ALJDEC

99F-1493-ROC-com · Registrar of Contractors · 2000-02-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 18, 2000.

APPEARANCES: COMPLAINANT: Carol Kellerhals, on her own behalf. RESPONDENT: by Julian Tucker, qualifying party and authorized representative. REGISTRAR OF CONTRACTORS: by Inspector Phil Coscia.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________

This matter proceeded to a compliance hearing on January 18, 2000, for the purpose of determining whether Respondent had substantially complied with the terms and conditions of the Registrar of Contractors’ Decision and Order issued on July 20, 1999, and for reconsideration of the appropriateness of the disciplinary penalty imposed or that may be imposed. Based on the evidence presented, as well as administrative notice of certain events relative to the procedural history herein, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made and submitted to the Director of the Arizona Registrar of Contractors (Registrar): // // //

FINDINGS OF FACT

1. The instant hearing was convened for the purpose of determining whether Respondent, License No. 128487, Class B, RDS Construction, Inc., substantially complied with the terms and conditions set forth in the prior DECISION AND ORDER entered by the Registrar of Contractors on July 20, 1999, and for a possible reconsideration of disciplinary penalties. 2. That Decision and Order, not appealed by either party, required that Respondent accomplish complete, appropriate, and effective corrective action to remedy the floor finish elevation defect within a specified period of time. The scope of this proceeding on compliance is limited to a determination whether such action was taken and accomplished. 3. The essential nature of that defect was that the siting of the residence did not meet minimal Maricopa County Flood Control District (County) elevation requirements. 4. By agreement of the parties, the appropriate corrective action was to be construction of an engineered retaining wall – rather than elevation of the residence – sufficient to pass inspection by the County. 5. Upon administrative notice of the record, and due consideration of the testimony taken at the compliance hearing in this matter, it is apparent, and so found, that sometime subsequent to the Registrar’s Decision and Order, Respondent subcontracted construction of the wall to two separate licensed subcontractors for the two distinct aspects of construction necessary: one subcontractor for the excavation and soil removal needed prior to building the wall, and the soil backfilling to be done upon completion of the wall; another subcontractor for the actual building of the wall. 6. At this time, there is no dispute that the initial excavation by the first subcontractor (“A and A Backhoe”) and the building of the wall by the second were both accomplished, although the parties’ recollection of the completion date differs by a day: either August 25 (according to Respondent's representative) or August 26, 1999 (according to Complainant). 7. It is also undisputed that the wall itself passed County inspection shortly thereafter (on or about August 30, 1999), but that for whatever reason, the backfilling of soil next to the wall has not yet been done. 8. Complainant Carol Kellerhals (Kellerhals) confirmed that she was not on site when the actual excavation work was done sometime in July, 1999, but that when she first viewed the home site after the excavation, she noted that a trench had been dug where the wall was eventually built, and that some fresh rock-filled dirt had been pushed and spread to the south and west of her residence. 9. Although conceding she had then removed some of the rocks strewn with that fresh dirt, Kellerhals credibly denied removing, disposing of, or otherwise using any of the dirt which otherwise might have been used where needed to backfill the east side of the retaining wall, and it is so found.

10. Kellerhals further explained that for safety reasons she had hauled in a limited amount of dirt from a neighbor’s property to fill in a “gutter” on one side of the wall. 11. Kellerhals also referenced and confirmed a $350.00 material and labor cost estimate she had been provided to complete the backfilling (although she was not certain of the amount of soil included in that estimate). 12. Julian Tucker (Tucker), Respondent's authorized representative and Qualifying Party, testified to the arrangements he had made to have the excavation (and backfilling) subcontracted to A and A Backhoe. He estimated the area to be trenched for the retaining wall was approximately 50’ long, 4’ wide, and 1 ½ to 2’ deep, which would have been wider than needed for the wall, which should have resulted in additional soil to be available for later backfilling. 13. Tucker conceded he had not observed the excavation work, but had been subsequently apprised that there was not enough soil available to backfill the retaining wall. He stated he had been told by one of the principals for A and A Backhoe that someone had taken the rocky dirt they had “stockpiled”. 14. Tucker estimated that the soil necessary to backfill the wall would be about 12 cubic yards, or two truck loads, and did not disagree with the cost estimate of $350.00 obtained by Kellerhals.

CONCLUSIONS OF LAW

1. On the uncontroverted evidence and testimony of record, the undersigned finds and concludes that while the defect in the floor finish elevation was corrected by construction of the retaining wall on or about the date required by the Registrar, sufficient to pass County inspection, Respondent’s failure to complete the backfilling of the wall constitutes a failure to achieve substantial compliance with the terms and conditions of the original Order issued to Respondent in this matter on July 20, 1999, for such backfilling is deemed to be an integral aspect of the process of building the retaining wall to meet at least minimal workmanship standards. 2. This is so, notwithstanding either Respondent’s delegation of this process to others, or the whereabouts of the dirt which should have been available for backfilling. Given that Complainant has been found innocent of any misappropriation of the dirt (See Finding of Fact No. 9) which might otherwise have been available for backfilling, Respondent remains the party ultimately responsible for substantial compliance with the Registrar’s Order, at the risk of disciplinary action against its license. 3. On the record made, it is further concluded that substantial compliance may be achieved either by timely tender to Complainant of $350.00, the undisputed cost estimate for the labor and materials necessary to complete backfilling, or, in the alternative, by timely provision of the actual labor and materials required to complete the backfilling in a workmanlike manner. 4. On consideration of the facts herein, no reconsideration of the original disciplinary penalty imposed is deemed necessary.

RECOMMENDED DECISION

On the basis of the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Registrar’s Order entered in this compliance proceeding, the Class B license of Respondent RDS Construction, Inc., shall be suspended until the Registrar of Contractors receives written proof that Respondent has achieved substantial compliance, as defined in Conclusion of Law No. 3, herein above. IT IS FURTHER RECOMMENDED that if Respondent accomplishes the above- described corrective action on or before the effective date of the Registrar’s Order in this matter, then the aforementioned license suspension shall not take place, and this Citation, together with the Complaint upon which it is based, shall be closed. Done this day, February 3, 2000.

_________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ -----------------------

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