ALJDEC decisions subject to certification as final

2019A-03826-CHC-ROC · Registrar of Contractors · 2021-03-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ronda E Norling,

COMPLAINANT

Sombrero Construction LLC,

License No. ROC 189127,

RESPONDENT

No. 2019A-03826-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 5, 2020 and February 25, 2021

APPEARANCES: Ronda Norling on her own behalf; Jared M. Scarbrough, Esq. for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On January 23, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above captioned matter for hearing at the Office of Administrative Hearings on February 27, 2020. The matter was continued and the hearing was conducted on December 5, 2020 and February 25, 2021.

Through the Notice of Hearing ROC alleges that Respondent Sombrero Construction LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license number 189127 issued by ROC.

Complainant is Ronda E. Norling.

Ms. Norling and her husband Mitchell Norling bought a house from Taylor Morrison. Respondent was the framer.

At the hearing, Ms. Norling presented the testimony of Mr. Norling and Todd M. Heroldt, P.E., S.E., of TH Structural, Inc., who prepared a report dated November 30, 2019.

Respondent presented the testimony of Taylor Morrison’s Jeff Block; Alliance Truss’s Gregory Copp, P.E.; Felten Group’s Greg Felten P.E., the engineer of record; and its job superintendent Michael Beckman.

ROC investigator Christopher Fultz also testified.

On July 29, 2019 and August 8, 2019, Ms. Norling filed with ROC complaints against Respondent alleging poor work.

Respondent filed an answer showing that it had been to the home with Taylor Morrison and found nothing to show that its work was deficient, but it needed access to the floor cavity to be sure and it had been denied that access. Respondent noted that it if there was a deficiency, it was ready, willing and able to correct it, and that it would be at ROC’s jobsite inspection.

ROC’s Mr. Fultz conducted a jobsite inspection on September 13, 2019. Mr. Fultz considered all the allegations Ms. Norling made in both complaints.

Mr. Fultz found what he considered to be two workmanship deficiencies: (1) creaking in the loft and “green” room; and (2) an un-level transition between the loft and an adjoining room. The un-level transition was sufficiently noticeable that Mr. Fultz did not find it necessary to take measurements to confirm that there was a problem.

On September 18, 2019, ROC issued to Respondent a Directive that provided in part:

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

Complaint Item 1: Creaking in the floor of the loft and the “green room”.

Investigator’s Observation: The creaking in the loft and green room need to be addressed and repaired by appropriate means.

Complaint Item 2: Un-level transition between loft and adjoining room

Investigator’s Observation: The transition between the loft and adjoining room [needs] to be addressed and repaired by appropriate means.

The Directive required Respondent to notify ROC that it had complied with the Directive by 5:00 p.m. October 7, 2019.

The deadline for compliance was extended, but no new deadline was set.

On October 23, 2019, personnel from Respondent, Taylor Morrison and Alliance Truss met to determine the cause of the un-level floor and to develop a plan to fix it.

On October 25, Taylor Morrison discussed with Ms. Norling scheduling the required repairs. Ms. Norling informed Taylor Morrison that she had hired Mr. Heroldt who was to inspect the house on October 29, 2019.

The plan was for repairs to be made on November 5th unless Mr. Heroldt’s inspection revealed a reason not to. On November 4th Ms. Norling cancelled the November 5th repairs without providing a new date.

Ms. Norling would later write that Taylor Morrison wanted to make repairs, but she would not allow them back in her home for reasons including that there had been several proposed solutions, Taylor Morrison would not explain how the repairs would be made, no structural engineer had been to the home, a civil engineer and not a structural engineer had provided correspondence, and she felt that Taylor Morrison was trying to rush her.

On November 14, 2019, Mr. Fultz emailed Ms. Norling asking if Respondent had fixed the floor; she responded “No, they are in process of reviewing by their engineers.” Ms. Norling did not inform Mr. Fultz that she had cancelled the November 5, 2019 appointment at which the repairs were to be made. Mr. Fultz replied that “I'm going to move this onto the legal department and forward this case along. This has taken too long to fix for you.”

ROC issued to Respondent a Citation dated November 15, 2019, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Through emails dated November 15 and 27, 2019, Taylor Morrison made attempts to schedule the repairs to the floor stating that it would like to handle those repairs as the first order of business while performing additional warranty work. As of December 2, 2019, Ms. Norling had not provided a date for the floor to be repaired.

After the matter was noticed for hearing, the parties agreed to continue the hearing to allow Respondent and or Taylor Morrison to make repairs, which took longer than expected because of the COVID pandemic.

On December 4, 2020, Mr. Fultz conducted a prehearing inspection at which time he determined that the squeaks and the un-level transition had been properly corrected.

The evidence shows that the un-level transition was being caused by a 3/8 inch difference between the height of a shear wall and the adjacent truss. The problem was fixed by adding “scabs” to the trusses to raise the surface on which the floor boards would sit to the same height as the shear wall.

The cause of the 3/8 inch difference is not known.

Relying on Mr. Heroldt’s opinions, Ms. Norling asserts that Respondent was responsible for the un-level transition and that this condition was caused because Respondent did not follow the plans.

Respondent relies on Mr. Beckman’s and Mr. Felten’s opinions to show that it did follow the plans.

Mr. Beckman provided credible testimony that Respondent did follow the plans, that the floor was level when the work was inspected by the Town of Gilbert, and the Town would not have approved the work if the floor had not been level.

Mr. Beckman also testified about work orders related to the squeak in the floor that did not include any information to show that the floor had an un-level transition, with the import being that the un-level floor developed after the Norlings had been living in their home for some time.

According to Mr. Heroldt, Respondent did not follow the plans’ condition 1 in detail 551. In his opinion, that detail calls for the framer to shim up or otherwise cause the shear wall to meet the joists and given that there was the 3/8 inch difference, his opinion was that this did not happen.

Mr. Felten’s opinion was to the effect that Respondent had followed the plans by building the shear wall to the correct dimensions, which is a necessary step because the shear wall is a structural element. He considered the un-level transition to be a cosmetic problem, meaning any problem short of failure, and that detail 551 was to provide the framer guidance on fixing such cosmetic problems, which often occur during construction.

Mr. Felten was of the opinion that there would have been many ways to fix the un-level floor. Mr. Heroldt appeared to be recommending removing and rebuilding the shear wall, but he repeatedly acknowledged that the engineer of record, Mr. Felten should be making that call. Mr. Felten was of the opinion that rebuilding the wall was a bad idea and that Mr. Heroldt had not been willing to provide sufficient information to show that it would work.

Mr. Fultz did not have an independent opinion as to whether Respondent had followed the plans, but he accepted Mr. Heroldt’s opinion. Moreover, Mr. Fultz was of the opinion that even if Respondent did follow the plans, it had committed a workmanship violation because the floor had become un-level, but this would not necessarily mean that Respondent’s work was poor, because the un-level condition could have developed after Respondent completed its work, by for example deflection in the trusses.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

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).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

There was no substantial evidence adduced to show that Respondent is unscrupulous, unqualified, or financially irresponsible.

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

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3. Violation of any rule adopted by the registrar.

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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.

Ariz. Admin. Code section R49108 provides that “A contractor shall perform all work in a professional and workmanlike manner[,] ” and that “a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.”

Ariz. Rev. Stat. section 32-1154(E) provides that ROC may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of Ariz. Rev. Stat. section 32-1154(A)(22).

There was no substantial evidence adduced to show that the squeaking floor was the result of poor work on Respondent’s part, and that problem has been fixed.

It has not been proven that the 3/8 inch difference between the shear wall and the trusses was result of Respondent’s failure to follow the plans as Ms. Norling alleges. To the contrary, Mr. Beckman provided credible testimony that Respondent did follow the plans and that the floor was level when Respondent completed its work. In addition, Mr. Felten, the engineer of record, was of the opinion that Respondent built the shear wall to plan, and that as a structural element this was required and detail 551 was to help fix cosmetic problems that can result even when the plans are followed.

Consequently, it has not been proven by a preponderance if the evidence that Respondent violated Ariz. Admin. Code section R49108 or Ariz. Rev. Stat. section 32-1154(A)(3).

Although Respondent did not comply with ROC’s Directive in the time allotted its failure to do so was justified because it was not proven that Respondent failed to meet the workmanship standards, and because there was agreement to extend the deadline to allow the parties to diagnose the cause of the problem and develop a fix. Consequently, Respondent it has not be proven by a preponderance of the evidence that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(22).

Consequently, this matter should be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that case number 2019-03826 is dismissed.

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.

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-137160-45720000Done this day, March 17, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000