ALJDEC

00F-L0021-ROC · Registrar of Contractors · 2000-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 6, 2000 APPEARANCES: Daniel J. Para, in his own behalf Mike Gilbertson, Respondent, in his own behalf ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings Of Fact

1. On August 12, 1998, the Complainant and Respondent entered a contract whereby the Respondent would build a masonry wall at the Complainant’s home in Lake Havasu City, Arizona. 2. The wall consisted of an east wall, a west wall, and two retaining north walls. The lower north walls is a retaining planter terrace wall. The walls were approximately five feet high and a total of 305 linear feet. They were built of 8x8x16 block with a textured light beige colored stucco. 3. The majority of the work was completed in December, 1998. The Complainant paid a total of $11,452.41. 4. The west side of the west wall was textured but not colored. This side faced the Complainant’s neighbor who wanted or required that his side of the wall should be painted with elastomeric rather than having colored stucco. In addition, the Respondent left exposed rebar at the two ends of the lower north wall. 5. A few months after the wall was completed, the Complainant noted staining on the face of the lower north terrace retaining wall. The area behind the wall is a planter and has dirt to nearly the top of the wall. The plants are watered by an irrigation drip system. 6. The Complainant contacted the Respondent who asserted that the planter area was over watered. 7. On August 12, 1999, the Complainant filed his complaint with the Registrar of Contractors (Registrar). 8. On September 7, 1999, Inspector Cliff Corlett (Corlett), inspected the Respondent’s work. During the inspection, Corlett dug about six inches below the ground level behind the planter retaining wall, but did not see any water sealant. On September 13, 1999, Corlett issued a Corrective Work Order (CWO), which required the Respondent to properly seal the retaining wall and repair the staining, remove the exposed rebar and finish the west side of the west wall. 9. The Respondent had a landscaper trench behind the retaining wall. Some of that soil was piled against the front of the upper retaining wall. The lower wall had been treated with a water repellent when initially built but the treatment began about six to eight inches below what ultimately became the grade level for the soil behind the wall. 10. According to the Respondent, he did not water proof to the top of the wall because this would detract from the planter’s appearance. The sealant-repellent is a dark tar like substance. The Respondent also testified that the planter was filled with too much dirt and he had to remove some of it. 11. On October 8, 1999, Corlett reinspected the wall and saw that it had in fact been treated. Corlett also noted that the grout on the back side of the wall had holes in the general area of the staining. 12. A landscaper gave the Respondent a quote of $1,000.00, to return the yard area to its prior condition. The Respondent suggested that the Complainant split the cost. The Complainant declined to do so and the Respondent did no further work. 13. In February, 2000, the Complainant hired other contractors to seal the wall, repaint the back and front wall and do the landscaping. A few plants had to be replaced. The total cost was $2,388.37. Conclusions of Law The allegations in the Citation and Complaint concern A.R.S.32- 1154(A)(3) violation of any rule, specifically A.A.C. R4-9-108 workmanship, (A)(7), a wrongful or fraudulent act resulting in substantial injury and (A)(23)failure to take appropriate corrective action. Prior to commencing the hearing, the Administrative Law Judge was informed by staff at the Registrar of Contractors Office in Lake Havasu City that the Respondent’s license was revoked on February 24, 2000. The hearing proceeded as scheduled with the Complainant present. The Respondent appeared approximately ten minutes late and the evidence which had been received to that time was reviewed on the record.

1. The Respondent contends that the wall was not sealed to a higher level for aesthetic reasons, that too much dirt was put in the planter, and that the planter area was over irrigated. The Complainant responded that the irrigation has not been changed and there have been no problems with staining since the corrective work was done by other contractors. In addition, Corlett’s testimony is considered credible. He observed voids in the grout on the backside of the wall. This was in the area of the staining. Although the Respondent is not responsible for putting too much backfill behind the wall, the Respondent is responsible for the staining caused by water leaking into and through the voids which caused the stains. This is a violation of A.R.S.§2-1154(A)(3)/A.A.C.R4-9-108. 2. The Respondent’s failure to do any corrective work is not justified. He was required to remove the exposed rebar but did not do so. The evidence also shows that although the wall had been sealed, voids in the grout needed patching and the stained wall needed correction. This was also not done. This is a violation of A.R.S.§32-1154(A)(23). 3. In light of the above facts and conclusions, no violation of A.R.S.§32- 1154(A)(7), is found. 4. The evidence did not sustain a finding that the Respondent was responsible for painting the neighbor’s wall. This issue should have been addressed by the Complainant with his neighbor, before the wall was installed. 5. The Respondent’s license has been revoked in another case and there is no point in attempting to impose additional discipline. 6. No determination is made of the appropriateness of the $2,388.37. which was paid by the Complainant for the corrective work. Recommended Order In view of the foregoing, it is recommended that the Respondent be found in violation of A.R.S.§1154(A)(3) and (A)(7); It is further recommended that because the license has been revoked, no further discipline, with the exception of any order based on a possible Recovery Fund action, be imposed against the Respondent or the license.

Done this day, March, 21, 2000

______________________________________ Allen Reed Administrative Law Judge

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

Registrar of Contractors Michael P. Goldwater 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