ALJDEC

99F-L0100-ROC-RHG · Registrar of Contractors · 2000-04-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Friday, April 14th, 2000; 8:30 a.m. APPEARANCES: The Complainant was represented by Mr. James E. Bertz, attorney-at-law. The Respondent was represented by Mr. Harvey R. Jackson, attorney-at-law. ADMINISTRATIVE LAW JUDGE: Grant Winston. _____________________________________________________________________

This matter was brought on for limited rehearing on April 14th, 2000. Testimony was taken and other evidence admitted to the record, and, based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made. FINDINGS OF FACT 1. The respondent, Continental Quality Pools, is, and during all times material hereto was, a contractor licensed by and doing business in the State of Arizona, holding Class B-05 License number 103750. A principal partner in the Respondent is Mr. Richard Allen Lodisio. 2. The complainant, Mr. Dale Van Slyke, filed a complainant against the Respondent with the Registrar of Contractors on December 15th, 1998. The Complainant alleged that the Respondent had built a pool and retaining wall/fence in a less than workmanlike manner and not pursuant to the contract of the parties. 3. On January 28th, 1999, Messrs. James M. Boyett and Barry Billings, the Registrar’s Inspectors, assigned to the matter conducted a jobsite inspection. Complainant and Respondent were present. On February 2nd, 1999, Mr. Billings issued a Corrective Work Order on February 2nd, 1999, directing Respondent to complete three corrective items related to workmanship and failure of equipment installed. 4. On February 22nd, 1999, Complainant requested an administrative hearing. On March 19th, 1999, the Registrar issued to Respondent a citation and complaint. On March 29th, 1999, the Respondent filed a written answer to the citation and complaint. 5. On June 10th, 1999, the Registrar issued a Notice of Hearing, scheduling an administrative hearing in Lake Havasu City, Arizona, on September 1st, 1999. 6. The hearing was held as noticed before Administrative Law Judge George A. Schade. Judge Schade issued his Recommended Decision and Order on September 8th, 1999. The Registrar adopted Judge Schade’s decision and order by his own Order dated October 1st, 1999. 7. On November 3rd, 1999, Complainant, through counsel, filed a Request for Rehearing “on the issues of Siting the Retaining Wall/Fence and Workmanship.” Judge Schade, on November 29th, 1999, issued a Recommended Decision to grant in part the request for rehearing. Judge Schade recommended that the rehearing’s issues be limited to the Respondent’s “alleged lack of professional and good workmanship in the construction of the retaining wall/fence.” The Registrar accepted the recommendation for limited rehearing, and issued a Notice of Rehearing on December 30th, 1999. The rehearing was held according to the notice, as set forth above. 8. At the hearing Mr. Van Slyke, Mr. Lodisio, and the Registrar of Contractor’s Inspector Mr. Cliff Corlett, who succeeded to the case after Mr. Billings, testified. 9. Complainant’s testimony included mention that the wall has started cracking; the blocks in places are moving away from the grout (sometimes called cement in the hearing). 10. Complainant retained the services of Tri-State Testing and Inspectors, a construction quality control company, to inspect the wall, and compose a written report of their findings. This was done, and the report is of evidence. The report substantiates Complainant’s claim that the wall is not up to workmanship standards for a retaining wall. 11. Complainant had also introduced into the record photographs corroborating his claim that holes were made horizontally in the wall at significant spots, and there was discovered an absence of grout or cement and there was a lack of rebar as needed for a retaining wall, and lack of a bond beam. 12. Complainant also obtained a second professional opinion, that of Registered Architect Mr. David L. Edwards. Mr. Edwards opined in an October 30th, 1999 letter to Complainant that he had reviewed the report of Tri-State and in his opinion the wall does not conform to the minimum requirements of a retaining wall with a block garden wall attached to its top, or to standard design criteria of Lake Havasu City. Mr. Edwards particularly noted the same deficiencies Complainant had mentioned, and found herein. 13. Complainant produced sufficient evidence to find that if a retaining wall is now going to be erected, the time has passed when corrective measures could be made to the existing structure, and it must be taken down and the proper wall begun from scratch. 14. Respondent countered with his testimony that he was not contracted to erect a retaining wall per se, but merely a block wall. He further testified that the retaining wall mentioned by Complainant would be outside the scope of his contractor’s license. (That final position was resolved by the Registrar adversely to Respondent’s contention in the original Decision and Order of this case.) 15. Respondent had introduced a copy of the Lake Havasu City Community Development Department’s Residential Masonry Retaining Wall Details, showing that for the type of wall he built specifications and standards were met. That same piece of documentary evidence shows also that if this wall in fact was supposed to have included a 3’ retaining wall, those specifications were not met. 16. Respondent had introduced into evidence a letter from Tri-State dated April 6th, 2000, in which Mr. Mark A. Dunton, Engineering Division Manager, expressed his opinion that “Regardless of the typical wall detail used, for the height of the wall as constructed, the reinforcing appears to have been deficient.” (Emphasis added.) 17. Inspector Corlett testified. He conducted a jobsite pre-rehearing inspection on April 5th, 2000. His testimony was basically that he did not know which type of wall was contracted to be built, but if it was to have been a retaining wall, it was not up to code or workmanship standards, but if it was to have been merely the block wall of which Respondent spoke, it was acceptable. 18. Therefore, based on the evidence of both parties and that of the Inspector, it comes down to an issue of: What kind of wall was Respondent supposed to have built? If he was supposed to have built the 3’ retaining wall as Complainant contends, clearly the wall he did build is not up to workmanship and industry standards or to code. If he was to have built the mere block garden wall as he contends, most of the evidence would support his claim (although his Exhibit A shows the professional opinion of one professional that regardless of the type of wall, as it is built, the reinforcing appears to be deficient). 19. At this point the contract and evidence surrounding it comes into play. Respondent drafted the contract. He added his own written addition at the bottom of the contract addressing the 3’ retaining wall. He wrote: “Retaining wall not to be over [$]1,000 - if needed - -3’ high.” Respondent seizes on the words “if needed,” and testified that the retaining wall was not needed. Other evidence weighs heavily against the Respondent, however, and leads to the finding that the Respondent did contract to build a retaining wall, but failed to do so. 20. Respondent accepted from the Complainant the additional amount of $1,000 called for by the contract to build the retaining wall. Complainant’s testimony was that Respondent told him that a retaining wall would be necessary. 21. Respondent, as even the evidence of his own testimony shows, initially undertook to construct the retaining wall by installing an oversized footing unique to the retaining wall as opposed to the mere block garden wall. Apparently, at some point the Respondent abandoned construction of the retaining wall, completing the wall in the manner the evidence shows he did. 22. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. This hearing was held under authority of and pursuant to A.R.S. §32- 1156, and A.R.S §41-1092. 2. The respondent herein was charged in the original Citation and Complaint with possible violations of A.R.S. §32-1154.A.7., 17., 19., 23., and 3., namely A.A.C. R4-9-108, Workmanship Standards. 3. As the Registrar has already entered the final agency decision in this case except as to the limited issues before this rehearing regarding the workmanship standards of the retaining wall, conclusions now will not be re-made as to the earlier decided matters with which the rehearing was not to, and did not, concern itself. 4. As to the issue of the workmanship of the retaining wall, having found that the Respondent did in fact contract with the Complainant to build a 3’ retaining wall as part of the fence construction, it must be concluded, based on the further facts found, that the fence Respondent built was not up to workmanship standards for a retaining wall fence. A.A.C. R4-9-108, the Registrar’s rule regarding workmanship and the rule charged in the Citation and Complaint, holds at Section A. “All work shall be performed in a professional and workmanlike manner.” Section B holds that “All work shall be performed in accordance with any applicable building codes and professional industry standards.” The evidence supports the conclusion that Respondent violated A.A.C. R4-9- 108 in that the retaining wall was not constructed in accordance with workmanship standards. 5. In failing to comply with this administrative rule, Respondent also violated A.R.S. §32-1154.A.3. That subsection prohibits a licensed contractor from violating any rule adopted by the Registrar. . . . RECOMMENDED ORDER Wherefore, it is hereby recommended that the Respondent’s Class B-05 License number 103750 be suspended until such time as he has appropriately removed the Complainant’s existing wall and constructed a proper 3’ retaining wall called for by the contract, and completed all additional portions of the wall as called for by the contract, all according to workmanship and industry standards, and all applicable building codes. It is further recommended that if the Respondent completes the above- described corrective work on or before the effective date of this order, and, in addition, if all corrective action ordered by the Registrar in the Registrar’s original Decision and Order have been appropriately completed, then no license suspension shall take place, and Citation and Complaint No. L99-0100 be closed. Done this day, May 3rd, 2000.

_________________________________ Grant Winston Administrative Law Judge

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

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

By _______________________________

----------------------- Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488