ALJDEC decisions subject to certification as final

04F-H0320-ROC · Registrar of Contractors · 2005-12-06

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 8, 2005, adjourned and reconvened on October 27, 2005 APPEARANCES: Complainants : LAW OFFICES OF DANIEL J. OEHLER, Daniel J. Oehler, Esq., represented Michael and Pamela Proctor. The Procters both appeared and testified. Respondent : Norling, Kolsrud, Sifferman & Davis, P.L.C., Ryan J. Lorenz, Esq., appeared for Avalon Custom Homes, L.L.C. Representing the entity was Lori Barker, Qualifying Party. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ A Hearing was convened to determine whether Respondent Avalon Custom Homes, L.L.C.[1] violated state law as has been alleged by Complainants Michael and Pamela Proctor and as cited by the Arizona Registrar of Contractors (hereinafter also “the Registrar” or “the ROC”). Evidence and testimony were presented over a two day period. Respondent Avalon Custom Homes, L.L.C. holds a Class B- (General Residential Contractor) license issued by the Registrar of Contractors. Complainants allege that Respondent is responsible for damage done to Complainants’ real property, the damage potentially posing threat to the structural integrity of the home thereon. The performance at issue was initiated pursuant to a contract between Respondent and Complainants’ neighbors, whereby Respondent acted as General Contractor on the project. Complainants seek only to have Respondent undertake remedial measures to bring conditions within minimum code compaction requirements. Based upon an examination of the entire record,[2] the following Findings of Fact are made, Conclusions of Law rendered, and DECISION AND RECOMMENDED ORDER issued:

FINDINGS OF FACT 1. Respondent’s license (No. 157428) was initially issued on August 7, 2000, the license was renewed on August 31, 2004, with viability through August 31, 2006. The license was in active status at the time that the construction work that is the subject of this Complaint was undertaken by Respondent. 2. Lori Anne Barker is the Qualifying Party identified on the Avalon Custom Homes, L.L.C. (hereinafter also, “the Contractor” or “the Licensee” or “Avalon Custom Homes ”) license. The other member of this limited liability company is Carolyn Barker. 3. Respondent Avalon Custom Homes, L.L.C. entered into a written contract with its client and property owners, the Pedersens, under the terms of which Respondent was to construct a single family residence located on an unsubdivided metes and bounds lot immediately adjoining and south of the Proctors’ existing residence. Respondent’s plans specified the installation of a below-grade basement which was originally designed to be constructed at the property line between the Proctor’s home and the Pedersen property. 4. To facilitate the accomplishment of their objective, the Pedersens and Respondent met with the Proctors in advance of the initiation of construction activity. At the meeting, Respondent sought and obtained consent from the Proctors to excavate on the Proctor property to an expanse approximating five (5’) horizontal feet north of the common property line. 5. The construction commenced in November 2002. In addition to their contract with Avalon Custom Homes, L.L.C., the Pedersons contracted with Labriola Masonry, Inc. to construct a retaining wall south of the property line and with Silver Butte Construction, Inc. to perform excavation and grading work at the site. 6. No evidence was provided indicative that a discussion occurred by and between the affected parties prior to commencement of the construction vis-a-vis the depth of the excavation thought necessary to construct the property-line subterranean and above-grade concrete block wall. 7. All agree that, in order to construct the wall in question, it was necessary for Respondent to excavate on the Proctor side of the property line to a width sufficient to allow the construction and completion of the concrete wall at the property line. It was further necessary to allow workmen engaged in the construction to have access to both the outside (Proctor side) and inside (Pedersen side) of the wall in an effort to accomplish the project. 8. Shortly after the excavation work had begun, soil, sand, and other materials from the Proctor property began sloughing or spilling downward and southward onto the Pedersen property. In an effort to prevent further sloughing, Avalon Custom Homes and Labriola Masonry hired Rock’s Crane Service to install preventative shoring. 9. To realize the shoring objectives, Respondent caused to be installed pilings that averaged four (4’) feet on center; the pilings were installed by Respondent’s subcontractor, Rock’s Crane Service. Each piling was a full length schedule 40, 3-inch iron pipe 21 feet long. Respondent further caused to be installed 3/4-inch particle board behind the pilings that was intended to act as shoring for the support of the cut bank and the Proctor house, the house located approximately ten (10’) feet north of the common property line and approximately five (5’) feet from the original cut face of the excavation. 10. The evidence is uncontroverted that, at one point in time, a portion of the particle board shoring collapsed. 11. Because a portion of the particle board shoring had collapsed, Respondent retained the services of Roger Leggett, P.E., a structural engineer with offices in Kingman, Arizona. Mr. Leggett prepared phase II structural shoring plans specifying the installation of schedule 40, 3-inch steel pilings, 21 feet in length, placed 2 feet on center. The specification dictated installation of twice as many pilings as had originally been installed by Respondent through its subcontractor Rock’s Crane Service. Moreover, instead of the use of the 3/4-inch particle board originally installed by Respondent for the actual shoring, Respondent’s structural engineer required the use of 1-inch plywood. 12. According to Roger Leggett, P.E., he did not personally observe the construction of the phase II (Leggett designed) shoring. However, during testimony, Leggett acknowledged that photographs[3] depicting what had been installed during phase II shoring reveal that the installation neither complied with nor corresponded to the shoring designed by him at the behest of Respondent. 13. Prior to Respondent’s abandoning its original construction plan, significant portions of the Proctor property eroded and/or sloughed into the cavity behind the shoring. The condition induced Respondent to remove the Proctor heating and cooling system from beside the home lest the entire heating unit also slough into the open cavity behind the shoring. 14. Ultimately, as a result of severe sloughing and erosion that had exposed underground buried Proctor utilities, along with underground portions of the Proctor residence, Respondent redesigned the Pedersen structure, thereby situating the house approximately five (5’) horizontal feet south of the Proctor/Pedersen property line. 15. In an effort to ameliorate conditions at the construction site relating to the sloughing and erosion, Respondent proceeded to contract with its subcontractor, Silver Butte Construction, to push material up against the phase II shoring and to dump material over the top of the shoring off the Pedersen property into the cavity behind the shoring on the Proctor property. 16. Respondent’s witnesses Steve Hickocks and Kenny Hudson, representatives of Silver Butte Construction, Inc. each testified concerning the backfilling efforts. The task was undertaken with loaders and excavators.[4] Both Mr. Hickocks and Mr. Hudson testified that no compaction tests were conducted, at least in their presence, regarding the backfill that they performed. 17. During their testimony, Roger Leggett, P.E., Mr. Hudson, Mr. Hickocks, and Mark Labriola of Labriola Masonry, each acknowledged, upon questioning in conjunction with the presentation of Complainants’ photographic exhibits,[5] that the depth of the excavation was 12-14 feet.[6] . . . 18. Upon making the decision to abandon the original construction plan and prior to Silver Butte Construction’s efforts to backfill against the shoring, Respondent was requested on multiple occasions by Complainants to remove the plywood, particle board and steel pilings that had been installed on Complainants’ property. Rather than accommodating the request, Respondent directed its subcontractor, Silver Butte Construction, to proceed with its backfilling and to leave the construction debris on the Proctor property. No documentation, geotechnical observation, or other data of any type was prepared by or at the behest of Respondent to support its backfilling program. 19. Thereafter, during a meeting whereat resolution efforts were attempted concerning the sloughing and erosion problem, it was agreed by and between the Proctors and Respondent that the Proctors would accept engineering recommendations if those recommendations were fully approved by Respondent’s geotechnical engineers (Southwest Technology), Respondent’s structural engineer (Roger Leggett, P.E.), and Larry Morse, P.E., of A-N West Consulting Engineers. The hope was that, in doing so, a cure short of removing the buried debris and compacting the area might be discovered. 20. Recommendations were ultimately submitted by Roger Leggett that required grouting of the 3-inch steel piling so as to eliminate any possibility that voids would occur when the pilings had rusted through.[7]

21. Further, Southwest Technology, through its engineer Byron Wayne Anderson, P.E., offered to Respondent a written recommendation that the 1- inch plywood shoring be left in place below grade, except for the upper two (2’) feet, provided that compaction of the backfill material within two (2’) feet of the shoring would meet or exceed 95% relative compaction.[8] 22. In addition to the opinions of Leggett and Anderson, Larry Morse, P.E., of A-N West Consulting Engineers, recommended that chemical grouting or cement grouting of the disturbed soils behind the shoring be accomplished.[9] 23. In the face of and despite the three (3) recommendations, Respondent has refused to implement their terms.[10] 24. Determining not to implement its own engineering recommendations, as well as those of A-N West Consulting Engineers, Respondent contracted with Southwest Technology to conduct an investigation of the “undocumented fill” along the north side of 2777 Camino Del Rio (the Proctor property).[11] Bore sites 1-3 were located approximately five (5’) feet inside the Proctor property line according to the testimony of Larry Morse, P.E., who was on site at the time the bores were conducted. Results from the bores indicated that the majority of the soils encountered were “loose” to “very loose” and that, in one instance at an elevation of 8 feet inches below the surface, the split spoon fell under its own weight through an apparent void created by the partially collapsed wooden shoring. Revealingly, a sample of the wood was, itself, retrieved in the split spoon of the drill rig. In his testimony, Larry Morse, P.E., interpreted the terminology “very loose,” “loose” and “medium” in this context to represent 0% -15%, 15% - 35%, and 35% - 65% relative density of the soils, respectively.[12] This unrebutted testimony of Mr. Morse, along with the findings of Respondent’s engineer, substantiate that a compactive density of significantly less than that required by the UNIFORM BUILDING CODE of 1997 (90%), the City of Bullhead City’s requirement (95%), and Respondent’s own geotechnical engineer’s requirement (95%)[13] existed at virtually every elevation down to the termination of the bores at 14 feet. 25. Ms. Lori Barker, Avalon Custom Homes, L.L.C.’s Qualifying Party, testified at the Hearing. A review of Ms. Barker’s testimony, when juxtaposed to that of various witnesses who also testified, as well as up against relevant documents and exhibits touching identical issues, creates concern for Ms. Barker’s reliability, accuracy, knowledge, dependability and truthfulness on the issues presented. The impeachment of Ms. Barker’s testimony by Complainants was set forth in their CLOSING STATEMENT and, upon confirmation of its accuracy, reveals that, in the least, Ms. Barker was either not fully-informed or was inattentive as the facts and conditions at issue developed.[14] 26. The ROC Complaint that led to the Hearing was filed by the Proctors on June 1, 2004. In the Complaint, the Proctors alleged that Avalon Custom Homes, L.L.C. had left debris in and around their property during excavation activities attendant construction of the Pedersen project. The Licensee’s refusal to remove the debris and/or perform compaction of the soils on the Proctors’ property allegedly subjected the Proctors to current and future damage of their property.[15] 27. The CITATION AND COMPLAINT issued by the Registrar of Contractors on August 13, 2004 cited Avalon Custom Homes for violation of A.R.S. § 32-1154(A)(3) and (7) because of the allegations contained in the Complaint.[16] . . . 28. The written ANSWER to the Proctors’ Complaint, filed by Avalon Custom Homes, L.L.C. on August 25, 2004, generally and specifically denied the allegations of the Complaint, while affirmatively denying having damaged the Proctors’ property.[17] . . . THE ISSUES PRESENTED Is Avalon Custom Homes, L.L.C.’s abandonment of building material and debris on and under the Proctors’ property violative of workmanship standards? Yes. Has Avalon Custom Homes, L.L.C. complied with the 1997 UNIFORM BUILDING CODE requirements concerning excavation, fills, compaction and testing procedures? No. Has Avalon Custom Homes, L.L.C. departed from or disregarded the 1997 UNIFORM BUILDING CODE and/or the City of Bullhead City’s requirement for 90% or 95% compaction of any excavated area? Yes. Has Avalon Custom Homes, L.L.C. acted wrongfully in its construction at the Pedersen/Proctor site by disregarding the 1997 UNIFORM BUILDING CODE and/or the City of Bullhead City’s requirement for 90% or 95% compaction of any excavated area?? Yes. If so, has Avalon Custom Homes, L.L.C.’s wrongful act caused substantial injury to the Complainant Proctors? Yes. . . . ANALYSIS 29. Respondent Avalon Custom Homes, L.L.C. first defends that it is Silver Butte Construction and Labriola Masonry that ought to be held responsible for any deficiencies in the construction because Avalon Custom Homes allegedly neither hired nor supervised the shoring efforts. Although Avalon Custom Homes acknowledges that “it volunteered its efforts and engaged engineers after the fact, the Proctors’ [C]omplaint should have been directed at Silver Butte and/or Labriola, rather than Avalon [Custom Homes].”[18] 30. Respondent’s defense based upon an asserted lack of privity is unavailing. For one thing, the argument was not developed by Counsel. Further, as Avalon Custom Homes acted as General Contractor on the Pedersen project and as Silver Butte and Labriola were engaged by the Pedersens and performed with consent of and, to a degree, at the behest of Avalon Custom Homes,[19] the latter cannot assert privity as a defense to a Title 32 disciplinary Complaint. 31. Respondent Avalon Custom Homes next defends that [its] abandonment of the completed shoring complied with workmanlike standards and the applicable provisions of the UNIFORM BUILDING CODE.[20] 32. Larry Morse, P.E., R.L.S., is a professional civil engineer and registered land surveyor. At the Hearing, Avalon Custom Homes, L.L.C., through Counsel, challenged Mr. Morse’s credentials and qualifications to opine and to provide expert testimony regarding geotechnical analysis. Arizona’s Administrative Code, Title 4, Chapter 30, Section 221(A)(3) (A.A.C. R4-30-221(A)(3)) delineates the Arizona Board of Technical Registration’s on the scope and activities of a civil engineer. Specifically, the Administrative Code reads as follows:

3. Civil: Consultation, investigation, evaluation, planning, design, location, development, and review of construction for highways, streets, transportation systems, drainage and flood control structures, surface and subsurface hydrologics, sewers, tunnels, railroads, geotechnical analysis, waterfronts, water and wastewater systems, water power and supply apparatus, wells, pumps, bridges, dams, irrigation structures, water purification apparatus, incinerators or site fire protection systems. (Emphasis added.)

Offered into evidence was an outline of Mr. Morse’s experience and technical training involved in and concerning the testimony he provided, including with specificity his field and educational training experience. His background, training, and experience qualify him to give opinion on geotechnical analysis. His testimony was probative of the issue and was accorded the weight to which it is due.[21] 33. Gerald Curry, President of Southwest Technology, Inc., a “field technician” also provided testimony concerning his background and area of experience. Mr. Curry related that he is not a licensed engineer; he is a technician and owner of Southwest Technology. Mr. Curry is the individual who completed all site inspections of the Pedersen property and, in conjunction with Mr. Morse, conducted the bore sampling on the Proctor property on or about August 13, 2004. 34. Mr. Curry’s field work was later reviewed and stamped by Byron Wayne Anderson, P.E. Mr. Anderson’s testimony and his sealed reports reflect clearly that the excavation that took place by Avalon Custom Homes of the Proctor property and the backfill placed thereon by Silver Butte Construction, under the direction of Avalon Custom Homes, was not compacted and generally “loose” and/or “very loose.” Avalon Custom Homes’ engineer, Mr. Anderson, came to the written conclusion that the area in question would need to be backfilled “in accordance with the UNIFORM BUILDING CODE of 1997 requirements” (90%). To do so would make the area “suitable for construction purposes.” 35. Roger Leggett, P.E., testified as an expert in this area of structural engineering. Mr. Leggett’ related that he had been requested to produce an engineered shoring system after the initial shoring built by Avalon Custom Homes, L.L.C. had failed. Mr. Leggett, who was presented as Avalon Custom Homes’ expert structural engineer, clearly testified that a review of the photographs produced by the Proctors at the Hearing revealed that Avalon Custom Homes has failed to construct the shoring in accordance with his engineered plans. 36. The provisions of the 1997 UNIFORM BUILDING CODE are controlling in this matter. This fact is undisputed. Section 3301.2 requires a builder to protect adjoining property from settlement or caving. It is uncontroverted that removal of the completed shoring at the site poses a risk to both structures. 37. However, Respondent points out that “[t]he Procter’s own engineer, Mr. Morse, concurred with the abandonment of shoring as an acceptable course of action.”[22] 38. The 1997 UNIFORM BUILDING CODE § 3301.2 reads, in part, as follows:

PROTECTION OF ADJOINING PROPERTY. The requirements for protection of adjacent property and depth to which protection is required shall be defined by prevailing law. Where not defined by prevailing law, the following shall apply: any person making or causing an excavation to be made to a depth of 12 feet (3658 mm) or less below the grade shall protect the excavation so that the soil of adjoining property will not cave in or settle, (Emphasis added.)[23]

39. Whether § 3302 of the 1997 UNIFORM BUILDING CODE has application to the facts and circumstances of this Complaint is problematic as the section references the removal of wood from under a building in preparation of the site for construction. No evidence was presented indicative that Avalon Custom Homes, or any other Contractor involved, left casual wood under the Proctor home as a result of excavation.[24] The section provides:

All wood forms that have been used in placing concrete, if within the ground or between the foundation sills and the ground, shall be removed before a building is occupied or used for any purpose. Before completion, loose or casual wood shall be removed from direct contact with the ground under the building.

40. Another provision of the 1997 UNIFORM BUILDING CODE, § 3313.2, provides, in part:

When fill is to be placed over a cut, the bench under the toe of the fill shall be at least 10 feet wide, but the cut shall be made before placing the fill and acceptance of the soils engineer or engineering geologist, or both, as a suitable foundation for fill.

And § 3313.4 requires:

COMPACTION. All fill shall be compacted to a minimum of 90% of maximum density.

41. Further, 1997 UNIFORM BUILDING CODE § 3317 deals with the required grading inspection. Section 3317.3 mandates:

SOILS ENGINEER. The soils engineer shall provide professional inspection within such engineer’s area of technical specialty which shall include observation during grading and testing for required compaction. The soils engineer shall provide sufficient observation during the preparation of the natural ground and placement and compaction of the fill to verify that such work is being performed in accordance with the conditions of the approved plan and the appropriate requirements of this Chapter.

Respondent asserts that Southwest Tech and Mr. Leggett satisfied these requirements in their involvement and advisements.[25] 42. Respondent’s final defense is that any damage to the Proctor property that has ensued in the construction constitutes a de minimis trespass that was and remains unavoidable. A de minimis fact or thing is one that is regarded trifling and so insignificant as to justify the disregard thereof.[26] As will be seen below, the effect that Respondent‘s construction activities at the Pedersen property has had on the Proctors is not a trivial matter. CONCLUSORY FACTS 43. The weight and sufficiency of the evidence persuades that there were several violations of the 1997 UNIFORM BUILDING CODE in Avalon Custom Homes, L.L.C.’s construction at the Pedersen/Proctor site. While it is true that Avalon Custom Homes entered upon the Proctor property with the owners’ consent for temporary use, the consent was thereafter withdrawn. The Proctors demanded, before the Pedersen house slab and vertical construction were commenced by the Licensee, that the building and construction materials, portions of which were at least five (5) feet onto the Proctor property, be removed. It was further demanded by the Proctors that the areas of excavation be compacted in compliance with, at a minimum, 1997 UNIFORM BUILDING CODE requirements. The Licensee has refused to remove its material from the Proctor property and/or to comply with the requirements of the 1997 UNIFORM BUILDING CODE’S compaction requirements. Moreover, the Licensee has refused to comply with the minimum requirements of its own structural and geotechnical engineer’s vis-a-vis the issue of leaving the foreign debris in place. The Licensee has refused to comply with the recommendations of A-N West Consulting Engineers regarding chemical and/or cement grouting of the uncompacted and undocumented backfill areas on the Proctor property. 44. The position that Avalon Custom Homes, L.L.C. has maintained on the matter is intentional and unworkmanlike and, therefore, wrongful under A.R.S. § 32-1154(A)(3) and (7). Avalon Custom Homes, L.L.C.’s wrongful act has caused the Proctors substantial injury.[27] The harm to the Proctors by Avalon Custom Homes, L.L.C.’s actions and inactions in the matter is actual. 45. The Complainant Proctors have assumed a reasonable posture in the dispute. They have not filed a lawsuit seeking damages for trespass, structural damage or other tortuous conduct that might possibly be alleged in good faith to have been committed by this Licensee. The Complainants seek only the reasonable engineering and recommended relief from the conditions created by Avalon Custom Homes, L.L.C.’s actions and inactions. The Licensee ought to be required to conform its work to the identified standards.[28]

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors charged Respondent with possible violations of A.R.S. § 32-1154(A)(3) (and A.A.C. R4-9-108, the workmanship rule) and (A)(7). Those statutory sections require that a holder of a license or a person listed on a license not commit the following:

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.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter under the authority of A.R.S. § 32-1101, et seq., a section that enables the Registrar to impose disciplinary sanctions against licensees for violations of A.R.S. § 32-1154. Avalon Custom Homes, L.L.C. is a licensee. 2. The burden of persuasion generally at an administrative hearing falls to the party asserting a claim, right or entitlement, or an Agency seeking to impose a penalty.[29] Further, the standard of proof is that of the “preponderance of the evidence”.[30] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “. . . more likely true than not.”[31] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion, in this case Complainants Proctor, is more probably correct on the issue(s) in dispute. 3. Observing these standards, Complainants have satisfied their burden, by a preponderance of the evidence, that during the construction at issue, Respondent Avalon Custom Homes, L.L.C. violated the statutory and regulatory provisions cited in the Registrar’s CITATION AND COMPLAINT. It has been demonstrated that Avalon Custom Homes, L.L.C. acted wrongfully in the construction by not conforming its workmanship to the identified standards. It has abandoned shoring on the Proctor property thereby compromising the integrity of a portion of the Proctors’ soil. By refusing to remediate the condition, Avalon Custom Homes, L.L.C. has materially injured the Proctors.

RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that the Registrar of Contractors enter an Order finding Avalon Custom Homes, L.L.C. in violation of A.R.S. § 32-1154(A)(3) and (7) as charged in the CITATION AND COMPLAINT.

IT IS FURTHER RECOMMENDED that the Registrar of Contractors suspend Lic. No. 157428 until the parties provide written proof to the Registrar that Avalon Custom Homes, L.L.C. has brought conditions at the Proctor property within standards. In the event of the certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty days from the date of that certification.

Done this 6th day of December 2005.

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this 6th day of December 2005 to:

Israel G. Torres, Director Registrar of Contractors Att’n: Alicia Guerra 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] http://www.azroc.gov/clsc/AZROCLicenseQuery

[2] The record consists of those documents found within the Agency’s case file, the contents of which the Administrative Law Judge has accorded Administrative notice, the exhibits offered by the parties, respectively, and the digital record of the proceedings under A.A.C. R2-19-121. Complainants offered one-hundred-ten (110) exhibits (including numerous pe- hundred-ten (110) exhibits (including numerous photographs.) Respondent offered thirty-four (34) exhibits. Complainants’ exhibits are identified as Π plus a numeric designation; Respondent’s exhibits are marked by Δ plus the numeric designation. Each of the exhibits offered was received. In addition, Complainants filed a CLOSING STATEMENT on December 1, 2005; Respondent a MEMORANDUM AND PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW on December 1, 2005.

[3] Complainants’ Exhibit No. 41 (consisting of 46 photographs). [4] Depicted in Complainants’ Exhibit 41 (the 46 photographic exhibits that have been admitted into evidence)

[5] Id.

[6] Note that Complainants’ Exhibit 25 reflects an engineered excavation of inches, plus 12 inches plus 9 feet 6 inches, for a total of 11 vertical feet, and that the support pilings would then extend an additional 10 feet inches.

[7] See Complainants’ Exhibit 25.

[8] See Complainants’ Exhibit 26.

[9] See Complainants’ Exhibit 34.

[10] At the administrative Hearing, the Proctors affirmed that any and all of the three requirements recommended in ¶¶17, 18, and 19, above, continued to constitute remedies acceptable to them, despite the fact that the plywood shoring, the particle board shoring and the steel columns would remain buried on their property.

[11] See Respondent’s Exhibit Nos. 37 and 38.

[12] See Complainants’ Exhibit 50.

[13] See Respondent’s Exhibit 24.

[14] Compare the following:

Licensee’s Testimony

1. Lori Barker: “The original shoring was engineered prior to its installation by Roger Leggett, Structural Engineer.” ___________________________________ Expert/Licensee Subcontractor and Other Witnesses’ Testimony

1. Roger Leggett, P.E., Structural Engineer, testimony: “I did not engineer the original shoring.”

Licensee’s Testimony ________________ 2. Lori Barker: “The structural engineer, Roger Leggett’s shoring design was constructed to the engineer’s specifications.”