ALJDEC decisions subject to certification as final

08F-H0324-ROC · Registrar of Contractors · 2009-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 30, 2009

APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its owner and qualifying party, Vernon Eaton. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant retained Respondent to accomplish specified landscape installation work on his new home. Complainant alleges that some of the work performed by Respondent is not only failing but, in addition, Respondent’s landscape installation work has caused extensive damage to the pre-existing retaining wall which was constructed on the property. The facts surrounding this claim are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Complainant’s home is on a hill overlooking the city of Kingman; b. Complainant purchased the home from Ron Miller (“Miller”), the general contractor who constructed the home. Miller was living in the home at the time of the purchase; c. The rear yard was not landscaped at the time of Complainant’s purchase. A large retaining wall had already been constructed on the rear of the property at the time Complainant purchased the home; d. Evidence of record showed that the home was constructed in an area where there was no building authority during the time of construction and thus, no governmental inspections for the project; e. Although Miller used a licensed contractor to construct the retaining wall, evidence presented at the hearing showed that the construction of the retaining wall was beyond the scope of the contractor’s license; f. As part of his landscape work, Respondent installed a tiered dry stack wall system of blocks on the rear yard and installed crushed rock throughout the various sections of the rear yard, including the section between one of his dry stack walls and the pre-existing retaining wall; g. Sometime after the landscape work was completed by Respondent and Complainant experienced a number of monsoonal type rain storms, the retaining wall began to fail and the dry stack walls began to shift and sink; h. After observing the damage to his landscape walls, Complainant filed the instant Complaint with the Registrar of Contractors. Upon receipt of the filed Complaint, the matter was assigned to one of the Registrar of Contractors’ inspectors who appeared at the hearing and presented testimony; i. After receiving the filed Complaint, the inspector convened a jobsite inspection. He examined the walls and determined that there was excessive failure on the retaining wall based on the excessive cracking that was running through the blocks themselves, not just in the joints of the blocks. In addition, he observed that the dry stack walls installed by Respondent had shifted; j. Notwithstanding the obvious stress suffered by the various walls, the inspector was unable to determine the cause of the wall failures and suggested that Complainant obtain a report from an engineer. Based on his inability to determine the cause of the wall failures during the jobsite inspection, he did not issue a Corrective Work Order; k. Evidence of record showed that Complainant obtained an engineer’s report subsequent to the jobsite inspection. The report was entered into evidence at the hearing as Complainant’s exhibit no. 2; l. The inspector reviewed the engineer’s report and testified that the report showed that the retaining wall failed due to the extra loads placed upon it by the dry stack walls and crushed stone installed by Respondent. After reviewing the engineer’s report, the inspector concluded that the retaining wall was not designed to contain the type of load presented by Respondent’s landscape work; m. The inspector testified about the concept of “accepting the surface.” He indicated that based on the concept of “accepting the surface” and the engineer’s report, had he issued a Corrective Work Order at that time, he would have advised Respondent that he had caused the damage and therefore, would be obligated to accomplish the necessary corrective work; n. Respondent testified that he made certain assumptions when he installed his landscaping materials. He assumed that the ground had been properly compacted and that the pre-existing retaining wall had been constructed pursuant to applicable code requirements; o. According to Respondent, he believes that the soil is not compacted adequately and the wall was not constructed properly. In his opinion, these factors are the cause of the shifting of his dry stack walls, along with the excessive cracking and movement present in the retaining wall; and p. Miller was also present at the hearing and testified that the retaining wall worked fine during the period of time that he lived in the home. He indicated that the problems with the wall did not occur until after Respondent installed his landscape work.

3. It is determined and held that the weight of the evidence of record was sufficient to support a finding that Respondent’s landscape work is indicative of substandard and unacceptable workmanship, as manifested by the shifting and sinking of the dry stack walls. Respondent accepted all of the existing grading and compaction as being adequate to support his landscape installation. In addition, it was adequately shown that it was Respondent’s landscape installation that caused the failure of the existing retaining wall.

4. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant Complaint was the only Complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

CONCLUSIONS OF LAW

1. It is a well established principle in construction law, and one generally applied by the Registrar of Contractors, that a contractor who places his work over prior work completed by another contractor, accepts the surface and/or conditions as being acceptable to accomplish a workmanlike result. Therefore, Respondent is effectively estopped to assert that it has no responsibility for the cracking of the retaining wall and the shifting/sinking of the dry stack walls due to the manner in which the retaining wall was constructed and the manner of soil compaction that was performed.

2. Respondent violated the provisions of A.R.S. § 32-1154A (7), and (3); namely Rule R 4-9-108.

RECOMMENDED ORDER

In view of the foregoing it is recommended, commencing on the effective date of the Order entered in this matter, that the Class C-21 license of Respondent shall be suspended until the Registrar of Contractors receives written proof that Respondent has complied with either one of the following conditions:

1. Accomplished appropriate and effective remedial work on the dry stack walls that have shifted and are sinking. In addition, Respondent must cause a properly licensed contractor to accomplish appropriate and effective remedial work on the retaining wall that has failed; or 2. Concludes other mutually acceptable arrangements with Complainant.

It is further recommended that if Respondent complies with one of the two conditions on or before the effective date of the Order entered in this matter, then the aforementioned license suspension shall not take place and in that event this Citation (No. H08-0324), together with the Complaint upon which it is based, shall be closed. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, May 4, 2009.

______________________________________ Mark A. Silver Administrative Law Judge

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

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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