ALJDEC decisions subject to certification as final

2017A-4446-CHC-ROC · Registrar of Contractors · 2018-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Renee Elyse Enas,

COMPLAINANT,

v.

Nelson Digging Services LLC,

License No: 194542, 194541, 194540

RESPONDENT.

No. 2017A-4446-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

FINDINGS OF FACT

Background and Procedure

1. Nelson Digging Services, LLC (Respondent), is the holder of License Numbers 194542, 194541, and 194540 issued by the Registrar of Contractors (Registrar).

2. On or about August 29, 2017, Renee Enas (Complainant), filed a Complaint against Respondent with the Registrar alleging poor work in connection with installation of a concrete foundation for a manufactured home by Respondent for Complainant’s daughter in Parker, Arizona, within the jurisdiction of the Colorado River Indian Tribes (“CRIT”).

3. After the Registrar’s inspection of the job site on December 14, 2017, the Registrar issued a Directive, dated December 28, 2017, requiring Respondent to correct various alleged deficiencies in Respondent’s work by January 18, 2018, as follows:

Complaint Item 1: Concrete Ribbon Footing under 6-inches thick. Measures 3 1/2 to 4-inches thick.

Investigator’s Observation: The Registrar of Contractors jurisdiction in this matter is limited to the concrete "ribbon footings" installed by the Respondent. No approved plans or engineered drawings specific to this mobile home foundation installation were presented by either the Complainant or Respondent. The Complainant did submit an engineers report from Bbaca Engineering, 2401 E. Taxidea Way Phoenix, AZ that stated in part that the ribbon foundations that were installed by the R were measured at approximately 3 1/2 to 4-inches in thickness and that typical standards for this type of foundation in Arizona is a minimum thickness of 6-inches with possible requirements for reinforcing steel.

Also present at the onsite inspection was Bryan Smith, Installation Inspector for The AZ Department of Housing, (Manufactured Housing). Mr. Smith was investigating a complaint filed with the AZ Department of Housing. Mr. Smith stated that if a contractor chooses to install a foundation system that varries from the manufacturers requirements, then that alternitive foundation system would be required to be engineered and approved.

The Respondent should provide and install a foundation system compliant with the manufacturers mobile home foundation requirements, or provide a licensed engineers report stating that the existing foundation ribbon footings are adequate and satisfy all the manufacturers foundation requirements.

4. When some or all of the foregoing items were not corrected by the deadline, the Registrar then issued a Citation to Respondent, dated February 6, 2018, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building code standards);

c. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(A) for failure to perform all work in a professional and workmanlike manner);

d. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for March 29, 2018, at 1:00 P.M.

6. At the hearing, Complainant Renee Enas testified and presented the testimony of Eldred Enas. Dustin Nelson, Managing Member, testified on behalf of Respondent and presented the testimony of Andre Nelson and Kevin Nilsen. Chris Corlett, the Registrar Investigator (Investigator), testified by telephone on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 15 and Respondent’s exhibit numbers 1 - 26.

7. The Investigator on behalf of the Registrar testified as to his communications with Complainant and Respondent, his inspections of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. Specifically, he stated that on October 27, 2017, he went under the mobile home to inspect the three runners and measured four areas of the runners that were less than six inches in depth. He stated that it was difficult to measure because soil was compacted up to the edge of the slabs. He further stated that it appeared the concrete was poured using 2 x 4 form resulting in the edges being jagged.

8. The Investigator stated that as of February 1, 2018, Complainant informed him that there were no changes made to the foundation by Respondent nor was there any engineering report provided to show the runners to be adequate.

9. Complainant testified and presented the report of BBCA Engineering (“BBCA”) which stated, as it relates to this matter, that the thickness of the slab measured approximately 3.5 - 4 inches along its length and that typical Arizona standards require a minimum 6 inch thickness. (Complainant’s Exhibit 15). The report further recommends that slab be replaced with a 6 - 8 inch slab unless soil analysis and engineering was provided to substantiate that the slab could support the manufactured home.

10. Complainant also testified that in addition to submitting a complaint to the Registrar, she also submitted a complaint to the Arizona Department of Housing. (Complainant’s Exhibit 7).

11. Eldred Enas testified on behalf of Complainant that Ambrose Howard, the CRIT local jurisdiction inspector, stated that he did not do periodic inspections because it was his practice to perform an inspection at the end of project when the contractor called him. He stated that Mr. Ambrose stated that Respondent had not contacted him during the course of the project for any inspections.

12. Dustin Nelson, Managing Member of Respondent, testified that there were no building inspections for this job because it was the practice of the CRIT local jurisdiction to perform inspections at the end of the job. He stated also that he wanted to work with BBCA, Complainant’s engineer, but they did not return his calls and he found out they did not want to work with Respondent.

13. Mr. Nelson further testified that he did not meet the Directive deadline because he informed the Investigator that they were waiting for the Arizona Department of Housing report so as to begin all corrective work at the same time. He stated that he received the Arizona Department of Housing report in mid-January 2018, near the Directive deadline.

14. Respondent presented evidence of a letter from the manufacturer of the subject home, Champion Home Builder’s, Inc. (“Champion”), dated March 8, 2018, that reflects that Champion would accept a footing depth of 5.5 inches provided that all other installation was per the manual. (Respondent’s Exhibit 1a).

15. Respondent also presented evidence of a letter from Lloyd W. Rogers, P.E., dated February 23, 2018, stating, among other things, that the runners at Complainant’s residence (with proper pier placement) would meet or exceed what pre-poured pads would do for support of the home. (Respondent’s Exhibit 1b). Mr. Rogers’ report further states that pre-poured concrete pads seem to be holding up well with soil compaction in Parker, Arizona, so that with a larger footing (as was the case with Complainant’s residence), there should be no problems.

16. Andrea Nelson on behalf of Respondent testified that Respondent’s records reflect that 11 cubic yards of concrete was purchased for the concrete runners (Respondent’s Exhibit 3). She stated that a 5.5 inch thick concrete runner with dimensions of 52 feet length and 11.83 feet width (the collective dimension of the runners) would require 11.33 cubic yards of concrete. (Respondent’s Exhibit 3). She further testified that a mistake had been made regarding the measurement of the center runner resulting in the installation of a wider runner than anticipated or required. She stated that as a result, the runners would have required 11.33 cubic feet of concrete to achieve a 5.5 inch thickness, not the 11 cubic feet applied. According to the Tribunal’s calculations, application of 11 cubic feet at the same length and width dimensions would result in a thickness of 5.34 inches.

17. Ms. Nelson also testified that Respondent met the manufacturer’s requirements for determining soil-bearing capacity (Complainant’s Exhibit 3) by obtaining soil records (Respondent’s Exhibit 1c), conducting a penetrometer test . (Respondent’s Exhibit 1b), and by visual inspection by Respondent’s licensed engineer, Lloyd Rogers, P.E. She also testified that she crawled under the home and found only one area three feet long that had a depth of less than 5.5 inches.

18. Ms. Nelson further testified that prior to getting the engineering report, Respondent felt that the only option was for Respondent to remove the home and pour more concrete. She indicated that the local jurisdiction would not grant Respondent permission to do so and instead directed Respondent to just finish the remaining portions of the job.

19. Kevin Nilsen, a consultant and retired contractor and architect, testified on behalf of Respondent that with regard to the penetrometer testing (Respondent’s Exhibit 1b), a 4.5 reading translates to over a 90% compaction which is considered perfect. He stated that this reading equates to a soil load bearing capacity of 9,000 pounds per square foot, and that Champion only requires 6,000 pounds per square foot.

20. Mr. Nilsen further testified that he spent 2.5 hours under the home with a hammer to dig around each slab and measured the thickness at 5 to 7 inches on all areas of the three runners. He stated that that discrepancies in measurements can be due to use of 2 x 6 forms resulting in a concrete pour that can sometimes go under the form or over the form. Mr. Nelson added that grading can never be perfect, and that there can be minor deviations in the concrete pour as a result.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B. R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that 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.

3. Violation of any rule adopted by the registrar.

...

22. Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

6. Complainant has not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2) or A.R.S. § 32-1154(A)(3). The Directive required that Respondent either 1.) provide and install a foundation system compliant with the mobile home manufacturer’s foundation requirements, or 2.) provide a licensed engineer’s report stating that the existing foundation ribbon footings are adequate and satisfy all the manufacturer’s foundation requirements. The Tribunal finds that Respondent has accomplished both.

7. Respondent has substantially complied with installing a foundation system compliant with the mobile home manufacturer’s foundation requirements. Although the Champion manual required a 6 inch thick slab, Respondent undertook to obtain Champion’s approval for a 5.5 inch slab and Champion issued such approval. (Respondent’s Exhibit 1a). It is acknowledged that there was an issue as to whether the runner depth was in fact at least 5.5 inches. There was testimony presented that there were some measurements taken that showed a depth of less than 5.5 inches. However, the Tribunal can appreciate from a review of the photographs the difficulty in taking measurements under the home with compacted soil adjacent to the runners. (Complainants Exhibit 9, Respondents Exhibit 4). Further, the Tribunal considers the most persuasive evidence of the depth of the runners to be a calculation derived from the actual amount of concrete that was poured. The application of 11 cubic feet of concrete, the amount poured, would result in a thickness of 5.34 inches given the length and width dimensions of the runners. Even though Champion approved a 5.5 inch thickness and was not asked to approve a 5.34 inch thickness, this .16 inch difference in thickness, or less than 3 per cent, would not seem to be of a material difference.

8. Respondent also provided a licensed engineer’s report stating that the existing foundation ribbon footings were adequate and satisfied all of the manufacturer’s foundation requirements. (Respondent’s Exhibit 1b). The report from Lloyd W. Rogers, P.E., stated, among other things, that the runners at Complainant’s residence would meet or exceed what 3.5 inch pre-poured pads (another option offered by Champion) would do for support of the home. Mr. Rogers’ report further stated that pre-poured concrete pads seem to be holding up well with soil compaction in Parker, Arizona, so that with the larger footing at Complainant’s residence, there should be no problems. The Tribunal acknowledges that Mr. Rogers’ report is not a model of clarity and raises questions as the scope of his work, as to what he reviewed and the results of his physical inspection, and as to his analysis in reaching his conclusions. However, the Tribunal cannot substitute its judgment for the unrefuted conclusions of the engineer and therefore finds that the report minimally satisfies the Directive.

9. Complainant has not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to undertake corrective action without valid justification. There is no dispute that Respondent did not complete the corrective action until after the Directive deadline of January 18, 2018. However, the Tribunal finds that Respondent has presented a valid justification for failing to do so. First, the evidence reflects that Respondent initially was willing to remove the home from the foundation and pour additional concrete, which would presumably have remedied the Directive item, but was refused permission to do so from the local jurisdiction. Therefore, Respondent had no alternative but to obtain the necessary reports that they did.

10. Respondent’s explanation that it did not meet the deadline because it was awaiting the Arizona Department of Housing report so as not to duplicate work and so as to address all deficiency items at the same time would seem to be reasonable. Further, even though Respondent perhaps should have requested additional time from the Investigator, it is reasonable to assume that attempting to obtain a formal response from Champion and also requesting an analysis and a report from a licensed engineer would take longer than the time allotted by the Investigator.

11. Accordingly, Complainant has not established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(2), A.R.S. § 32-1154(A)(3), and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, that the Citation and Complaint in Case No. 2017A-4446 shall be dismissed.

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 five days from the date of the certification.

Done this day, April 18, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors