ALJDEC decisions subject to certification as final

2016A-2548-ROC · Registrar of Contractors · 2016-11-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGIN THE OFFICE OF ADMINISTRATIVE HEARINGS

Steven Edward Asplin,

COMPLAINANT,

D N B Construction LLC ,

License No: 289360

RESPONDENT.

No. 2016A-2548-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 31, 2016

APPEARANCES: Steven Edward Asplin [Complainant] and Christia Asplin, Wayne Asplin and Jeff Leland on behalf of the Complainant.

Danny Grubbs, [Respondent and Qualifying Party]; Joemar Bautista and Maxine Gonzales on behalf of the Respondent. Steve Philpott, Inspector, Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

On September 12, 2016, the Registrar of Contractors (“ROC”) issued a “Notice of Hearing” setting the above-captioned matter for hearing at 1:00 P.M. on October 31, 2016, at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice shows that the hearing was set to consider the charges made in the Citation and Complaint.

Respondent D N B Construction LLC. (Respondent) is the holder of License No. 289360 issued by the Arizona Registrar of Contractors (Registrar).

On or about January 29, 2016, Complainant Steven Edward Asplin (Complainant) entered into an agreement based upon a written bid (Contract) with Respondent to provide labor for framing in accordance with the Complainant’s provided plans at the Asplin’s residence located at 8336 N. Springfield Drive, Flagstaff, Arizona.

As reflected in the Coconino County Assessor’s records, The Complainant is the owner of record of the parcel at 8336 N. Springfield Drive in Flagstaff, Arizona.

The Complainant on this project, acting as both the owner and the builder, was at all time relevant to the matters herein acting pursuant to A.R.S. 32-1121.

Under the Contract, the Complainant sub-contracted the Respondent to provide labor only, while the Complainant exercised supervision and control over the project including the provision of project materials and supplies; providing detailed plans; scheduling of work; supervising the work; inspecting and approving the work and payment for the services provided. Respondent was hired to provide labor only and the owner acted as his own general contractor for the job.

The time line for the work Respondent provided (before a Complaint was filed) as put forth in Respondent’s Answer to the Citation is not controverted. Respondent started the job on June 3, 2016. About a week later, Mountain View Trusses, Kingman, Arizona, delivered the Trusses to the site and “crained” them off of the truck. As work progressed, it was learned that some of the materials from Mountain View Trusses were not shipped [12 jacks in the front of the house] which delayed work by about a week. Respondent then finished the installation of the trusses and completed sheeting the roof with plywood sheeting.

The Complainant [the General Contractor] walked the roof with Danny Grubbs on several occasions before filing of its Complaint, but did not advise the Respondent that there was any issue with its work or installation.

In the first week of July, 2016, Complainant and Complainant’s father, Wayne Asplin, noted that they observed the roofing appeared not to be plum in numerous areas and that it looked wavy to them. Complainant engaged a roofer, Jeff Leland, to inspect the roof for application of shingles. Mr. Leland testified at the hearing that if shilngles were applied to the roof as he viewed it in early July, the roof would look wavy because of the condition of the sheeting and because the roof was not plumb in several areas.

In testimony, it was agreed that neither the Complainant nor Mr. Leland are experienced with trusses or with the installation standards for trusses.

On or about July 18, 2016, the Registrar received a Complaint against Respondent alleging Respondent performed poor work.

The Registrar assigned the complaint to Investigator Steve Philpott. After a jobsite inspection on July 27, 2016, Investigator Philpott issued a written directive to Respondent on August 1, 2016that provided as follows:

Complaint Item 1: Interior Walls are not plumbed [sic]

Investigator’s Observation: This complaint item is substantiated. Due to varying moisture conditions throughout Arizona, wood products will continue to expand and contract. This action is normal and beyond the contractors control. Walls should be straight within 1/4" and plumb within 1/4" measured from floor to ceiling at corners. Warped or twisted stud walls and ceilings should be flat and not bulge more than 3/8" in 8'. Respondent should make necessary repairs.

Complaint Item 2: Exterior Walls not plumb

Complaint Item 3: Trusses are not installed correctly

Investigator’s Observation: This complaint item is substantiated. The truss and roof system has failed the inspection by the Coconino County Building Inspector. The installer should be knowledgeable about the truss design drawings, truss placement plans, and all notes and cautions thereon. Trusses must be stored and handled prior to installation in a fashion to prevent excessive lateral bending. Trusses must be installed plumb, straight and stabilized with diagonal bracing in the roof and ceiling planes, and cross bracing in the web plane at required intervals shown on the individual truss design drawing. Damaged trusses must be properly repaired and approved by the Coconino County Building Official.

Complaint Item 4: 5/12 pitch roof not plumbed [sic].

Investigator’s Observation: This complaint item is substantiated. Trusses must be installed plumb, straight and stabilized with diagonal bracing in the roof and ceiling planes, and cross bracing in the web plane at required intervals shown on the individual truss design drawing.

Complaint Item 6: Roof sheathing not installed correctly

Investigator’s Observation: This complaint item is substantiated. This complaint item is directly related to Complaint items 3 and 4. The roof surface plane has excessive variations from flat.

Complaint Item 7: Cricket on roof nailed to sheathing.

Investigator’s Observation: This complaint item is substantiated. The cricket / valley should be installed in a manner that is approved by the truss manufacture and in accordance the building codes as adopted by the Coconino County Building Official. See ST-Valley1 for an example of a standard framing detail.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

ROC’s Directive required Respondent to remedy the items using appropriate means. The Directive required Respondent to provide ROC with written proof of its compliance with the Directive prior to 5:00 P.M., August 17, 2016.

The Directive also shows that no other items in the complaint were verified and that no corrective action was required for those other items.

On July 18, 2016, a Compliance Inspection was conducted by Inspector Philpott. Present at this inspection were the Respondent, roofing contractor Jomar Bautista, Respondent employee Maxine Gonzales and the Complainant.

The Complainant admits in testimony that he was argumentative and upset with Mr. Grubbs at the time of the Compliance Inspection. Mr. Grubbs, Mr. Bautista and Ms. Gonzales described the Complainant’s conduct as threatening, intimidating and angry. Inspector Philpott recalls in testimony that Complainant Mr. Asplin was “upset and mad” but does not recall any of the specific statements made by the Complainant at the compliance inspection.

Mr. Grubbs related in testimony that Mr. Asplin threatened to punch him and threatened to kill him” for putting his family in danger. Mr. Grubbs, Mr. Bautista and Ms. Gonzales clearly recalled specific threats and demands from the Complainant. Mr. Bautista stated that Mr. Alsip said he would not let the Respondent work on his roof, then Mr. Asplin ordered Mr. Grubbs to “get off my property and never come back”. Ms. Gonsales testified that she was present during this altercation. She said Mr. Alsplin threatened Mr. Grubbs with physical harm, but Mrs. Alsip – Complainant’s wife – stepped in to stop him. She heard Mr. Alslip say “I can hire you and I can fire you. You are fired!” She said Mr. Asplin told them to “leave the property.”

Following the Compliance Inspection on August 8, 2016, Inspector Philpott issued his Compliance Inspection Notes to the Respondent on August 18, 2016 stating

The August 01, 2016 “DIRECTIVE FROM THE REGISTRAR” required that the respondent must provide the Registrar with satisfactory written proof of compliance with the Directive prior to 5:00 p.m. on August 17, 2016. A compliance inspection was scheduled for August 18, 2016 @ 2:00 to verify compliance. Compliance Findings: The Respondent failed to comply with the written directive and the corrective actions taken fail to meet minimum workmanship standards.

Thereafter, Complainant undertook to consider three bids from other contractors to perform work on the job that Respondent had agreed to perform. The Complainant ultimately accepted a bid from Straightline Custom homes who proceeded to re-adjust the house trusses, provide interior blocking, replaced all of the roof sheeting and re-aligned roof trusses to align on center. In other words, while this matter was pending, the Complainant/Owner/Builder invited another contractor on-site to add to, alter or otherwise change the work performed by the Respondent.

Inasmuch as Respondent did not comply with the ROC’s Directive, August 19, 2016, ROC issued the Citation at issue in this matter.

The August 19, 2016 Citation lists five charges as follows:

A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).

A violation of A.R.S. § 32-1154(A)(12)(“Failure in any material respect to comply with this chapter.”).

A violation of A.R.S. § 32-1124(B)

A violation of A.R.S. § 32-1158(B).

A violation of A.R.S. § 32-1154(A)(22) (“Failure to take appropriate corrective action).

The Respondent stated its willingness to complete the repairs provided in the Inspector’s directive, but that it had been “thrown off the job” prior to completion of the work and that the homeowners and other contractors had completed work at the home.

On September 15, 2016, Respondent filed a Response to the Citation. In its Response, Danny Grubbs, the Qualifying Party for D-N-B Construction, L.L.C., stated that the Complainant ordered and arraigned for the delivery of the trusses for the job from Mountain View Trusses in Kingman, Arizona.

Mr. Grubbs testified that the likely cause of the roofing’s lack of plumb was defective manufacturing of the trusses ordered by the Owner/builder Complainant. No evidence to dispute this assertion was provided.

Mr. Grubbs and Mr. Bautista testified that the sheeting originally applied, over time with rain, began to weather and deteriorate. In Inspector Philpott’s written August 1, 2016 Directive he noted:

“Due to varying moisture conditions throughout Arizona, wood oducts will continue to expand and contract. This action is normal and beyond the contractors control. [emphasis added

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101, et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960), Ariz. Admin. Code § R2-19-119. A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

The preponderance of the evidence shows that for the items in the ROC’s Directive, Respondent’s work was not done in professional manner, which is a violation of Ariz. Admin Code section R4-9-108 and Ariz. Rev. Stat. section 32-1154(A)(3).

Based upon evidence presented at hearing, it has not been established by a preponderance of the evidence whether the “off-plumb” of the Complainant’s roof was caused by poor workmanship of the Respondent or instead caused by defective manufacturing of the trusses purchased and supplied by the Complainant. Therefore, as to the pitch issues appearing on Complainant’s roof, it cannot be determined that Respondent’s work was done in an unprofessional manner.

Based upon evidence presented at hearing, it has not been established by a preponderance of the evidence that the sheeting defects and deterioration on Complainant’s roof were the result of poor workmanship, but rather, the evidence established that the sheeting defects and deterioration are the natural and foreseeable result of the weathering and exposure of the plywood to the elements and not a poor workmanship matter within the control of the Respondent contractor.

The Complainant’s July 18, 2016 statements and conduct referred to in paragraphs 17 and 18 hereinabove, plus Complaint’s engagement of another contractor to perform “repair” or other work on the same project performed by the Respondent constitutes evidence, by a preponderance, that the Complainant had indeed fired the Respondent and terminated its contract for Respondent’s services.

The Complainant’s direction on July 18, 2016 that the Respondent “get off my property and never come back” corroborated by three witnesses is sufficient evidence that the Respondent had no legal access to the jobsite to provide or perform the repairs ordered by the Inspector’s Directive of July 18, 2016.

Considering the nature of the alleged violations at issue, the Administrative Law Judge might typically would recommend a respondent be given an opportunity to correct any workmanship or other deficiencies before imposing discipline. In light of the facts and circumstances of this matter however, including that Complainant fired the Respondent; ordered Respondent off the job before it was able to complete or correct its work and that the Complainant hired another contractor to provide services and corrections to the project, it is not appropriate to issue an Order requiring the Respondent to make the appropriate corrections, nor is it appropriate to suspend or revoke the Respondent’s license.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint in 2016A-2548-ROC filed by Steven Asplin.

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 is forty days after the date of that certification.

Done this day, November 17, 2016.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors