ALJDEC decisions subject to certification as final

2018A-325-CHC-ROC · Registrar of Contractors · 2018-06-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Robert Alexander Oberst,

COMPLAINANT,

v.

ENR Homes LLC,

License No: 303750

RESPONDENT.

No. 2018A-325-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 14, 2018

APPEARANCES: Complainant Robert Alexander Oberst appeared and was represented by Timothy F. Coons. Ernest Lucke, Manager, appeared on behalf of Respondent ENR Homes LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

ENR Homes LLC (Respondent) is the holder of License No. 303750 issued by the Arizona Registrar of Contractors (Registrar).

On or about June 3, 2017, Robert Alexander Oberst (Complainant) signed a contract with Respondent for the construction of a new house.

On or about January 23, 2018, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Beau Cruz. After a jobsite inspection, Investigator Cruz issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license. You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on March 23, 2018.

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: Roof trusses broken off

Two cut and burnt garage truss tails at front entry with cut gusset plates, bearing over the east (E) wall of garage. Respondent is to have truss engineer of record inspect all issues with trusses regarding missing, detached and /or altered truss members and correct per engineers approved calculations/designs.

Complaint Item 3: Gusset plates removed by framers from trusses

Three loose/detached truss plates on gable truss over the northwest (N/W) corner of Man Room, one loose/detached truss plate on end truss over west (W) wall of Game Room, loose/detached and altered truss plates on southeast (S/E) outrigger truss of garage and damaged/split bottom cord of same outrigger truss and, missing gusset plate(s) on bottom cord of truss T-12 in garage. Respondent is to have truss engineer of record inspect all issues with trusses regarding missing, detached and /or altered truss members and correct per engineers approved calculations/designs.

Complaint Item 4: Damaged OSB on the roof

Damaged/delaminating/weathered OSB roof sheathing over structure in the following areas; over garage area and main structure , over main south (S) gable area (P-11), southeast (S/E) gable over bathroom area and, over north (N) main structure and patio area. Respondent is to inspect all exposed OSB on the roof and replace any Damaged/delaminating/weathered OSB roof sheathing,

Complaint Item 7: Garage fascia board damage

Replace fascia boards over garage entry are split on both sides of the miter joint.

Complaint Item 8: No metal plates protecting electrical or plumbing

Numerous areas noted that are missing required metal plates to protect electrical and plumbing.

Respondent is to have inspected by the local governing (municipality) jurisdiction. If the local governing jurisdiction determines that there are corrective issues during the inspection the Respondent will have to Correct by Appropriate Means.

Complaint Item 9: Wire routed through block without metal sleeve.

Noted nonmetallic sheathed cable running thru the Integra Blocks in numerous areas of the garage. Respondent is to have inspected by the local governing (municipality) jurisdiction. If the local governing jurisdiction determines that there are corrective issues during the inspection the Respondent will have to Correct by Appropriate Means.

Complaint Item 14: The southeast corner of the garage was very uneven. I (Robert Oberst) seen this as I drive up to the property. My neighbor again also brought this to my attention. Ernest said it was a badly placed seam in the fascia board of which Ernest said he had ordered a new fascia board and was going to replace. This was never done. From inside my garage my neighbor observed the framers removing a gusset plate from the webbing of a 8 foot (jack) and the fore a couple 2x4 they had made and apply upward pressure to the 45 degree angle piece of this jack frame. The OSB on the roof has been removed and installed several times and looks beyond damaged. We have pictures of the removed plate.

Respondent is to have truss engineer of record inspect all issues with trusses regarding missing, detached and /or altered truss members and correct per engineers approved calculations/designs.

Complaint Item 17: Three roof trusses for reasons unknown were broken off, as if a person took a hammer top them and beat on the ends till they broke off. The breakage extends into the metal U-shaped gusset plate. As you are standing in the front entrance looking at the front door from outside to the left 2 of the 3 trusses can be seen. When this was brought to Ernest attention he again looked at his business partner and said what are they doing. Again we were told this is not his normal framing crew and my reply to Ernest was who is managing these people, you are collecting 20% to do this and you are not protecting my investment. Each broken off truss was covered with a 2x4 directly covering the break and then a piece of OSB was nailed over this. Ernest said these were fixed and they were not. He tried to cover up his work. He never contacted R &K construction who made the trusses and had them checked for issues. We have pictures of this.

Respondent is to have truss engineer of record inspect all issues with trusses regarding missing, detached and /or altered truss members and correct per engineers approved calculations/designs.

Complaint Item 21: Why has Ernest Lucke not contact the company who built the trusses, R & K and brought their engineers out to the build side and shown them the broken off trusses or discussed the gusset plate they detached. I have spoken to Bruce Watson of R & K and they are very concerned about these issues, this is a liability issue. Ernest has directly allowed this problem to continue and taken no responsibility for these problems except to make excuses.

Respondent is to have truss engineer of record inspect all issues with trusses regarding missing, detached and /or altered truss members and correct per engineers approved calculations/designs.

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

Following the issuance of the written directive, Respondent performed some of the corrective work. After the deadline in the directive expired, Investigator Cruz was notified that work remained to be corrected. Following a compliance inspection, Investigator Cruz forwarded the matter to the Legal Department for a citation to be issued.

The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3); and A.R.S. § 32-1154(A)(22).

Investigator Cruz testified that items 4 and 8 from the written directive had not been corrected as of the compliance inspection.

At the hearing, Complainant and Respondent stipulated that items 4 and 8 did not comply with the Registrar’s workmanship standards and the only remaining issue was whether Respondent had been granted access to address those items prior to the deadline in the written directive expiring.

Complainant testified that at no time between March 8, 2018, and March 23, 2018, did he deny Respondent access to the property to address the items included in the written directive. Complainant did request that he be notified when Respondent was going to be performing work so he could be there to observe.

Ernest Lucke testified that he repeatedly asked Complainant to have the private inspector he had hired to inspect the roof with him to ensure that he knew what Complainant wanted to have repaired or replaced, but Complainant would not make those arrangements. Mr. Lucke also stated that the electrical work in item 8 would take a short time to complete. Mr. Lucke offered no explanation as to why Respondent did not complete that work prior to the deadline in the written directive.

Administrative notice is taken of Respondent’s prior License record on June 14, 2018. Such prior License record reflects that Respondent’s License No. 303750 was first issued on May 6, 2016, and was suspended for non-renewal on June 1, 2018. Such prior License record also reflects that there was one resolved/settled/withdrawn complaint against Respondent’s license.

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 violations 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 evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent did not compete the corrective work following the written directive being issued. Respondent failed to establish that Complainant refused to grant Respondent access to the property in order to accomplish the necessary corrective work. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of 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 suspend Respondent’s License No. 303750 for a period of five days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

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, June 14, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors