ALJDEC

99F-M1341-ROC · Registrar of Contractors · 2000-04-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 12, 2000

APPEARANCES: Complainants Alan and Katherine Wittig appeared on their own behalf; Daniel Potts, President and Qualifying Party, appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants Alan and Katherine Wittig bring this complaint against Respondent Potts Construction, Inc., because their house was built so that it encroaches upon the adjacent lot. The parties presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding that Respondent has violated the contracting statutes. FINDINGS OF FACT 1. In the Summer and Fall of 1998, Respondent built a house for Complainants in Queen Creek, Arizona. Before Respondent began the work, the land was undeveloped natural desert land. Complainant’s lot is basically rectangular shaped (although not precisely), with the North-South length about 600 feet and the East-West width about 230 feet. (See, Exhibits A and 2.) On the West side, the lot is bounded by a road. On the East side, Complainants’ lot abuts another lot of roughly the same dimensions. The adjacent lot is undeveloped. 2. The line that is the boundary between the two lots (Complainants’ East boundary and the neighbors’ West, hereinafter “the boundary line”) was not well marked. Neither Complainants nor Respondent had a survey done or marked the line before building began. Exhibit A is a rough drawing of the lot prepared by Respondent. Respondent submitted Exhibit A as a “Plot Plan” to the County authorities in order to get a building permit. Exhibit A is not to scale and was mainly intended to show placement of the house on the lot and location of the septic system. Exhibit A does, however, contain rough dimensions for placement of the house. In particular, it shows that the westernmost edge of the house was to be between 94 to 114 feet from the road (Mildred Street) on the western boundary of the lot. It also shows that the house is about 90 feet wide (West to East) and would be about 40 to 50 feet from the boundary line. Thus, the “Plot Plan” puts the house close to the middle of the lot and not in danger of encroaching on the boundary line. 3. The parties agree that the existing East end of the house, as built by Respondent, encroaches approximately 30 feet into the adjacent lot. This puts the westernmost edge of the house about 200 feet from Mildred Street and doubles the dimension shown on Exhibit A. 4. Complainants testified that they set up some small stakes and string on the undisturbed land, before Respondent began the work, to show Respondent how they wanted the house to face the mountains. They admitted that they did not measure it, but were just “eyeballing it.” This setup was destroyed when Respondent prepared the lot and the evidence does not show that Respondent relied on it for placement of the house, except the mountain view angle, although it might have had some small effect on Respondent’s placement of the house. 5. Complainants argue that Respondent should have made sure the house was built on the right property. Respondent argues that Complainants were obligated to get a survey performed or mark the boundaries, and took the risk in not having that done. 6. On August 2, 1999, the Registrar of Contractors issued a Corrective Work Order (CWO) directing Respondent to “resolve this matter” within 15 days. 7. The owners of the neighboring lot have brought an eviction action against Complainants. Respondent’s insurance company is involved and all interested parties are attempting to work this out. Both Complainants and Respondent feel that the best solution, rather than tear down and rebuild the house, is to purchase the adjacent lot. The parties in the court action are currently haggling over the price and percentages of responsibility. CONCLUSIONS OF LAW 1. Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). Complainants have met their burden with respect to some of the cited provisions. 2. Respondent has violated A.R.S. § 32-1154(A)(2), (7), and (3), namely Arizona Administrative Code (A.A.C.) R4-9-108, by failing to recognize that the house he was building was so far from Mildred Street and was not close to the location shown in Exhibit A, the “Plot Plan.”. 3. Although it may have been difficult to set the location of the house without markers for the boundary line, Respondent had a landmark by which to judge the location of the house, Mildred Street. Respondent prepared and submitted Exhibit A to the county. Thus, Respondent knew the rough dimensions of the lot. Respondent should have noticed that he was an undue distance from Mildred Street when he laid out the foundation. The difference is too remarkable. On the other hand, Complainants likely contributed to the problem by being unaware of the true property line. Nevertheless, Respondent, as the party with contracting expertise, should have noticed the problem and raised it to Complainants. 4. This tribunal finds that Complainants’ small amount of complicity does not preclude a conclusion that Respondent has failed to perform in a workmanlike manner, but views Complainants’ actions as mitigating circumstances. That, coupled with Respondent’s record showing no disciplinary actions since licensure in 1996, means that a short term of probation and additional bonding are appropriate sanctions for the violations. 5. The evidence does not support a conclusion that Respondent has violated A.R.S. § 32-1154(A)(23), failure to take appropriate corrective action in compliance with a CWO. This tribunal finds that the August 2, 1999, CWO could not have been reasonably complied with within 15 days. RECOMMENDED ORDER IT IS RECOMMENDED that Class B license No. 117945, issued to Potts Construction, Inc., be placed on probation for 60 days beginning the effective date of the Registrar’s Order. IT IS FURTHER RECOMMENDED that, before Respondent engages in further contracting activity, Respondent shall first post an additional surety bond, cash deposit, or alternative deposit for 12 months, in the amount of $2500. This bond or deposit shall be in addition to the surety bond or deposit otherwise required by law based on Respondent’s volume of business. Cash or alternative deposits shall be returned only if no claims are pending after the expiration of an additional two year period following the period specified above.

Done this 4th day of May 2000.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of May 2000, to:

Michael P. Goldwater ATTN: Joyce Armijo Arizona Registrar of Contractors 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