ALJDEC decisions subject to certification as final

2020A-02977-CHC-ROC · Registrar of Contractors · 2021-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bridget Anne Bresnahan,

COMPLAINANT,

BWL Construction, LP,

License No. 289316,

RESPONDENT.

No. 2020A-02977-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 29, 2021 and June 30, 2021

APPEARANCES: Andrea Simbro, Esq. appeared on behalf of Complainant Bridget Anne Bresnahan. Fidelis Garia, Esq. appeared on behalf of Respondent BWL Construction, LP.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On February 1, 2021, the Registrar of Contractors (Registrar) issued a

Notice of Hearing setting a hearing on March 2, 2021, by the Office of Administrative Hearings in Phoenix, Arizona regarding charges made in a Citation and Complaint against Respondent BWL Construction, LP (BWL).

A hearing was held on June 29, 2021 and June 30, 2021. At hearing,

Ms. Bresnahan testified on behalf of herself and presented the testimony of City of Phoenix General Inspection Field Supervisor (GIFS) John Baxter, and Michael Sheard, a structural engineer. BWL did not present testimony or evidence in defense of its license.

3. BWL holds license number 289316 issued by the Registrar.

4. On or about October 9, 2018, the City of Phoenix issued a residential remodeling permit to Complainant Bridget Anne Bresnahan. Ms. Bresnahan submitted the permit application and listed herself as the contractor. The permit included a description of the following work: interior remodel, a liveable addition, new front porch.

5. On or about December 5, 2018, Ms. Bresnahan and BWL entered into a residential remodeling contract wherein BWL would remodel Ms. Bresnahan’s home located at 622 E. Catalina Drive, Phoenix, AZ 85016 (the home).

6. On or about December 5, 2018, BWL started work on the home. The original plans required that the original roof remain in place.

7. After construction began, Ms. Bresnahan requested that a 9 1⁄2 roof flat roof be installed and other changes to the plans. As a result, BWL did not construct the home according to the original plans. However, BWL did not obtain a waiver from

Ms. Bresnahan regarding the deviations.

8. In August of 2019, Ms. Bresnahan terminated BWL. At the time, BWL had completed approximately 50% of the project.

9. In April of 2020, Inspector Baxter, the General Inspection Field Supervisor (GIFS) for the City of Phoenix, conducted a progress inspection of the home. Inspector Baxter has been the GIFS since 2017. Inspector Baxter also held the position of GIFS for the City of Phoenix from 2005 to 2009. Inspector Baxter oversees general inspectors who conduct inspections of single family residences. Inspector Baxter prepared a report regarding the inspection. See Exhibit C16. Mr. Baxter reviewed the original plans for construction. See Exhibit C1. Mr. Baxter discovered that BWL’s construction site did not comply with the plans and violated city building codes. Investigator Baxter observed that AO4 trusses were attached to Gerder BO1G. Inspector Baxter explained at hearing that the house engineer should have determined whether the trusses installed would be sufficient. The plans show that on bedroom #2, item 3, the back wall is a bearing CMU wall and that wall does not exist. However, the addition of the BO1G increased the load on the exterior wall. See Exhibit C16, Bates BB0129.

10. Inspector Baxter observed that the door opening leading to the backyard did not conform with the original plans. Inspector Baxter opined that before proceeding with construction, an engineer should have re-sized the beam over the rear glass door because the door opening was larger than the door opening reflected on the original plans. Inspector Baxter observed that new headers were installed that were not on the plans and that there were no king studs installed on the headers. Inspector Baxter explained that there should have been a trimmer installed that runs underneath the header and carries the bearing load of the header. Additionaly, the king stud should run from the top plate to bottom plate to hold it together. This is building code requirement. Investigator Baxter observed that the plan required a reinforcing bar should have been installed per the plans.

11. On or about June 14, 2020, Ms. Bresnahan filed a complaint with the Registrar alleging poor work on the part of BWL. Ms. Bresnahan also alleged that BWL caused structural defects.

12. The Registrar assigned the complaint to its Investigator, Lisa Melton. Investigator Melton has worked for the Registrar for three years. Investigator Melton holds a high school diploma and has earned 62 credits toward her construction management degree. However, Investigator Melton did not obtain the degree. Investigator Melton obtained a certificate through the Army Core of Engineers (ACE) that qualified her as a quality control manager for the ACE. She held the certificate from 2006 to 2018. Investigator Melton was allowed to inspect workmanship on government projects for up to $10 million dollars. The training with the CORE lasted approximately a week. Approximately every four years, Investigator Melton was required to attend the one week class and be recertified. Investigator Melton does not hold an engineering degree.

13. Investigator Lisa Melton conducted a job-site inspection regarding Ms. Bresnahan’s complaint. Investigator Melton reviewed the plans at the jobsite and inspected the complaint items. Investigator Melton observed that the construction work did not match approved plans or drawings. Investigator Melton has completed approximately over a $1,000 ROC inspections and she typically relies on structural engineers when inspecting structural engineering problems with a property. Investigator Melton used Mr. Sheard’s evaluation in her analysis of the allegations listed in the complaint.

14. Matthew Sheard is a licensed structural engineer that is licensed. Mr. Sheard owns Four Peak Structural Engineering Group. Mr. Sheard has practiced structural engineering for 17 years and has been licensed for 12 years. Mr. Sheard has owned Four Peak for approximately six years. Mr. Sheard worked for Bingham Engineering for 10 years. Mr. Sheard has a Bachelors of Science in Engineering from Arizona State University with an emphasis in civil engineering. Mr. Sheard is the structural engineer of record that was retained in 2018 by Ms. Bresnahan. Mr. Sheard was hired by the architect to prepare a restructural analysis. Mr. Sheard has served as engineer of record for approximately 1,500 construction projects.

15. In May of 2020, Mr. Sheard inspected the construction performed by BWL. Mr. Sheard observed that the construction did not comply with the plans and specifications. See C18. Mr. Sheard also opined that BWL performed work that was not in compliance with workmanship standards and city building codes. See id. Mr. Sheard observed that the AO4 was attached to a gerder truss BO1G when he conducted his inspection in May of 2020. Mr. Sheard explained that he did not perform calculations to support the attachment of the AO4 to the BO1 gerder truss. BWL did not contact Mr. Sheard to obtain calculations to support the attachment of the AO4 to the BO1G gerder truss. Mr. Sheard opined that the attachment of the AO4 to the gerder truss BO1G resulted in a greater design load than what is shown in the plans. BWL did not contact Mr. Sheard to calculate design loans. Mr. Sheard observed that the exterior footings were not sufficient with the AO4 being attached to the gerder truss. There was a 1⁄2 inch gap between the AO4 trusses and the interior wall. Mr. Sheard opined that BWL’s failure to rest the trusses on the bearing interior wall violated professional industry standards. BWL did not follow the design provided by the truss engineer. Mr. Sheard concluded that the gerder truss was overstressed.

16. Investigator Melton issued a Directive to BWL on July 22, 2020. Through the Directive, the Registrar directed BWL to correct the following items by appropriate means no later than 5:00 p.m. on August 24, 2020:

Compliance Item 1: GC ignored truss plan, truss not resting on bearing interior wall at Bed2 per truss design. Note1.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection.

Additionally, Plan sheet GSN states: DESIGN LOAD .... The contractor shall contact the engineer of record prior to starting construction and shall not proceed until receiving written documentation of new design and allowable loads”. Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 2: GC ignored truss plan, Girder B01 G not specified in plan for bearing A04. Note2.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection. The Structural Inspection Report states in part: “The approved drawings show the original roof structure remaining.... The contractor for the resident removed the entire existing roof structure and framed the roof with all new prefabricated roof trusses”.

Compliance Item 3: GC failed to obtain eng calcs for ext walls and footings to support trusses at Bed3. Note3.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. The Structural Inspection Report states in part: “The approved drawings

show the original roof structure remaining.... The contractor for the resident removed the entire existing roof structure and framed the roof with all new prefabricated roof trusses”. Additionally, Plan sheet GSN states: DESIGN LOAD .... The contractor shall contact the engineer of record prior to starting construction and shall not proceed until receiving written documentation of new design and allowable loads”. Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted,inspected and passed by the local building authority.

Compliance Item 4: Girder bears upon broken, ungrouted/unreinforced CMU creating structural defect. Note4.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection.

The Structural Inspection Report states in part: “CMU cells un grouted and unreinforced”. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed

by the local building authority.

Compliance Item 5: Structural beam at kitchen popout in architectural plan was not constructed. Note5.

Investigator’s Observation: The subject beam is not in place. Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 6: Header at 16' door opening is undersized to carry roof trusses.

No calcs provided. Note6.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. The Structural Inspection Report states in part: “The approved drawings

show the original roof structure remaining.... The contractor for the resident removed the entire existing roof structure and framed the roof with all new prefabricated roof trusses”. And, “The (2) ply 1 3⁄4" X 12" LVL header above the 16' door opening is undersized to carry the roof trusses that span across the residence.” Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 7: Vertical (rebar) at CMU not completed per Structural Inspection. Note7.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. The Structural Inspection Report states in part: “Vertical reinforcement (rebar) was not added at all new and existing window jambs, corners, end walls and regularly at 48" o.c.” Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 8: Horizontal (rebar) at CMU not completed per Structural Inspection. Note8.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. The Structural Inspection Report states in part: “Horizontal reinforcement

(rebar) was not provided at the top of the emu walls in a continuous bond beam.”

Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 9: New wood frame walls next to CMU are not properly attached to CMU walls. Note9.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection. Note 9.

The Structural Inspection Report states in part: “Anchor bolts missing from CMU wall to wood wall.” Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 10: Spec Inspection was not completed for use of epoxy was for attachment of wood walls to CMU. Note 10.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. The Structural Inspection Report states in part: “Special inspection does not appear to have been completed for the use of epoxy for the attachment of the wood walls to the emu walls.” Plans callout special inspections on GSN page of the approved drawings, as well as, the Special Inspection Certificate issued by the City of Phoenix.

Respondent did not attend inspection, did not provide any response to this complaint and did not provide building permit/inspection information as requested. Respondent

should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 11: Parapet walls were stack framed (not ballooned) resulting in a structural/unsafe hinge. Note11.

The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection. The Structural Inspection Report states in part: “The approved drawings show the original roof structure remaining.... The contractor for the resident removed the entire existing roof structure and framed the roof with all new prefabricated roof trusses”. And “At multiple locations, the parapet walls (where the roof trusses run parallel to the wall) are stacked and not balloon framed. This creates a hinge that requires bracing to resist the forces normal to the wall”. Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 12: Wood framed wall above CMU improperly attached to resist the shear/ moment forces at hinge. Note12.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection. Note12.

The Structural Inspection Report states in part: “The approved drawings show the original roof structure remaining.... The contractor for the resident removed the entire existing roof structure and framed the roof with all new prefabricated roof trusses”. And “At multiple locations, the parapet walls (where the roof trusses run parallel to the wall) are stacked and not balloon framed. This creates a hinge that requires bracing to resist the forces normal to the wall”. Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 13: Blocking between roof and walls do not provide a continuous load path. Note13.

The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection.

And “blocking between roof diaphragm and wall does not provide a continuous load path.” Respondent should correct by appropriate methods. The work of the Respondent

must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 14: NW corner parapet leans out due to stacked framed walls creating struc/unsafe hinge. Note 14.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection.

The Structural Inspection Report states in part: “parapet wall bends outwards at northwest corner.” Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 15: Vertical parapet walls on front of home are not framed square. Note 15.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection.

Compliance Item 16: Use of un-approved straps to attach upper wood wall to emu wall below. Note16.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection.

The Structural Inspection Report states in part: “The straps used to attach the upper wood wall to the emu wall below are not approved for attachment to emu. In addition, they use nails for the attachment to the un-grouted emu walls which is not approved”.

Compliance Item 17: Corner Studs not used in two locations. Note17.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection. Note 17.

The Structural Inspection Report states in part: “The exterior re-entrant corner between the master bedroom and bedroom 2 is missing a corner stud to allow for edge nailing”.

Compliance Item 18: King Studs are missing next to the header above emu in Bedroom. Note18.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection.

The Structural Inspection Report states in part: “King studs are missing next to the header in the southeast room above the emu walls”. Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 19: A cripple stud is missing above the window at the master bathroom. Note19.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection.

The Structural Inspection Report states in part: “A cripple stud is missing above the window at the master bathroom”. Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 20: A CMU block is missing below the header in the front bedroom. Note20.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection.

The Structural Inspection Report states in part: “A CMU block is missing below the header between the closet and bedroom 2”. Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 21: Missing/Bent H2.5A uplift connectors. Note21.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection.

The Structural Inspection Report states in part: “H2.5A uplift connectors are missing in the southeast room and closet”. Respondent should correct by appropriate methods.

The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

Compliance Item 22: Missing Horizontal straps on header openings greater than 6'. Note22.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection.

The Structural Inspection Report states in part: “Horizontal straps are missing on headers with openings greater than 6'-0"”. Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building

Compliance Item 23: Missing anchor bolt. Note23.

Investigator’s Observation: The Structural Inspection Report identifies this Item as a deficiency. I was shown this Item by the Structural Engineer during this inspection.

The Structural Inspection Report states in part: “An anchor bolt is missing in the wood sole plate in the master bathroom suite within 12" of the end of the plate”. Respondent should correct by appropriate methods. The work of the Respondent must comply with contract and plans approved by the local building authority and must be permitted, inspected and passed by the local building authority.

17. On August 20, 2020, Respondent requested that the Directive be extended to August 28, 2020 to allow for material delivery.

18. On September 2, 2020, Respondent requested the Directive be extended until September 9, 2020.

19. BWL did not repair the Directive items by the due date. BWL did not correct the roof to meet the approved plans, nor had BWL had submitted revised with current roof configuration for approval.

20. On October 26, 2020, Investigator Melton conducted a compliance inspection. Investigator Melton and Mr. Sheard inspected the jobsite.

21. Investigator Melton concluded that BWL had not corrected the Directive items.

22. On or about December 3, 2020, the Registrar issued a Citation alleging that BWL may have violated Ariz. Rev. Stat. section 32-1154(A)(2)(a) and (b); 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108(b); Ariz. Rev. Stat. sections 32-1154(A)(3); Ariz. Rev. Stat. sections 32-1154(A)(22).

23. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of BWL.

24. BWL filed a timely answer to the Citation.

25. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

26. At hearing, BWL contended that because Ms. Bresnahan applied for the construction permit and supervised parts of the construction, Ms. Bresnahan acted as an owner contractor/builder. BWL contended that when Ms. Bresnahan requested changes to the original plans, it was Ms. Bresnahan’s responsibility to contact the architect and the structural engineer to determine if such changes should be made and if changes to the written plans were required. Furthermore, BWL contended that it should not have been cited for poor work because BWL was fired after only 50% of the construction job was completed. BWL contended that it should have had the opportunity to finish construction and obtain all necessary inspections.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section

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).

3. The Administrative Law Judge may consider Registrar’s administrative

record. See Ariz. Admin. Code § R4-9-118.

4. The preponderance of the evidence shows that Respondent did not perform construction in compliance with the original plans because Ms. Bresnahan requested a 9 1⁄2 flat roof and other changes that required deviations. The Administrative Law concludes that the record is insufficient to establish that BWl violated Ariz. Rev. Stat. § 32-1154(A)(2)(a).

5. The preponderance of the evidence shows that Respondent failed to perform construction in compliance with city building codes, which is a violation of Ariz. Rev. Stat. § 32-1154(A)(2)(b).

6. The preponderance of the evidence shows that Respondent’s work failed

to meet minimum workmanship standards, which is a violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely A.A.C. R4-9-108(a). The credible testimony of the structural engineer and Investigator Melton established that Respondent’s work failed to meet minimum workmanship standards. Although Ms. Breshahan performed some contracting as a homeowner, Ms. Bresnahan was not a licensed contractor and BWL was required to obtain a written waiver from Ms. Bresnahan before installing a new roof without obtaining new design plans and approved loads. If BWL could not construct Ms. Bresnahan’s home without complying with the Registrar’s workmanship standards, it should not have undertaken the job without a written waiver signed by Ms. Bresnahan. BWL did not obtain such a warranty disclaimer in this case.

7. The preponderance of the evidence shows that Respondent failed to correct the Directive items without valid justification, which is a violation of Ariz. Rev. Stat. § 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 number 289316 for three days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. sections 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, July 20, 2021.

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, July 20, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors