minimum, there is an appearance of mistake as to whether Continental erred in the way it made its siting calculations in the field. But this would be only an assumption, and if made to determine this matter, such an assumption would be unreasonable. The survey presented at the hearing was not signed or sealed by a land surveying registrant, and it did not identify the surveyor. See, A.R.S. §§ 32-121 through 32-145 (registration of land surveyors). A person holding himself out as a land surveyor must be registered, and surveys must be issued under seal. A.R.S. §§ 32-125 and 32-145. Although Continental did not challenge the authenticity or accuracy of the survey, the Administrative Law Judge is concerned as to these issues which shadow the alleged survey. Finally, the extent of the deviation is not substantial, some three inches over the property boundary, or in other words, at least five inches of the fence are inside Mr. and Mrs. Van Slyke’s lot. The totality of the evidence leads to the conclusion that the proper disposition or outcome of this case is an equitable apportionment of responsibility. Equitable remedies are for contractual disputes. The parties had a contract to build a retaining wall/fence. Equitable remedies are within the Registrar’s regulatory authority. Murdock-Bryant Const., Inc. v. Pearson, 146 Ariz. 48, 53, 703 P.2d 1197 (1985); cited with approval in Commercial Cornice & Millwork, Inc. v. Camel Construction Services Corp., 154 Ariz. 34, 39, 739 P.2d 1351 (App. 1987). Continental cannot be held totally responsible for the missiting of the retaining wall/fence, but it cannot be fully exonerated. If responsibility is to be apportioned, an equal apportionment is reasonable, fair and proper. In short, if the retaining wall/fence is to be removed, Continental shall be responsible for only one-half of the financial cost. Three solutions are available. First, the retaining wall/fence can be removed and rebuilt on Mr. and Mrs. Van Slyke’s property; second, the Van Slykes can purchase from their neighbor the strip of land where the retaining wall/fence is located; and third, they can purchase a permanent retaining wall/fence easement. If a purchase of land or of an easement is made, Mr. and Mrs. Van Slyke may enter into an appropriate agreement with Continental whereby Continental would contribute up to what it would have paid as its share for the removal and replacement of the retaining wall/fence. The Cracked Coping Bricks and Other Cracks The cracks in the bricks, even though described as “minor,” and in the concrete deck, along the control and expansion joints, are evident and repairable. The Pool Sweep Continental is not required to repair or replace the pool sweep. The Registrar’s policy is that “Defects in appliances properly installed by the contractor shall be limited to the manufacturer’s warranty.” Minimum Workmanship Standards for Licensed Contractors, page 1 (October 1998). The pool sweep’s warranty had expired before the Corrective Work Order was issued. 3. Continental did not violate A.R.S. § 32-1154(A)(7). While Continental did not perform with good workmanship, its actions do not rise to the level of being “wrongful” acts within the meaning of A.R.S. § 32- 1154(A)(7). 4. Continental did not violate A.R.S. § 32-1154(A)(17). A Class B-05 residential contractor’s license allows the “Installation of fencing around the swimming pool.” Rule R4-9-103, supra. Continental was allowed under its Class B-05 residential contractor’s license to build the retaining wall/fence. 5. No evidence was presented which shows that Continental violated A.R.S. § 32-1154(A)(19). 6. Continental did not comply with the Registrar’s Corrective Work Order to the extent it did not repair the cracks in the coping brick edging and concrete deck, and therefore, violated A.R.S. § 32-1154(A)(23). Continental did not disregard the other items contained in the Corrective Work Order. It obtained a testing report, and the warranty on the pool sweep had expired. Continental’s failure to comply was, however, not egregious warranting the imposition of a civil penalty. 7. The Registrar may suspend or revoke, “with or without imposition of specific conditions,” a residential contractor’s license for violations of any of the provisions of A.R.S. § 32-1154(A). A.R.S. § 32-1154(B). 8. The prior disciplinary record of Continental’s license may be considered “as a matter in mitigation or aggravation” when formulating an appropriate recommended disposition of this matter. Notice of Hearing; Rule R4-9-117, supra. RECOMMENDED ORDER It is recommended that the Registrar: 1. Suspend Continental’s License No. 103750, Class B-05, but this suspension shall not occur, if on or before twenty days after the effective date of the Registrar’s order of suspension, the Registrar receives written notification that Continental has completed, or has caused to be completed through other licensed contractors, in a professional and workmanlike manner, the following: A. Either removal of the retaining wall/fence or another mutually acceptable resolution of the parties. If the retaining wall/fence is removed, Continental shall be responsible for one-half of the financial cost of removing and rebuilding the retaining wall/fence. Continental and Mr. and Mrs. Van Slyke may enter into an agreement to purchase the property or a land easement where the retaining wall/fence presently stands. The parties are free to negotiate those terms between themselves. B. If the retaining wall/fence is kept in its present location, Continental shall repair, at its expense, the broken blocks and all cracks in the retaining wall/fence. C. Repair the cracks in the coping brick edging, deck coating, control joint, and expansion joint as directed in the Corrective Work Order issued on February 2, 1999. 2. Close Citation and Complaint No. L99-0100, if these corrective actions are timely completed. SUBMITTED this 8th day of September, 1999.

George A. Schade, Jr. Administrative Law Judge

The original Recommended Decision and Order was mailed on September 8, 1999, for distribution to the parties, to:

Michael P. Goldwater Arizona Registrar of Contractors 800 West Washington, 6th Floor Phoenix, Arizona 85007

George A. Schade, Jr. -----------------------

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