ALJDEC

02F-S0023-ROC · Registrar of Contractors · 2002-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Monday, February 25th, 2002; 1:30 p.m. APPEARANCES: The complainants were represented by Mr. Stu Fauver, Attorney-at-Law. The respondent was represented by Mr. John Neal, Qualifying Party. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________ The administrative hearing of this matter was held by the Office of Administrative Hearings in Sierra Vista, Arizona. Testimony was heard and other evidence presented to the record, and, based on the entire record, the following Findings of Fact Conclusions of Law and Recommended Order are made. FINDINGS OF FACT 1. The respondent in this case, Modern Constructors, Inc., is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B- License number 105901. 2. The complainants herein, Daniel and Beatrice Gray, are a married couple residing in Duncan, Arizona. 3. Complainants contracted with the respondent in March of 2001, for the respondent to construct a retaining wall around complainants’ property. Complainants knew nothing about the proper construction methods for a retaining wall, and were relying on respondent’s expertise. Complainants paid respondent in full, the amount of $46,000.00. Respondent used no engineered drawings or specifications for the construction of the wall. 4. As construction progressed efflorescence in the blocks of the wall began to appear almost immediately. This, and the observations of one of the workers hired by respondent to construct the wall, Mr. Jim Venzor, came to the complainants’ attention, and concerned them. Because of what they had learned from Mr. Venzor, and seen of the wall, the complainants had serious concerns about its construction. 5. The complainants’ concerns were that the wall would fail due to its having inadequate footing and no drainage system. Later it would come to light, and be proven at the hearing, that the wall also lacked a bond beam, solid grouting, and the rebar that was installed was installed facing in the wrong direction to provide any strength. 6. Mr. Venzor testified at the hearing. He has 20 years of experience in laying block walls, including many projects such as this wall’s construction. He testified credibly that he observed the exposed footing before he laid the block, and even measured its width. He testified that it was a uniform 18” in width. Complainant Mr. Gray testified that he viewed the footing before construction began and it was 18” to 24” wide throughout. 7. Respondent testified that the footing was much wider than the complainants’ evidence, and testified the footers were from 18” to four feet wide. Respondent testified he had photographs to prove this point, but he searched in vain to find them before the hearing. 8. Mr. Venzor testified that no drainage system was installed to promote water runoff away from the wall. Respondent does not dispute this, but says complainants refused to pay for any drainage system. Complainant Mr. Gray testified that respondent told him the wall as it was built would have adequate drainage. 9. Mr. Thomas Shelton, a registered engineer, testified. He was brought in as a consultant by the complainants. He did not view the construction in progress, but rendered his professional opinion based on what he had been told by Mr. Venzor and his observation of the wall after construction. 10. The professional evidence from the engineer supports the finding that the wall, as constructed, will eventually fail. The testimony of the engineer was that the width of the footing should be two-thirds that of the height of the wall. Mr. Venzor testified that in his professional experience in helping to build these walls, he has concluded that the width of the footing should be one-half the height of the wall. This wall was eight-feet high in places. The warrant for such massive footing to a retaining wall is simply due to the function of such a wall. A retaining wall is to retain earth adjacent to it, as opposed to a free- standing wall, which has nothing on either side, and requires much less footing. Without the adequate footing, as the engineer and Mr. Venzor testified, the wall will eventually be unable to withstand the pressure exerted by the earth, and will fail. 11. The other major defect in this wall’s construction is the lack of any drainage system. Respondent constructed the wall using no other plans or specifications besides what the complainants told him they wished to be built, and they are not knowledgeable in the field of retaining wall construction. Respondent’s position was that the complainants did not tell him to build any drainage system for the wall so he did not. But as the evidence proved, a drainage system for such a wall is essential; otherwise the hydrostatic pressure will build, pressure against the wall will increase, and eventually (especially with inadequate footing) the wall will fail. Respondent, as the contractor on whom the complainants were relying for an expertly constructed wall, should have included an adequate drainage system. 12. The evidence also showed that the blocks were not reinforced or solid- grouted. The engineer testified that this should have been done to provide the wall with necessary structural integrity.

13. The engineer also testified that during his visual inspection he could see places in the wall that were already bulging outward, away from the earth behind it. Based on his information, observations and report, the engineer concluded that the wall was beyond remediation. The only corrective measure left would be to demolish the wall and rebuild it from the ground up. 14. Licensed contractor Mr. Robert P. Woodford testified for the respondent. He specializes in stone masonry. He visually inspected the wall and saw no signs of failure. He testified that he saw no reason to tear down the wall, but would recommend only some more caulking. Mr. Woodford conceded that he is not an engineer, and has no way to know whether the wall was built adequately or inadequately. 15. Also testifying was Mr. Danny Villalobos. Respondent had hired him to work on the wall, and he did work on the wall. He testified that he saw the width of the footing, and it was a uniform 18”. None of the footing was four feet wide. 16. Having the concerns they had, the complainants took them to the Registrar of Contractors in the form of an administrative complaint against the respondent, which they filed on August 8th, 2001. Registrar of Contractors Inspector Mr. Mike Nieves was assigned to the case. He conducted a job-site inspection on August 27th, 2001. By then the wall had been completed. Therefore the inspector could not verify what was inside or under the wall. He did see some stair-step cracks in the mortar joints, and some blocks had cracked all the way through. Inspector Nieves is not an engineer, so he was not comfortable to draw any conclusions about the engineering of the wall, or its structural integrity. 17. The inspector issued a Corrective Work Order to the respondent on September 6th, 2001. In it he ordered the respondent to correct the cracking in the mortar wall joints, and to insure that all the work on the wall conformed to the requirements of the Uniform Building Code for retaining walls, mortar, and hollow masonry units. Lastly, the inspector ordered that all work was to be done in a workmanlike manner. The CWO allowed the respondent 15 calendar days to comply, which was a reasonable amount of time. 18. The inspector testified that the respondent did make attempts to correct the grouting cracks, but that there still remains some additional cracking. This is consistent with the complainants’ testimony that the condition of the wall has worsened since last September when the inspector was present for the job-site inspection. 19. Notice is taken of the respondent’s prior license record with the Arizona Registrar of Contractors. CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. §32-1156, and A.R.S. §41-1092. 2. The respondent herein is charged in the instant Citation and Complaint with possible violations of A.R.S. §32-1154.A.7., 3., and 23. 3. A.R.S. §32-1154.A.3. prohibits a licensed contractor from violating any rule adopted by the registrar. The rule cited in the instant citation and complaint is A.A.C. R4-9-108, Workmanship Standards. The preponderance of evidence proved the facts supporting the conclusion that the respondent’s construction of the complainants’ retaining wall violated this rule, and therefore this statute. The wall had inadequate footing, no drainage system, improperly installed rebar, no bond beam, and no solid-grouting. 4. A.R.S. §32-1154.A.23. prohibits a licensed contractor from failing to take appropriate corrective action to comply with the contracting laws of the State of Arizona, without valid justification, within a reasonable period of time, after receiving written directive from the registrar to do so. The written directive in this case is the CWO. Respondent failed to comply with the CWO. The wall is not constructed in a workmanlike manner. 5. A.R.S. §32-1154.A.7. prohibits a licensed contractor from engaging in any wrongful or fraudulent act as a contractor which results in another person being substantially injured. There was no violation of this section independent of the violations already concluded. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the respondent’s Class B- License be suspended until such time as it has demolished the existing retaining wall at complainants’ home, and replaced it with a new retaining wall of the kind contracted for by the complainants, but built in accordance with engineered plans, including adequate footing and drainage system. It is further recommended that if the respondent accomplishes the above-described action, on or before the effective date of this order (40 days after the date of service shown by the registrar’s certification on the order), then the above-provided license suspension shall not take place, and Citation and Complaint S02-0023 shall be closed. Done this day, March 12th, 2002.

________________________________ GRANT WINSTON Administrative Law Judge

Original transmitted by mail this ____ day of March, 2002, to:

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

By _______________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488