ALJDEC decisions subject to certification as final
2017A-5159-CHC-ROC · Registrar of Contractors · 2018-03-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Marleen C Gendreau,
COMPLAINANT,
v.
Adams Quality Construction LLC,
License No: 211422, 211421
RESPONDENT
No. 2017A-5159-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 28,, 2018
APPEARANCES: Marleen C. Gendreau, Complainant, Dan Adams, Respondent and Qualifying Party, Jim Adams, Respondent witness, and Chris Allison, Inspector, Arizona Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson
____________________________________________________________________
FINDINGS OF FACT
Adams Quality Construction LLC (hereinafter, the “Respondent”) is the holder of License Numbers 211422 and 211421 issued by the Arizona Registrar of Contractors (hereinafter, the “Registrar”).
On or about September 9, 2016, Marleen C Gendreau (hereinafter the “Complainant”) entered into a written contract (hereinafter, the “Contract”) with Respondent as follows:
WE PROPOSE TO FURNISH ALL THE LABOR AND MATERIAL NECESSARY TO COMPLETE THE FOLLOWING: To build a new conventional framed rear porch roof over the open deck. Starting by removing the overhang at the rear deck. Then we will install two new 6x6 post and a 5 1/8x 12 inch glue lam. Beam for the center support, and two new 4x6 post with a 5 1/8 x 12 glue lam. beam at both bottom ends. Then installing select grade 2 x 12 fir rafters on 24 inch centers. These will then be covered with 4x8 T-1-11 fir plywood with grooves on 8 inch centers. -We will then dig two new footings one on each side of the existing side decks, so that the two side porch roof will extend out to match with the new rear porch roof. The two new side decks will be built to match as close as possible using T-1-11 plywood and 4x4 rafters beams and post to match existing. Then new 2x8 fascia will be install across new and existing side decks so they match. Then all new fascia will be covered with metal J fascia wrap in koko brown. to match existing. Then the new porch roof will be covered with 30# felt and life time Architectural shingles and drip edge to match existing roof. Then we will extend the existing gas line over to the sand stone patio complete with shut off valve. Upon completion of the job the job site will be cleaned up and hauled away. The one tree up next to the existing porch will be cut down and hauled off. EXCLUSIONS:: Plumbing, electrical, and paint for painting or installing any soffit at "this time, or other repairs needed , or other work not specifically called out in this contract. The Contractor proposes to furnish all materials, labor, and equipment necessary to complete the above named project for the sum. of: Ten thousand one hundred and fifty seven dollars and no cents; ($10,157.00 dollars).
On or about October 12, 2017, the Registrar received a complaint against Respondent from Complainant alleging Respondent performed poor work in that the patio roof that was installed by the Complainant is buckled at the line where the new roof joins the existing roof.
The Registrar assigned the complaint to Investigator Chris Allison. Mr. Allison conducted a formal a jobsite inspection on November 3, 2017. The Complainant was present, the Respondent did not attend the formal jobsite inspection. Thereafter, on November 7, 2017, the Investigator issued a written directive. In the directive, a corrective work order was listed requiring the Respondent to remediate certain workmanship problems noted therein [referred to hereinafter as the “CWO”]. The CWO provided as follows:
Item 1 – Metal J Fascia- Metal J Fascia was not installed. Contract stated Metal J fascia be installed. Correct by appropriate means.
Item 2 – Roof/Deck Framing -Pose added per approved plans is floating and not bearing on footing. Correct by appropriate means.
Item 3 – Roof/Deck Framing- Ridge post is excessively splitting and cracking. Correct by appropriate means.
Item 4 – Roof Framing. The new roof decking is not flush with the existing roof decking causing a “hump” in the roof. Correct by appropriate means.
Item 5 – Roofing- There are exposed roofing nails “shiners”. Correct by appropriate means.
Item 6 – Roofing- The drip edge was installed incorrectly causing a bubble in the roofing on the edge. Correct by appropriate means.
The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.
The CWO specified that all work must be completed on or before 5:00 pm on November 24, 2017.
There was no evidence presented that the remediation ordered by the CWO was completed on or before the deadline of November 24, 2017.
On November 30, 2017, the Registrar issued a citation against Respondent, charging 4 possible violations:
Violation of A.R.S. § 32-1154(A)(1) (“Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal”).
Violation of A.R.S. § 32-1154(A)(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.”).
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).
Violation of A.R.S. § 32-1154(A)(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.
A hearing was held on February 28, 2018 that was limited in scope to the matters alleged in the citation.
Investigator Allison testified that at his pre-hearing compliance inspection conducted on February 21, 2018, the only remaining issue left requiring compliance pursuant to the CWO was that a “hump” remained on the roof where the Respondent’s roofing work met the pre-existing roof line of the home and joined to the new porch roof. Present at the pre-hearing inspection were the Complainant and the Respondent, Dan Adams. Mr. Allison testified that new roof decking still is not flush with the existing roof decking and, in Mr. Allison’s opinion, this was causing a “hump” in the roof.
The Complainant testified at the hearing that all issues raised by her complaint were repaired to her satisfaction except for the “hump” in the roof line where the old, existing roof joins her new porch roof. She testified that the only issue she required be determined at the hearing pertained to this apparent defect in her porch’s roof construction. The Complainant does not recall that she was provided any warning from the Respondent - before the Contract was entered into or before the construction on the job site had concluded - that the existing residence roof was sagging and needed replacement. Complainant also does not recall that she was informed by the Respondent that moving forward to add her porch roof - before replacing the existing sagging roof - could result in forces on the new roof being acted upon by the old roof causing it to move over time. She does not recall being warned, she said, that failure to repair the old, existing roof first - before adding her porch roof - could cause problems with her new porch roof’s stability.
The Respondent called Mr. Jim Adams to testify regarding the porch roof. Jim Adams was the on-site Respondent supervisor for the Complainant’s contracted job. Jim Adams testified that when the job was completed, the roof was straight and presented no defects or “humps.” However, he testified that, over time, the pressure and forces created by the pre-existing roof moving against the new porch roof caused the new roof to buckle upwards.
Mr. Jim Adams testified that at the start of this project an Inspector from the Navajo County Building Permit Department viewed the site with Jim Adams. Mr. Adams was strongly admonished by the Permit Inspector to be careful to say off of the existing roof structure because it was sagging so poorly that it posed a safety risk if it were walked on or if weight were placed upon it. Mr. Jim Adams testified that he too viewed the home’s existing roof and agreed with the Permit Inspector that the existing roof sagged between its trusses and that it was unsafe to walk or place equipment upon. [See, exhibits R-1 through R-4 and photos from the Formal Inspection taken by Inspector Allison, P7-through and including P11].
Further, Jim Adams stated that the existing roof was likely constructed under previously existing building codes. Jim Adams explained that measured roof span of the Complainant’s existing roof span was three feet longer on both sides than allowable under current Building Codes. He testified that the current Building Code takes into consideration the impact that additional snow weight standing on the roof over a portion of each year creates. Thus, Jim Adams stated that the current Building Codes requires significantly lower truss spans because such spans make for stronger weight bearing roofs. Whereas, he stated, the older Codes did not take into consideration the impact of snow weight has on roofs.
The roof built by the Respondent (which was only a roof extending over the Complainant’s porch – not the entire roof of the house) was built according to current Building Code specifications and has a significantly smaller allowance for roof span than that which older codes permitted. Moreover, Mr. Jim Adams pointed out, the Respondent decided because of the poor condition of the existing residential roof, the porch’s roof constructed by the Respondent had to be and was designed to be free-standing – that is, the roof depended upon no support from any portion of the existing weight-bearing structures of the house or the pre-existing residence roof. So, if the house fell to the ground, the porch roof should still stand since it has separate support apart and distinct from the Complainant’s residence.
Mr. Jim Adams testified that in constructing the roof over the Complainant’s porch as free-standing structure, he hoped to avoid any forces associated with the Complainant’s existing, but failing, roof.
Mr. Jim Adams testified that Respondent’s workmanship was not the cause of the buckle that has arisen where the Respondent’s porch roof structure joins the pre-existing residential roof. Contrary to the opinion provided by Mr. Allison, the ROC Inspector that the “hump” was created after Respondent’s construction had been completed because the oversized span of the existing residential roof was causing that roof to sag, to migrate outward towards the porch roof and created forces resulting in upward pressure on the common porch/pre-existing roof line. It is the failure of the Complainant to maintain her residential roof and the failure of that roof which is casing the “hump” and not the workmanship of the Respondent.
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).
The credible evidence presented at hearing established that at the time of the complaint’s Formal Inspection date, there were items of Complainant’s project that needed to be completed or repaired. Specifically, Metal J Fascia was not installed; post added per approved plans is floating and not bearing on footing; ridge post is excessively splitting and cracking; exposed roofing nails “shiners”; the drip edge was installed incorrectly causing a bubble in the roofing on the edge and there is a “hump” located where the new porch roof joins to the pre-existing residential roof.
Complainant and ROC Inspector Allison agree on the record that each of the foregoing items are remediated and that the only issue which remained was the “hump” located where the new porch roof joins to the pre-existing residential roof.
It is proven that the “hump” located where the new porch roof joins to the pre-existing residential roof was not caused by Respondent’s poor workmanship. Rather, by a preponderance of the evidence, the “hump” was caused by the lack of maintenance and upkeep on the Complainant’s original residential roof which roof has and continues to fail creating forces which have deformed, and without repair will likely continue to deform, the junction of the new porch roof and the pre-existing, sagging residential roof.
Complainant has failed to meet its burden to prove by a preponderance of the evidence that Respondent abandoned the Contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1).
Complainant has failed to prove, by a preponderance of the evidence, Respondent’s work was a “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...” The porch roof was permitted by the Navajo County Building Department and a certificate of occupancy was issued for the project [See Permit Number 16-0904-RA dated November 04, 2016. Moreover, by a preponderance of the credible evidence, it has been established that 5 of the 6 items listed in the CWO were satisfactorily remedied and that the last item - the “hump” located where the new porch roof joins to the pre-existing residential roof - is not caused by Respondent’s poor workmanship. Thus, the Complainant has failed to establish, by a preponderance of the evidence that Respondent committed a Violation of A.R.S. § 32-1154(A)(2)
As to the issue of poor workmanship, the evidence established that the Respondent received a directive containing a CWO where it is alleged that the Respondent’s work fails to meet minimum workmanship standards for six items (see A.A.C. R4-9-108). The Respondent was directed to repair the items in the CWO by appropriate means. By a preponderance of the credible evidence, it has been established that 5 of the 6 items listed in the CWO were satisfactorily remedied and that the last item - the “hump” located where the new porch roof joins to the pre-existing residential roof - is not caused by Respondent’s poor workmanship. [Conclusions of Law, Paragraph 5, supra]. Therefore, Complainant has failed to establish that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
Inasmuch as all items listed in the CWO were completed and satisfactorily repaired except for the “hump” located where the new porch roof joins to the pre-existing residential roof was not caused by Respondent’s poor workmanship. Complainant has failed to establish, by a preponderance of the evidence, that Respondent violated A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall dismiss the complaint filed by Marleen C Gendreau.
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, March 12, 2018
/s/ Randolph D. Wolfson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors