ALJDEC

00F-G0319-ROC · Registrar of Contractors · 2000-08-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 24, 2000. APPEARANCES: Complainant, Frank Long, appeared personally. Respondent was represented by its sales manager, Richard Campbell. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Complainant purchased his residence from Palacia Homes, a residential general contractor. 2. Palacia Homes subcontracted the construction of the block wall for Complainant’s property to the Respondent. 3. In August, 1996, the property’s rear and West perimeter walls were constructed by Respondent. 4. In March, 1997, the property’s East interior common wall and front returns were constructed by Respondent. 5. The walls are constructed of nominal 4” post-tensioned Proto II masonry with a dip footing foundation system. The walls are approximately 5’ 4” and 6’ 0” in height. A source of support for the walls is the use of bearing plates connected by rods to the setting pad. 6. It is Respondent’s normal business practice, and one recommended by its structural engineer, Charles Atkinson, P.E., that only one course of block be placed above the bearing plates. 7. There is credible evidence that the post-tensioned system of Complainant’s rear wall performs as designed. 8. Complainant’s backyard is located directly north of a soft-ball field. It is not uncommon for soft-balls to land in his backyard. There is credible evidence that individuals have climbed over Complainant’s South wall to retrieve balls hit into the backyard. 9. Complainant filed a complaint with the Registrar of Contractors alleging that Respondent violated provisions of the State’s contracting laws in constructing the walls. 10. In response to the filed complaint, the Registrar’s assigned inspector performed a jobsite inspection to view the areas of alleged deficient workmanship. That inspection resulted in the issuance of a Corrective Work Order dated March 7, 2000, requiring Respondent to perform remedial work to specified areas of deficient workmanship. 11. Respondent is found to have complied with the Registrar’s Corrective Work Order. 12. Notwithstanding Respondent’s compliance with the Registrar’s written directive, it is determined that there are additional areas of deficient workmanship which Respondent is deemed responsible for correcting to minimum workmanship standards. The top course of Complainant’s wall is experiencing an extraordinary high degree of loose blocks. Respondent’s structural engineer recommends “rebuilding the top course using 20 gage x 8” long, corrugated veneer ties at 16 inches on center between the top course and the next course…(t)he veneer ties should be mortared into each course.”[1] 13. There are various areas of vertical and stair step cracking of the walls, especially the West wall. Respondent is found to be responsible for repairing all cracking that exceeds minimum workmanship standards. 14. The additional top course on the West wall does not meet the design intent of the Proto II design. The top course should be removed. 15. There is insufficient evidence of record to support a finding that the setting pads require corrective action. On the contrary, there is credible evidence that the setting pads have acceptable torsional safety factors. 16. The Complainant’s West return wall does not meet minimum workmanship standards. That wall can be easily moved by a person. Respondent is determined to be responsible for removing the existing wall and replacing it to minimum workmanship standards. 17. Respondent’s above-described deficient workmanship constitutes a wrongful act which has substantially injured Complainant. 18. Any allegation contained in Complainant’s amended complaint that is not specifically addressed above is deemed to lack credible evidence of record to support a finding of a violation of the State’s contracting laws.

CONCLUSIONS OF LAW

1. The evidence of record is sufficient to establish that Respondent violated the provisions of A.R.S. § 32-1154(A)(7) and (3); namely Rule R4- 9-108. 2. The evidence of record is insufficient to establish that Respondent violated the provisions of A.R.S. §32-1154(A)(23).

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter that Respondent’s Class C-31 license be suspended until the Registrar of Contractors receives written proof that Respondent has properly accomplished remedial repairs to the areas described in the above Findings No. 12, 13, 14 and 16. It is further recommended that if Respondent properly accomplishes the aforementioned corrective work on or before the effective date of the Order entered in this matter, then the above-provided license suspension shall not take place and the Citation and Complaint in this matter shall be closed. Done this day, September 13, 2000

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater, Director Attn: Joyce Armijo 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