ALJDEC decisions subject to certification as final

2012A-3272-ROC · Registrar of Contractors · 2013-05-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 15, 2013, at 8:00 a.m. APPEARANCES: Complainant Ethan E. Meyer appeared on his own behalf; Complainant Allen Rittgers appeared on his own behalf; Respondent Restoration Property Management LLC DBA: RPM Development appeared through Brad Austin Foudray, its qualifying party. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar” or “the ROC”) issued License No. KB-1.265163-D to Restoration Property Management LLC DBA: RPM Development (“Respondent”). On or about January 11, 2012, Respondent contracted with Ethan E. Meyer to perform work at Mr. Meyer’s house at 2502 South Cottonwood Drive, Tempe, Arizona, including removal of tree stumps, relocation of a chain link fence, removal of an existing wooden fence, and construction of a block wall[1] to replace the wooden fence. Respondent removed the wood fence and built the new block wall on the property line that Mr. Meyer shared with his next-door neighbor, Allen Rittgers, at 2508 South Cottonwood Drive, Tempe, Arizona. Case No. 2012-2315 On or about May 3, 2012, Mr. Rittgers filed a complaint against Respondent with the Registrar. Most of Mr. Rittgers’ specific complaints about the wall concerned Respondent’s allegedly poor business practices rather than workmanship deficiencies. Mr. Rittgers requested that the Registrar require Respondent to return the $907.69 that he paid for his portion of the block wall to resolve the complaint. The Registrar designated Mr. Rittgers’ complaint as Case No. 2012-2315. The Registrar assigned Mr. Rittgers’ complaint in Case No. 2012-2315 to Inspector Beau Cruz for investigation. Inspector Cruz performed a jobsite inspection and on May 18, 2012, sent a letter to Mr. Rittgers and Respondent, addressing Mr. Rittgers’ specific items of complaint in relevant part as follows: After investigation, the ROC has determined that:

1)This inspector is unable apply responsibility to the contractor when numerous intertwining actions on the part of the complainant, neighbor and children, altered the contractors work. 2)The form and manner of how contractor communicate[s] with his clients/customers is beyond jurisdiction. 3) This inspector does not have the authority to direct the contractor to take down the wall. 4) That illegals may have done work, is an allegation that this inspector is not able to verify, and was not present at the time of incident. 5) This inspector does not have the authority to direct the contractor to withdraw or disperse monetary funds. 6) Unable to verify loose and blocks laying flatwise at the time of the jobsite inspection, because blocks were not laying on the wall flatwise and as mentioned in Complaint #1, blocks have been removed and deposited on the ground by complainant and neighbor, which again altered the contractor[’]s work. 7) Unable to verify engineer[’]s report regarding loose blocks, due to blocks have been removed and deposited on the ground by complainant and neighbor prior to jobsite inspection.

Based on the above, a citation will not be issued against the contractor at this time. However, you may request in writing, a further review of your complaint. If you have additional information to support your complaint, you should submit it with your request for review. After such review, a determination will be made on whether a citation should be issued.

Mr. Rittgers did not request further review of the decision not to issue a citation against Respondent in Case No. 2012-2315. Case No. 2012-3272 On July 3, 2012, Mr. Meyer filed a complaint against Respondent with the Registrar about the block wall. The complaint stated that the amount of Mr. Meyer’s January 11, 2012 contract with Respondent was $1,835.50, but that Mr. Meyer had not paid anything to Respondent. Mr. Meyer characterized his contract with Respondent as both written and verbal and stated that no permit was required and that no plans and specifications were prepared for the project. The Registrar designated Mr. Meyer’s complaint as Case No. 2012-3272. Mr. Meyer attached to the complaint that he filed with the Registrar in Case No. 2012-3272 a copy of Respondent’s invoice #6537 dated January 11, 2012, in the total amount of $1,835.50, including the amounts of $231.00 and $592.00, respectively, for the following scope of work: Remove existing wood fence appx 7’ and replace with 6’ block fence. (does not include stucco or paint finish)

Remove existing wood fence appx 31’ and replace with 6’ high block fence. (does not include stucco or paint finish) ***Cost split with neighbor[2]

Mr. Meyer also attached to his complaint in Case No. 2012-3272 a copy of a schematic drawing of a 6’ interlocking 4” CMU block wall with columns or pilasters[3] that showed 10”x10” footers beneath the pilasters to a minimum depth of 36”.[4] The schematic drawing did not show any footings under the panels between the pilasters. Mr. Meyer requested that the Registrar require Respondent to “[r]emove block wall and gates” to resolve the complaint in Case No. 2012-3272 and stated that “we will pay $240.00 for tree stump removal.” The Registrar assigned Mr. Meyer’s complaint in Case No. 2012-3272 to Inspector Ted Gerold for investigation. Inspector Gerold performed a jobsite inspection and on July 23, 2012, issued a Corrective Work Order (“CWO”) that addressed Mr. Meyer’s specific items of complaint. The July 23, 2012 CWO required Respondent to take certain corrective action within fifteen days, in relevant part as follows: This contractor is to correct the following by appropriate means: 1) Correct the height of the gate towards the rear of the house. 2) Replace the broken slat of the same gate. 3) Adjust the first gate latch so it doesn’t rub on the column and fill in the exposed hole in the metal tubing at the latch location. 4) Fill in with mortar at the front column where the re-bar is exposed. 5) Correct where necessary, all of the poor tooling at the joints. 6) Address all of the loose blocks and column caps where necessary.

No action is required by this contractor for the following: 1) The shifting of the column on the side of the garage is not excessive and is normal. 2) The alignment of the walls and column are within standards. 3) Unless it was specified on the contract that the contractor was to supply any replacement materials to re-locate the chain link fence, then contractor is at least and only obligated to use the existing materials and is to re-locate the chain link fence. The complainant is first responsible to provide cost for any new materials used for this action.

On July 27, 2012, Inspector Gerold issued an amendment to the July 23, 2012 CWO in Case No. 2012-3272 that provided in relevant part as follows: This corrective work order is an amendment to the initial corrective work order dated 07/23/2012 and is in regards to the footing sizes of the block wall panels and columns.

Per this inspector’s phone call with the City of Tempe’s plan reviewer, the footing size under the column should be 10” x 10” x 36” deep and the panel footing size should be 10” x 10” deep running the length of the panel.

At the jobsite inspection I could clearly see that at least one of the column’s footing was severely undersized. This contractor is to ensure that all footings meet City of Tempe’s code requirement.

Regarding the permit requirement, per the city of Tempe, if the fence was built on the property line and shares properties then Tempe will NOT issue a permit for that fence. It is to be totally built either on one property or the other. If in this case this wall was built on the property line then the contractor is NOT required to have a permit or have inspections on it. This does not excuse the contractor to meet code requirements in building the block wall.

After Respondent failed to comply with the CWO and amended CWO in Case No. 2012-3272, Mr. Meyer requested that the Registrar issue a citation against Respondent. On December 20, 2012, the Registrar issued a Citation and Complaint in Case No. 2012-3272 charging Respondent with possible violations of A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(23). Respondent filed a timely written answer to the Citation and Complaint in Case No. 2012-3272 denying any statutory violations. Among the affirmative defenses that Respondent raised in the written answer in Case No. 2012-3272 was Inspector Cruz’s failure to find any workmanship deficiencies in Mr. Rittgers' complaint in Case No. 2012-2315. The Registrar referred Case No. 2012-3272 to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. Case No. 2012-4773 On or about September 27, 2012, Mr. Rittgers filed a second complaint with the Registrar against Respondent about the block wall. Most of Mr. Rittgers’ specific complaints in the second complaint concerned workmanship. Mr. Rittgers characterized his contract with Respondent as both written and verbal and stated that no permit was required and that no plans and specifications were prepared for the project. The Registrar designated Mr. Rittgers’ second complaint against Respondent as Case No. 2012-4773. Mr. Rittgers again requested that the Registrar require Respondent to refund the $907.69 that Mr. Rittgers had paid for the block wall to resolve his complaint in Case No. 2012-4773. The Registrar assigned Mr. Rittgers’ second complaint in Case No. 2012- 4773 to Inspector Gerold for investigation. Inspector Gerold performed a jobsite inspection and on October 23, 2012, Inspector Gerold issued a CWO that addressed the specific items of complaint in Mr. Rittgers’ second complaint. The October 23, 2012 CWO required Respondent to take certain corrective action within fifteen days, in relevant part as follows: The following corrections need to be addressed by appropriate means by this contractor:

1) Poor tooling of the block fence mortar joints throughout the fence area. 2) At the 1st column from the front to the back, the top block is excessively out of plumb and the top cap piece is excessively out of level. 3) The grout or mortar joints are cracked and weak causing the blocks to become easily loose. This is especially present at the top row of the entire fence.

The complainant did not demonstrate the following deficiencies at the jobsite inspection so therefore this inspector cannot instruct this contractor to make corrections: 1) Visible elevation defects in the construction of the block wall. 2) The footers being undersized. 3) Reattachment of any of the block fence components using liquid nail.

Mr. Rittgers did not immediately request that the Registrar issue a citation against Respondent in Case No. 2012-4773. Consolidation of Case No. 2012-3272 with Case Nos. 2012-2315 and 2012-4773 After Mr. Meyer’s complaint in Case No. 2012-3272 was referred to the OAH for hearing, the Registrar’s attorney alerted the Administrative Law Judge to the existence of Case Nos. 2012-2315 and 2012-4773. To avoid inconsistent results in the three cases, a prehearing conference was held. At the prehearing conference, Mr. Meyer, Mr. Rittgers, and Respondent’s qualifying party, Brad Austin Foudray, agreed to waive any statutory notice requirements so that the three cases that concerned complaints about the block wall could be consolidated and heard together. Subsequently, Mr. Rittgers requested a hearing in Case No. 2012-4773. The Registrar issued a Citation and Complaint in Case No. 2012-4773 charging Respondent with possible violations of A.R.S. § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32- 1154(A)(23). The Registrar also subsequently issued a Citation and Complaint in Case No. 2012-2315 charging Respondent with possible violations of A.R.S. §§ 32- 1154(A)(2) and 32-1154(A)(3), namely R4-9-108. Based on Respondent’s timely written answer in Case No. 2012-3272, Respondent was deemed to have denied the charged statutory violations in Case Nos. 2012-4773 and 2012-2315. A consolidated hearing was held in the OAH on May 15, 2013. Inspector Cruz and Inspector Gerold testified. Mr. Meyer testified on his own behalf and submitted three exhibits. Jenell Miller, who lives at the house with Mr. Meyer and arranged for much of the investigation of his complaint against Respondent, was present but did not testify. Mr. Rittgers testified. Mr. Foudray testified on Respondent’s behalf, submitted three exhibits, and presented the testimony of Briana Foudray, Respondent’s member. Hearing Evidence The block wall is 6’ high and was constructed using a post-and-panel method. This method uses panels that consist of interlocking tongue-and- groove blocks that are not grouted at the vertical joints but, instead, are designed to move between the grouted block pilasters that are constructed at regular intervals to hold the panels. Cap blocks are attached to the top of the panels and pilasters with grout. Neither Mr. Meyer nor Mr. Rittgers submitted a written contract or written specifications with the complaints that they filed with the Registrar or at the hearing. Written Expert Reports Mr. Foudray testified that after Mr. Meyer and Mr. Rittgers expressed concerns about the block wall, Respondent retained Philip A. Schembri, P.E., M.Th., Registered Professional Engineer Certificate No. 13531 (Arizona) to evaluate the wall. On or about March 8, 2012, Mr. Schembri issued a report of his Structural Inspection of Exterior Fence (“the Schembri Report”). The Schembri Report did not include the results of any invasive investigation or soil analysis and set forth the following limitations: Our inspection, analysis and rendered opinion of the condition of portions of the exterior fence is [sic] based on many indirect observations. We cannot see the footer or rebar in the footers. We look for evidences of structural distress and/or movement such as bulges, broken framing members, and other evidences of distress or deterioration to help us evaluate the condition. As with any limited inspection, it is possible that there are structural deficiencies that are present but cannot be known either due to the limitations implied by the agreed to scope of work or circumstances and/or conditions beyond our control.[5]

The Schembri Report set forth the following bases for its observations and conclusions: The purpose of Schembri Engineers’ [sic] in providing you this service is to help you understand the structural nature of the exterior fence. In that light, note that we look for problem areas and defects that we would consider to be major in nature. A major problem or defect is one in which there is readily visible and available evidence of damage to a load-bearing member and the load-bearing member has been rendered unable to bear the intended design loads because of said damage. Also, a major problem or defect is one in which its presence causes an immediate threat of injury to occupants or the building or to other buildings in the vicinity. Precluding these conditions, a major problem or defect would be a cost to repair exceeding $500.00 or more. It should not be assumed by the client that this inspection and report detail every minor problem or defect that could have been discovered or that we might discover. . . . .

As a building owner, it is unreasonable to expect that any structure would be in a perfect or flawless condition. It is reasonable to expect the structure to perform its intended purpose and function. It is within that context that the inspection was performed and report written.[6]

The Schembri Report contained the following observations, recommendations, and conclusions: Observations

The recently constructed subject fence sections are shown in Photos A1 – A3. Various cap blocks have come loose due to grout shrinkage and must be reattached with an epoxy based mortar. Subject to this recommendation, the fence sections are structurally sound. . . . .

CONCLUSIONS

Overall, we consider the structural condition of the subject exterior fence on this property to be good, however, there are loose cap blocks that need to be attached using an epoxy based mortar. When these cap blocks are properly installed the fence should be considered to have been built properly.[7]

Mr. Schembri did not testify at the hearing. Because Mr. Meyer did not agree with the Schembri Report, he hired Kyle Kepler of Kepler Construction Management LLC, License No. KB-2.199688-D (“Kepler Construction”) to inspect the wall and to render an opinion on Respondent’s workmanship. On June 6, 2012, Kyle Kepler inspected that wall and on June 25, 2012, Kepler Construction issued a report of Mr. Kepler’s inspection (“the Kepler Report”)[8] that provided in relevant part as follows: Note: All items listed below pertain to the recently constructed interlocking block fence on the south shared property line. Initial visual appearance of he wall was poor and not up to our standards. We completely understand that there is no such thing as a perfect C.M.U. wall or fence it does not, nor will it ever exist! However based on the short total span of this wall, and the number and severity of flaws, had our masonry sub. Built it we would have rejected it and would refuse to sign off or, submit payment until it was re-built or brought up to standards.

A) Structural: 1) Column footings were all undersized on width, length, and depth. On average they were the width and depth of the block, and tapered in as they went down. Average depth was only 6”-8” +/-. Horiz. and vert. steel design and spacing is unknown, if any exist at all. 2) Poor grout bond @ all post caps, and top course of interlocking block wall panels. Grout mix ratio unknown. 3) Exposed #4 vert. bar @ top south east column. +/- 1” above top of solid grouted cell. 4) Footings under wall panels are unknown, but only need to be minimal to support live load of wall.

B) Quality Control: 1) 6 of 8 post caps @ columns were loose & did not bond to grout. The other two were not flush with block (out of square & line). 2) Block columns were out of plumb and square (did not line with each other). 3) Interlocking block panels did not line. From end to end (9’ +/- span) top of wall would start @ 0” then bow to 11/2” +/- to 11/2” +/- near center of wall. All panels varied. 4) Interlocking blocks were out of level, plumb, square, & line, creating an unacceptable shadow affects [sic] that only added to the poor craftsmanship of wall. 5) Grout lines were unsightly and did not line [sic]. The tooling finish was poor and slop was left on exposed block. Grout lines would line with columns then drop toward the center creating a reverse or inverted crown. 6) Final clean-up was unsatisfactory for work done at an occupied existing residence. Grout slop was still present on the ground along both sides of wall & present on the wall itself. 7) The two wrought iron gates that were installed were both installed @ different height elevations off of existing siding on the residence and had poor reveals.[9]

Neither Mr. Kepler nor anyone else from Kepler Construction testified at the hearing. Shortly before the originally scheduled hearing in Case No. 2012-3272, Ms. Miller on Mr. Meyer’s behalf arranged for Ralph G. Baca, Registered Professional Engineer Certificate No. 30637 (Arizona) of BBaca Engineering, to inspect the wall. On or about March 11, 2012, Mr. Baca issued a report on his Masonry Wall Evaluation under seal (“the BBaca Report”), that provided in relevant part as follows: 1. General Information 1.1. Code Compliance: IBC 2006 (Accept [sic] With City of Tempe Amendments as Applicable) NDS 2005 ACI 318-08 Soils: No soils report.[10]

2. Summary 2.1. Background During a recent remodel a masonry wall was constructed along the south edge of the above referenced home at its east end. After initial construction the client noted the wall was uneven and leaning. The contractor returned and rebuilt the wall, however after rebuilding the client noted potential discrepancies such as continued leaning, minimal footing material applied and a side gate inadequately installed. At the request of Jenell Miller, a visual site inspection was performed on March 6, 2013 and subsequent Engineering Evaluation by Ralph G. Baca, P.E. of BBaca Engineering, LLC. The report that follows has been prepared based on that inspection.

2.2 Scope of Work The intent of this inspection was to evaluate the current condition of a newly constructed masonry wall and its foundation system of this home due to the above referenced issues and to determine what, if any, significant maintenance, repairs, and/ or replacement to this system might be currently expected. Also, if the root cause of the problem could not be determined visually, steps or tests were to be outlined that would help in narrowing the potential cause(s) of a problem.

3. Observations 3.1. Overall Design The overall design of the wall consisted of an Interlocking Fence Block system. Interlocking Fence Block is designed so that there is no mortar used at the vertical joints. The block interlocks with each other in a tongue and grove [sic] fashion. Pilaster block are designed to vertically reinforce the interlocking fence block at specified intervals.

The field or interlocking and hollow blocks were 8 x 16 x 4 inches wide in size while the pilaster or column support blocks were 8 x 16 x 8 inches wide in size. The pilaster blocks were fully grouted and where in on column #4 metal rebar was noted protruding through the top of the ground. It is assumed this is typical of all pilaster or column supports.

The overall height of the fence was measured at approximately ¼ feet with the pilaster or column supports at an approximate 106 inches apart.

3.2. Footings The footings were measured and found to be approximately six inches deep below both the pilaster or column supports and also below the field or interlocking block sections.

3.3. Leaning The fence was found to be leaning inward (towards the home) along the pilaster or column supports located along the south edge wall at an approximate one inch over three foot length.

3.4. Gate Installation A side gate was installed on existing masonry pilaster or column supports at the west end of the new masonry wall. The gate was not even with the tops of the pilasters and there was an approximate one foot gap along its bottom edge allowing for unwanted small animal entry or exit.

4. Engineering Analysis and Calculations 4.1. Footings Engineering calculations were completed to determine the required footing depth for the pilaster or column supports or field or interlocking blocks. The calculations are presented in Attachment 1. Based on these calculations the current six inch footing below the four inch thick interlocking blocks is adequate, however a footing of 4’ 9” x 4’ 9” square and 12 inches deep below each pilaster or column support would be required.[11]

Conclusion 5.1. Masonry Wall Based on the visible evidence and calculations, the structural condition of the masonry wall system added to this home was considered inadequate and unstable. Our calculations indicate a larger footing will be required below the pilaster or column supports to ensure stability of the wall is obtained and maintained and could be contributing to the leaning noted at the time of the inspection.

5.2. Side Gate In addition, due to the large gap below the gate that was installed it would not be adequate or functional as it now stands.

6. Recommendations 6.1. Masonry Wall Due to the lack of adequate foundation or footing support for the pilaster or column supports and subsequent leaning measured, we do not anticipate the wall can be repaired and therefore recommend the wall be rebuilt.

6.2. Side Gate The gate should be re-positioned and mounted such at [sic] adequate clearance is provided to open and close the gate, however a minimal clearance provide [sic] to prevent unwanted entry or exit by small animals.[12]

After repairs and with normal care and attention to maintenance of a stable moisture content in the soil surrounding the masonry wall/ its foundation the system should remain structurally sound into the foreseeable future.

Mr. Baca did not testify at the hearing. Mr. Meyer acknowledged that Mr. Baca was not provided with a copy of the Schembri Report before he performed his inspection or prepared the BBaca Report. Hearing Testimony Mr. Rittgers testified that neighborhood children were walking across the block wall. Mr. Rittgers acknowledged that to prevent injury to the neighborhood children, he removed loose blocks from the top of the wall and stacked them next to the wall. Inspector Cruz acknowledged that although the wall was not intended to be load-bearing, children have been known to walk on privacy fences. Inspector Cruz acknowledged that Mr. Rittgers’ concern about the safety of the neighborhood children may have been valid. Inspector Cruz testified that at his jobsite inspection in Case No. 2012- 2315, he noted that the loose cap blocks had been removed from the top on the wall on the property line and the return wall in the front. Inspector Cruz testified that because Mr. Rittgers acknowledged that he had removed the cap blocks, Inspector Cruz could not assign responsibility for the loose blocks because Respondent’s work had been altered. Inspector Gerold testified that he required Respondent to correct the loose caps in the CWOs that he issued in Case Nos. 2012-3272 and 2012-4773 because Mr. Rittgers removed the loose blocks to protect the neighborhood children, not to begin performing repairs. Inspector Gerold testified that the main difference between the CWO that he issued in Mr. Meyer’s complaint in Case No. 2012-3272 and the CWO he issued in Mr. Rittgers’ complaint in Case No. 2012-4773 was that in the latter case, he found that the first column from the front was out of plumb and the cap on the block was out of level (Item No. 2 on CWO in Case No. 2012-4773). Mr. Meyer acknowledged that Respondent’s employee had attempted to perform repairs to comply with the CWOs in Case No. 2012-3272, but that he had not allowed the employee to perform any repairs because the employee was using what Mr. Meyer called liquid nails to reattach the cap blocks to the wall. Mr. Meyer testified that he felt that Respondent should have used 2-stage mortar epoxy to attach the caps and that if the employee had used the appropriate product, Mr. Meyer would have allowed Respondent to attempt repairs. Mr. Meyer acknowledged that he did not have any experience in construction, which was why he hired Kepler Construction and Mr. Baca. Inspector Gerold testified that he performed a prehearing jobsite inspection on May 14, 2013, and that Mr. Foudray, Mr. Rittgers, and Mr. Meyer attended the prehearing jobsite inspection. Inspector Gerold testified that at the prehearing jobsite inspection, he saw that no repairs had been performed. Inspector Gerold testified consistently with the CWOs that he issued in Case Nos. 2012-3272 and 2012-4773. Inspector Gerold testified that he measured the block wall with a level at the prehearing jobsite inspection and that the only part of the wall that was excessively out of level was the first column from the front (Item No. 2 on CWO in Case No. 2012-4773).

Mr. Foudray testified that Mr. Meyer had asked Respondent to leave a gap at the bottom of one of the gates because Mr. Meyer intended to install a sidewalk or pavers under the gate (Item No. 1 on CWO in Case No. 2012- 3272). Mr. Meyer denied that he instructed Respondent to leave a gap at the bottom of the gate and testified that his dog runs under the gap. Inspector Gerold testified that the column is plumb on the other gate, but that the latch rubs against the column (Item No. 2 on CWO in Case No. 2012-3272). Inspector Gerold testified that if the column were shifted 1/64”, the latch would move freely and the column would still be plumb. Inspector Gerold testified that if the striker plate was adjusted, the gate latch also would not rub against the column. Inspector Gerold testified that he thought that the name of the building official at the City of Tempe to whom he had spoken before he issued the amendment to the CWO in Case No. 2012-3272 was Gerald Koziol. Inspector Gerald testified that Mr. Koziol’s description of the City of Tempe’s requirements for block walls corresponded to the schematic drawing that was attached to Mr. Meyer’s complaint in Case No. 2012-3272. Inspector Gerold testified that Respondent was required to comply with applicable code in its construction of the block wall. Inspector Gerold acknowledged that Mr. Koziol had not provided a specific code provision that required footings that were 36” deep on the columns on a 6’ high post- and-panel block wall. Mr. Foudray testified that engineering was not required for a wall that was less than 8’ high. Mr. Foudray testified that Respondent only contracted to build a 6’ screen or privacy fence and that if Mr. Meyer and Mr. Rittgers had wanted an engineered wall, he would have discussed the additional cost of the wall with them. Mrs. Foudray testified that she spoke to Mr. Koziol and that he had told her that the City of Tempe did not have any code requirements for a block privacy fence and that it was permissible to construct such a fence with 4” footers, although he could not put his advice in writing. Mrs. Foudray testified that Mr. Koziol said that in some parts of Arizona, 3” footers were acceptable because the ground is so hard. Respondent submitted an e-mail chain between Mrs. Foudray and Gerald Koziol, R.A., AIA, Senior Plan Check Engineer, Community Development, Building Safety, Tempe, Arizona. Mr. Koziol had provided the same schematic that Mr. Meyer had attached to his complaint in Case No. 2012- 3272 and characterized the schematic as follows: “It is just an example of one way to build a code compliant block fence – there are many way [sic] to build a block fence.”[13] In response to Mrs. Foudray’s request for the City of Tempe’s building codes for 6’ fences, Mr. Koziol responded: 104.2. Work exempt from permit. Exemptions from permit requirements of this Chapter shall not be deemed to grant authorization for any work to be done in any manner in violation of the provisions of this Chapter or the technical codes or any other laws or ordinances of the City. Permits shall not be required for the following:

d. Fences not more than 7 feet (2134 mm) high.[14]

Inspector Cruz testified that many areas in Arizona have expansive soils and require deeper footers. Inspector Cruz testified that he was not familiar with the soils in Tempe where Mr. Meyer’s and Mr. Rittgers’ properties were located and did not know the depth of footers that would have been required for a 6’ block wall. Inspector Cruz testified that it was hard to say whether all 6’ non-engineered privacy fences in Arizona had 36” deep footers under the columns. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on May 22, 2013. Such prior License record reflects that Respondent’s License No. KB-1.265163-D is current and that only these three complaints are pending against the license. CONCLUSIONS OF LAW These consolidated matters lie within the Registrar’s jurisdiction.[15] Mr. Meyer and Mr. Rittgers bear the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[16] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[17] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[18] Mr. Meyer and Mr. Rittgers did not establish that applicable building code or the specifications for the project required footers that exceeded the depth of the footers that Respondent constructed underneath the block wall. Therefore, Mr. Meyer and Mr. Rittgers did not establish that Respondent violated A.R.S. § 32-1154(A)(2).[19] The Kepler Report did not provide any basis for its expressed opinion that the footers were undersized. The BBaca Report also did not provide any clear basis for its expressed opinion that the footers beneath the pilasters were inadequate, except that the fence allegedly was leaning. Because Mr. Baca did not testify at the hearing, his statements in the BBaca Report about the fence leaning are hearsay.[20] Although hearsay may be admitted in an administrative hearing,[21] it should not be relied upon if it is not the kind of evidence upon which reasonable persons would rely in serious matters.[22] Inspector Gerold credibly testified that at his initial jobsite inspections in Case Nos. 2012-3272 and 2012-4773 and at the prehearing jobsite inspection, the alignment of the block wall was within standards, with the exception of the first column from the front. In light of Inspector Gerold’s credible testimony to the contrary, a reasonable person would not rely upon the hearsay statements in the BBaca Report that the wall leaned, allegedly due to inadequate footings, to revoke or suspend Respondent’s contractor’s license. Mr. Rittgers credibly testified that he removed the top blocks to protect the neighborhood children who were walking on the wall. Respondent did not dispute and the Schembri Report that it commissioned confirmed that Respondent had not properly attached the top blocks to the wall. Under the circumstances, Mr. Rittgers’ removal of the blocks to protect the children does not constitute a modification that prevents Respondent from being responsible for the loose top blocks.[23] Mr. Meyer and Mr. Rittgers established that Respondent’s construction wall was unprofessional and not workmanlike, in violation of A.R.S. § 32- 1154(A)(3), namely A.A.C. R4-9-108,[24] in the following respects: (1) The loose top blocks (CWO Item Nos. 6 and 7 in Case No. 2012-2315, CWO Item No. in Case No. 2012-3272, and CWO Item No. 3 in Case No. 2012-4773); (2) The height of and the broken slat in the gate at the rear of Mr. Meyer’s backyard (CWO Item Nos. 1 and 2 in Case No. 2012-3272); (3) The latch at the gate at the front of Mr. Meyer’s backyard that rubs on the column (CWO Item No. 3 in Case No. 2012-3272); (4) The front column in Mr. Meyer’s backyard where the rebar is exposed (CWO Item No. 4 in Case No. 2012-3272); (5) The poor tooling in the grout joints on both sides of the block wall (CWO Item No. 5 in Case No. 2012-3272 and CWO Item No. 2 in Case No. 2012- 4773); and (6) The first column from the front to the back where the top block is excessively out of plumb and the top cap piece is excessively out of level (CWO Item No. 2 in Case No. 2012-4773). Because Mr. Meyer and Mr. Rittgers did not establish that any of the workmanship deficiencies that they established cannot be corrected, they have not established a right to restitution under A.R.S. § 32-1156.01 in any amount or a right to have the wall demolished and rebuilt to different specifications. As a licensed contractor, Respondent is presumed to be competent to determine the appropriate corrective actions that it should take to repair deficient workmanship. Mr. Meyer and Mr. Rittgers do not have the right to dictate the methods or materials that Respondent uses to make repairs. Mr. Meyer acknowledged that he did not allow Respondent’s workmen to perform repairs because he felt that they were using the wrong material. Respondent needed access to both sides of the wall to perform repairs. Because Mr. Meyer’s refusal to allow Respondent to perform repairs as it saw fit constitutes a valid justification for its failure to comply with the CWOs in Case Nos. 2012-3272 and 2012-4773, Mr. Meyer and Mr. Rittgers did not establish that Respondent violated A.R.S. § 32-1154(A)(23).[25] If Mr. Meyer and Mr. Rittgers feel that any repairs that Respondent may perform in the future are inadequate, they may request a compliance hearing. RECOMMENDED ORDERS Case No. 2012-3272 As a result of the contracting law violations that Complainant Ethan E. Meyer established in Case No. 2012-3272, it is recommended that on the effective date of the final Order, Respondent Restoration Property Management LLC DBA: RPM Development’s License No. KB-1.1265163-D shall be suspended until it corrects the items of workmanship that Mr. Meyer established were deficient. It is further recommended that no license suspension shall take place and that, instead, the complaint in Case No. 2012-3272 shall be closed if on or before the effective date of the final Order, Respondent provides written proof and the Registrar accepts such proof that either one of the following events has occurred: 1) Respondent has corrected in a professional and workmanlike manner the loose top blocks, the height of and the broken slat in the gate at the rear of Mr. Meyer’s backyard, the latch of the gate at the front of Mr. Meyer’s backyard that rubs on the column, the front column where rebar is exposed, and the poor tooling in the grout joints on the side of the wall facing Mr. Meyer’s property; or 2) Mr. Meyer or Mr. Rittgers has failed to provide reasonable access for Respondent to perform these repairs. 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. Case No. 2012-4773 As a result of the contracting law violations that Complainant Allen Rittgers established in Case No. 2012-4773, it is recommended that on the effective date of the final Order, Respondent Restoration Property Management LLC DBA: RPM Development’s License No. KB-1.1265163-D shall be suspended until it corrects the items of workmanship that Mr. Rittgers established were deficient. It is further recommended that no license suspension take place and, instead, that the complaint in Case No. 2012-4773 shall be closed if on or before the effective date of the final Order, Respondent provides written proof and the Registrar accepts such proof that either one of the following events has occurred: 1) Respondent has corrected in a professional and workmanlike manner the loose top blocks, the first column from the front where the top block is excessively out of plumb and the top cap piece is excessively out of level, and the poor tooling in the grout joints on the side of the wall facing Mr. Rittgers’ property; or 2) Mr. Rittgers or Mr. Meyer has failed to provide reasonable access for Respondent to perform these repairs. 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. Case No. 2012-2315 As a result of the contracting law violations that Complainant Allen Rittgers established Case No. 2012-2315, it is recommended that on the effective date of the final Order, Respondent Restoration Property Management LLC DBA: RPM Development’s License No. KB-1.1265163-D shall be suspended until it corrects the item of workmanship that Mr. Riggers established was deficient. It is further recommended that no license suspension take place and that, instead, the complaint in Case No. 2012-2315 shall be closed if on or before the effective date of the final Order, Respondent provides written proof and the Registrar accepts such proof that either one of the following events has occurred: 1) Respondent has corrected in a professional and workmanlike manner the loose top blocks; or 2) Mr. Rittgers or Mr. Meyer has failed to provide reasonable access for Respondent to perform this repair. 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, May 24, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] As discussed below, there was some dispute about whether the structure that Respondent constructed should be called a privacy fence or a block wall. Because all three complaints referred to the structure as a block wall, the recommended decision adopts that usage. The use of the term, “block wall,” rather than the term, “privacy fence,” is not meant to characterize the code requirements or the specifications for the structure that Respondent constructed. [2] ComplaintSubmittal1.pdf at 7 in the electronic record that the Registrar provided to the OAH in Case No. 2012A-3272-ROC. [3] The terms, “column” and “pilaster,” are used interchangeably throughout the remainder of this decision. [4] See ComplaintSubmittal1.pdf at 5; Mr. Meyer’s Exhibit A at 3. [5] Mr. Meyer’s Exhibit B/Respondent’s Exhibit 2 at 2. [6] Id. at 3-4. [7] Id. at 5. [8] Kyle Kepler is not listed on Kepler Construction’s license. Because the signature on the Kepler report was illegible, the identity of the individual who prepared the report is not clear. [9] Mr. Meyer’s Exhibit A at 1-2. [10] At the hearing, Inspector Cruz’s attention was called to an attachment to the BBaca Report entitled, “Concrete Footing Design,” that Inspector Cruz testified evidenced that Mr. Baca performed a soils evaluation. See Mr. Meyer’s Exhibit C at 5-6. The inclusion of a section entitled, “SOIL DATA,” seems to contradict the statement in the BBaca Report that no soils report was prepared. The record in this matter does not resolve this apparent contradiction. [11] Attachment 1 to the BBaca Report consists of hand-written calculations on graph paper that are not legible. [12] Mr. Meyer’s Exhibit C at 1-2. [13] Respondent’s Exhibit 3 at 2. [14] Id. at 1. [15] See A.R.S. §§ 32-1151 to 32-1169. [16] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [17] See A.A.C. R2-19-119(B)(2). [18] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [19] A.R.S. § 32-1154(A)(2) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[d]eparture from or disregard of plans or specifications or any building codes of any state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner’s duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.” [20] See Ariz. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). [21] See A.R.S. § 41-1092.07(F)(1). [22] See Plowman v. Arizona State Liquor Board, 152 Ariz. 331, 337, 732 P.2d 222, 228 (App. 1986) (citing Begay v. Arizona Department of Economic Security, 128 Ariz. 407, 626 P.2d 137 (App. 1981)). [23] Because Respondent may be able to avoid future responsibility for deficiencies caused by neighborhood children continuing to walk on a wall that was not intended to support their weight, Mr. Meyer and Mr. Rittgers may want to discourage the children from walking on the wall. [24] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” A.A.C. R4-9-108 includes the requirement that “[a]ll work shall be performed in a professional and workmanlike manner.” [25] A.R.S. § 32-1154(A)(23) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

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