ALJDEC decisions subject to certification as final

2010A-1039034-ROC · Registrar of Contractors · 2010-06-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 3, 2010 at 8:15 a.m. APPEARANCES: The Complainants. Timber Rock Homes LLC and Bill and Patricia Pierce, appeared through their attorney, Tony S. Cullum. The Respondent appeared through its attorney, Andre E. Carman. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. The Respondent Keith Smith Excavation L.L.C. Dba K S Excavation (LLC) is the holder of a Class KA License issued by the Registrar of Contractors. 2. These two matters were consolidated for hearing because the two matters address the same issues of workmanship and involve identical witnesses. 3. This is a residential matter where the Respondent constructed rock retaining walls at the residence of Bill and Patricia Pierce. 4. Complainant Timber Rock Homes LLC functioned as the general contractor for the construction project. 5. The rock retaining walls failed and Bill and Patricia Pierce notified their general contractor, Timber Rock Homes LLC, and the Respondent of the failure of the rock retaining walls. 6. When the Respondent failed to comply with the Complainants’ demands to properly correct the failed rock retaining walls the Complainants, Bill and Patricia Pierce and Timber Rock Homes LLC filed formal Complaints against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaints, an assigned Agency Inspector conducted an on-site inspection and issued written Corrective Work Orders for each complaint directing the Respondent to perform designated corrective work on the failed rock retaining wall. 8. The Corrective Work Orders provide, in pertinent part, as follows: The contractor shall take necessary and proper action to comply with the requirements of Yavapai County regarding a building permit for remedial work to be performed on these retaining walls, associated drainage swales and non-compacted backfill. The contractor shall comply with engineered detail 101, provided by Core Structure Group and a provision of the building permit when remedial actions are taken. The contractor shall make the appropriate corrections delineated in the Core Structure Site Visit Report: Addendum #2, dated 11-24-09, regarding the construction of the walls (Copy enclosed). The contractor shall take necessary and proper action to correct these deficiencies listed in the homeowner’s complaint: 1. Obtain the necessary and required permits from Yavapai County for the remedial work to be done. 2. Remove and salvage the 1” landscape rock and fabric, and reinstall after completing the repairs. 3. Raise the upper wall approximately 2’ at the northeast corner and level it back to the west end to establish a finished grade at the same level as the existing yard. *This will involve an engineered directive.* 4. Construct the wall per engineered specifications. 5. Compact the soil that was removed and replaced. 6. Install all drainage pipes at the proper elevation. 7. Re-construct this area as described in the engineered detail 101, taking into consideration the 6’-0” maximum height provision. 8. Provide the proper swales on both levels. 9. All chinking rocks shall be properly placed and serve their intended purpose. 10. Provide geotextile fabric on the fill side of the walls per the engineered detail. 11. All directed remedial work must pass the required final inspection. 9. Jason A. Hale, PE, SE, prepared a site visit report for Core Structure Group. (Exhibit No. C-10 and R-6). The report provides, in pertinent part, as follows: Analysis Results and recommendations: 1. The hillside lot was cut into the natural grade on the west end and filled on the north and east ends. The pad has been stepped to the northwest with two tiers of unmortared rockery retaining walls along the rear of the property. The walls were engineered by Core Structure Group. KS Excavation installed the rockery walls. No special inspections were performed on the installation. Compaction tests were done on the fill behind the walls by Aspen Creek Engineering…Analysis Results and Recommendations: 1. The swale behind the walls is inadequate to prevent water from flowing over the walls and washing out the wall topping. Remove some of the material behind the wall to provide a swale. Hold down the finish grade a minimum of 6” from the top of the rock wall topping. The landscape rock may be placed higher at the owner’s option. 2. The base rock cornerstone at the northwest corner of the upper wall must be embedded a minimum of 12” into natural grade. We recommend that this area be deconstructed down to the base course, and the base boulders be properly embedded and the wall rebuilt. We also recommend that a larger boulder be used at the corner to ensure stability. 3. Based on our observations, the failure of the wall at the northeast corner was due to a combination of excessive drainage in the area and improper embedment of the base course. Had the wall been properly installed with the base course embedded per the engineered detail, we believe the excessive drainage in the area would not have caused a wall failure. It appears that the drainage corrections already made along with the addition of a proper swale at the top of the walls will adequately address the drainage issue. Rebuilding the wall at the northeast corner as detailed above will adequately address the lack of proper embedment of the base course. 10. Mr. Hale testified in support of Core Structure Group’s written report. 11. Bill and Patricia Pierce also retained a construction expert, George C. Frank, CFC, to inspect the rock retaining walls and provide the homeowners with a written report. 12. Mr. Frank’s written report (Exhibit No. C-2) provides, in pertinent part, as follows: 9. in further review of the documents provided and discussions with the Owners, it was discovered that K.S. Excavation, LLC had to dig up the upper drain lines due to earlier damage to the lines. This repair took place in mid-August of 2009. In so doing K S Excavation, LLC failed to properly compact the soils, resulting in settlement around the drain. This condition prevented storm water runoff and snow melt from entering the drains. The construction defect resulted in the storm water runoff and snow melt getting into the loose fill soils behind the stone wall and ultimate failure of the wall. 10. To properly correct the current defects, it will be necessary to totally disassemble the existing top and bottom walls, provide revised engineering that will assure a firm foundation and address the original height requirements desired by the owner. In view of the total disregard of the approved plans and specifications during the initial construction and the failure by local officials in catching the built-in construction defects by K S Excavation, LLC (‘s) failure to comply with the approved plans and specifications, we recommend that a Special Inspection by the Engineer of Record be required during the construction of the new wall. 11. Based on my review of the work performed by Keith Smith Excavating LLC, review of the documents provided by the Owner, supportive photos, the significant rain event of September 5, 2009 and discussions with the Owners and Dave Kurtz. I conclude, and it is my professional opinion that the stone retaining walls as constructed by Keith Smith Excavating LLC, were not installed in accordance with the approved plans and specifications and industry standards, resulting in the subsequent failure of both the upper and lower walls. It is further concluded that by failure to follow the approved plans and specifications Keith Smith Excavating LLC has crated a safety hazard that may continue to fail resulting in danger to both life and property; therefore, action is required to remediate the existing conditions. It is my intention to supplement this declaration should new or additional evidence be made available to me. 16. George C. Frank appeared and testified at the hearing in support of his written report. 17. The Respondent presented the testimony of Troy Odell P.E. Mr. Odell prepared a written report (Exhibit No.R-11) which provides, in pertinent part, as follows: Although I do desire to fully review the other items associated with this project. I do realize that at this time I need to summarize what I have learned so far. This type of project should never have been done by Steve Moll with Ridgeline. It should have been done by an engineer that is familiar with soils, drainage, drainage improvements and retaining walls. I feel that this project should never have left an engineer’s office for review by the County Building Safety without more adequate preparation and without a complete plan showing final elevations for the walls, slopes and yards. This plan should also have shown compaction percentages, drainage improvements, and a final wall design including behind wall drainage design. Without plans, staking and inspections by the engineer, it seem that the entire integrity of your wall depended upon your experience and expertise. As they say “you have to have a plan.” Unfortunately you in this case did not. You built this wall without the benefit of adequate grading drainage, and design plans. The wall was then adversely impacted by uphill drainage that was not adequately accounted for in any of the plans or details. It is my determination that conditions exist on this site that should have been accounted for in the wall and grading & drainage design and were not causing the failure of the corner of the wall. 18. Mr. Troy Odell P.E. appeared and testified at the hearing in support of his written report. 19. Credible testimony and evidence presented at hearing established that the Respondent failed to construct the rock retaining walls in accordance with approved plans and specifications. 20. Credible testimony and evidence established that rock retaining walls have failed and require extensive corrective work to bring the walls within applicable industry and workmanship standards. 21. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Orders issued in these matters. 22. Although the Complainants concerns, frustrations, and aggravation regarding the problems they have all experienced with the construction of the rock retaining walls at issue are understandable, construction work, such as that at issue herein, is not a perfect science and it is not uncommon in the industry to have corrections, repairs, or replacements of resultant poor workmanship prior or subsequent to completion of a specified project, in order to bring the final work product up to appropriate industry standards. In this regard, the Respondent must be given a reasonable opportunity to complete necessary remedial work. 23. The Registrar of Contractors does not specify methods of repair nor does it delegate this decision making capacity to a homeowner or general contractor. Instead the method of corrective action is chosen by the licensed Respondent which makes such a decision at its peril. 24. Notice is taken of the Respondent’s prior good license record with the Registrar of Contractors.

CONCLUSIONS OF LAW

1. The credible evidence of record established violations by the Respondent of the provisions of A.R.S. § 32-1154 (A)(2) (Departure from or disregard of plans and specifications or any building codes), A(23) (Failure to take appropriate corrective action) and A(3); namely, Rule R4-9-108 (Failure to perform work in a professional and workmanlike manner).

RECOMMENDed order

In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Respondent’s License No. KA.233738-D shall be suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has properly complied with the terms and conditions of the written Corrective Work Orders issued in these matters. It is further recommended that if the Respondent properly accomplishes the above described corrective action, on or before the effective date of this Order, then the above provided License suspension shall not take place and that these matters shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101A(5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification.

Done this day, June 9, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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