ALJDEC decisions subject to certification as final

08F-H0211-ROC · Registrar of Contractors · 2009-03-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 12, 2009. APPEARANCES: Jon Wilcox appeared personally and was represented by his attorney, John C. Churchill, Esq. Jorge Arturo Barrios appeared personally and was represented by his attorney, Elana C. Spears, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT 1. Jorge Arturo Barrios, doing business as Mohave Desert Fencers (“Respondent”), is the holder of License No. 194747, a Class K-14 contracting license, issued by the Registrar of Contractors (“Registrar”). 2. A Class K-14 contracting license is a dual commercial and residential fencing license. A Class K-14 licensee may perform the scopes of work permitted by the commercial L-14 Fencing and residential C-14 Fencing licenses. 3. The scope of work permitted by the residential C-14 Fencing license is the following: Installation and repair of fencing and low voltage electrical fence protective devices of less than 25 volts, 100 watts, or both. Concrete masonry units cannot exceed 6 feet in height excluding footings, nor can they be used for retaining wall purposes. This scope includes the C-14R subclassification.[1]

4. Jon Wilcox (“Complainant”) is the owner of a residence located at 3053 Mallory Loop, Kingman, Arizona. 5. Scholl Homes was the developer of Complainant’s residence, which he purchased in May 2006. 6. Scholl Homes hired Woods Custom Finish as its general contractor for the construction of homes within the Mission Estates subdivision, which included Complainant’s home. 7. Scholl Homes hired Respondent to construct concrete masonry unit walls in the Mission Estates subdivision. 8. In 2005, Respondent constructed a wall running across the back of Complainant’s property that continues as a rear wall for adjoining neighbors. 9. When Complainant moved into his residence, his rear wall was retaining fill on the adjoining rear neighbor’s property. The adjoining rear neighbor’s property is elevated in height above Complainant’s property. 10. Within approximately two weeks after moving into his new residence, Complainant notice water seepage in his stucco rear retaining wall. The stucco had become discolored. 11. Complainant contacted the general contractor, who offered to repaint the wall. 12. The rear neighbor’s irrigation system and a child’s swimming pool were the source of the water coming through the wall. 13. On or about November 27, 2007, Complainant filed a written Complaint with the Registrar, alleging the following deficiencies in Respondent’s construction of his rear wall: Retaining wall and fence not to code, nothing close to plans they filed with the City. Non-existent footing, excessive gap between block, did not use the correct size block, not staggered, no weep holes or proper drainage. Code requires there be no surface load within twice the height of the wall, not even close.

14. The Registrar designated Complainant’s Complaint as Case No. H08-0211. 15. The Registrar issued a Citation and Complaint in Case No. H08-0211 alleging possible violations by Respondent of A.R.S. § 32-1154(A) (2), (7), (17), (23) and (3), specifically A.A.C. R4-9-108. 16. The Registrar forwarded Case No. H08-0211 to the Office of Administrative Hearings, an independent agency, for formal hearing. 17. Respondent credibly testified that the wall he constructed was not intended to retain more than four feet of fill. He had checked with the local building authority and was told that a permit was not needed to construct the wall unless it retained more than four feet of fill. 18. At the time Respondent constructed the walls in the subdivision, there was no fill in place against the walls. No homes had been constructed at the time the walls were built. 19. The wall constructed by Respondent is a retaining wall. It now retains more than four feet of fill. 20. Respondent’s Class K-14 contracting license does not permit him to construct retaining walls. Therefore, Respondent exceeded the scope of his contracting license by constructing the retaining wall in Complainant’s backyard. 21. After Respondent completed the portion of the retaining wall in Complainant’s backyard, either the developer and/or the general contractor caused the fill to be placed behind the wall to level the ground elevation on the adjoining rear property. That fill is greater than four feet. Respondent is not responsible for the height of the fill. 22. Because the developer and/or general contractor caused fill higher than four feet to be placed behind Complainant’s retaining wall, the wall required a building permit from the local building authority. However, Respondent is determined not to be responsible for the permit because he constructed the wall to retain up to four feet of fill on the adjoining rear property’s side of the wall. 23. There is no evidence that Respondent submitted plans to the local building authority. Respondent did not submit plans because he had been told that a permit was not required for a wall retaining four feet or less. 24. There is a dispute as to whether the 1997 UBC or the 2001 IBC masonry wall specifications were applicable for the construction of Complainant’s retaining wall. However, there is no dispute that the masonry wall specifications for the construction of Complainant’s retaining wall required a reinforced footer with a minimum cross- sectional dimension of 12” X 12”. 25. Complainant exposed the retaining wall’s footing in several locations. An investigation of the exposed footings revealed that the concrete footing was 6” in depth, rather than the required 12” in depth. 26. An inspection of the exposed rebar revealed sections of rebar laying directly on the dirt ground, rather than encased in concrete as required. 27. Respondent hired Bruce H. Bosshard, P.E. of B & B Engineering, LLC to perform an inspection of the rear retaining wall. Mr. Bosshard is a professional engineer licensed by the Arizona State Board of Technical Registration. 28. Mr. Bosshard performed an inspection of the rear retaining wall on March 1, 2008. 29. On March 14, 2008, Mr. Bosshard prepared a written report containing his findings after performing the investigation. 30. Mr. Bosshard opined that water was weeping through the wall due to lack of proper drainage. He concluded that the lack of proper drainage would “eventually cause wall failure and is a hazard.” 31. Mr. Bosshard strongly recommended “that the wall be demolished and replaced with a properly designed retaining wall.” Mr. Bosshard concluded that the wall is a safety hazard. 32. Complainant failed to present credible evidence that Respondent used incorrect size block in the construction of Complainant’s retaining wall, as alleged in the Complaint. 33. There is no credible evidence that the bottom row of block needed to be staggered, as alleged in the Complaint. 34. The cracking in Complainant’s retaining wall is found to be in the stucco applied to the concrete masonry unit wall, but not in the block itself. 35. A review of the Registrar’s official records reveals that Respondent’s contracting license was suspended by operation of law for nonrenewal on June 1, 2008. Complainant’s Complaint is the only one listed against the license.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 32-1154(C), the suspension of Respondent’s contracting license does not deprive the Registrar of jurisdiction to impose disciplinary action against the license for proven violations in this case. 3. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 4. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (2), as cited in the Citation and Complaint issued by the Registrar, for failing to obtain a building permit for constructing Complainant’s retaining wall. Complainant failed to present credible evidence that the retaining wall was designed to retain fill greater that four feet high, thereby requiring a building permit. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as cited in the Citation and Complaint issued by the Registrar, for failing to construct the footing for Complainant’s retaining wall per specifications. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (17), as cited in the Citation and Complaint issued by the Registrar. The construction of retaining walls is not within the scope of Respondent’s Class K-14 license. 7. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (23), a cited in the Citation and Complaint issued by the Registrar. No Corrective Work Order was issued in this matter. 8. Respondent did violate the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar. The basis for this conclusion is Respondent’s failure to construct the retaining wall foundation in Complainant’s backyard to minimum workmanship standards. 9. Respondent did violate the provisions of A.R.S. § 32-1154(A) (7), as cited in the Citation and Complaint issued by the Registrar. While Respondent is not responsible for the height of the fill behind the retaining wall, Respondent’s failure to construct the retaining wall footing per specifications and in a workmanlike manner resulted in substantial injury to Complainant. There is credible evidence that extensive remedial repairs will be necessary to assure the safety of the retaining wall in Complainant’s backyard. Those repairs must be performed by a properly licensed contractor.

RECOMMENDED ORDER Respondent’s License No. 194747 shall be revoked on the effective date of the Order entered in Case No. H08-0211. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of that certification. Done this day, March 4, 2009

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] The C-14R subclassification covers fencing other than masonry.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826