ALJDEC decisions subject to certification as final

2020A-03672-CHC-ROC · Registrar of Contractors · 2021-07-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Barbara Ann Leon,

COMPLAINANT

Ed Fuller Construction LLC

License No. ROC 324859,

RESPONDENT

No. 2020A-03672-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 10, April 13, and June 22, 2021

APPEARANCES: Patrick J. Lopez, Esq. for Complainant; Brooke Harris, Esq. and Abigail R. Wolberg, Esq. for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On December 11, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on January 14, 2021 at the Office of Administrative Hearings. The matter was continued and the hearing was conducted on March 10, April 13 and June 22, 2021.

Through its Notice of Hearing, ROC alleges that Respondent Ed Fuller Construction LLC may have violated Ariz. Rev. Stat. sections 32-1154(A)(2)(b), (A)(3), (A)(12), (A)(16) and (A)(22).

Respondent holds license No. 324859 issued by ROC. Ed Fuller is Respondent’s qualifying party.

Complainant is Barbara Ann Leon, who was represented by counsel and testified on her own behalf.

Respondent presented Mr. Fuller’s testimony and that of Phillip Rosenberg.

ROC investigator John Smith also testified.

In December 2019, the parties entered a contract that called for Respondent to construct an addition to Ms. Leon’s house, to install a roof over the new addition and existing house, to paint the existing house to match the new addition, and to add a sidewalk. When Respondent applied for a permit, the project was also modified to include a kitchenette.

The parties entered several change orders that included construction of a carport. Other changes were not memorialized because Respondent did not charge Ms. Leon for them.

The work also included placement of a shipping container on the property to which Respondent added electric, windows and a door.

Ms. Leon’s daughter Lynn Goggans was involved in the process while the construction was on-going.

The new addition was to be 432 square feet and was based on drawings supplied by Ms. Leon. The addition originally called for a bedroom, a bathroom and a living room.

Ms. Leon’s drawings did not account for the fact that industry standards call for the measurements to be made from outside wall to outside wall and apparently did not account for the width of interior walls. As such the usable space was not 432 square feet.

While the project was underway, the parties agreed to modify the dimensions of the bathroom. This change was instituted because as originally drawn by Ms. Leon, a hallway would have been too narrow. Ms. Leon also requested a change to allow for the addition of laundry facilities.

The original plan was for the bathroom to be 9 feet by 7 feet, but after the modifications were made, the bathroom was 5 feet 8 inches by 7 feet 3 inches.

Ms. Leon denied that she had authorized this change, but her testimony is not credible. In evidence is the City of Tucson’s inspector’s notes showing that a change had been made and her text to Respondent showing that she told the inspector that the layout was “fine.” In addition, Mr. Fuller provided credible testimony to the effect that they spent several hours discussing possible reconfigurations before settling on the new layout, and that had the changes to the bathroom not been made, the utility closet with laundry hook-ups that Ms. Leon requested could not have been added.

On March 15, 2021, Ms. Goggans sent Respondent a text telling Respondent to stop work immediately based on concerns related to COVID.

As of March 15, 2020, the work was not complete and Mr. Fuller estimated that it could have been completed in about three weeks. The plan was for Ms. Leon to contact Respondent to have it finish the work when it was safe to do so.

Ms. Leon never did contact Respondent, but instead on July 30, 2020, Ms. Leon filed with ROC a complaint against Respondent alleging poor work on Respondent’s part and that the work was not to code.

On September 1, 2020, ROC’s Mr. Smith conducted a jobsite inspection.

Ms. Leon’s complaint listed sixteen items that she alleged were deficiencies in Respondent’s work.

On September 9, 2020, ROC issued a Directive ordering Respondent to correct thirteen of the sixteen items listed in Ms. Leon’s complaint and to provide ROC with proof that it had done so by 5:00 p.m. October 9, 2020.

Mr. Fuller did not agree that all thirteen items were deficient work, but rather his opinion was to the effect that some of the work was not completed at the time Respondent was asked to stop work, that some of the alleged deficiencies were the result of unpainted or unfinished wood being exposed to the elements, and that Ms. Leon had approved changes to the plans. Nevertheless, Respondent was prepared to correct all issues identified by ROC, although returning the bathroom to the original size would have required eliminating the laundry hook-ups that Ms. Leon had requested and ROC had directed Respondent to perform work on those hook-ups.

Respondent began corrective work, but before ROC’s deadline, Mr. Fuller had surgery, because of which Respondent could not complete the work in the time ROC allowed. On September 28, 2020, Respondent requested that ROC extend the deadline. In its request, Respondent provided details of its efforts to complete the work.

On October 6, 2020, Mr. Fuller provided ROC with additional details about Respondent’s efforts to comply with ROC’s Directive. Through that correspondence, Respondent informed ROC that Tucson was taking up to twenty weeks to issue permits. Mr. Fuller also provided details of the work Respondent had undertaken after receiving ROC’s Directive but before contacting Ms. Leon, which included “drawing plans, submitting for permits, and attempting to find an available plumber and electrician to meet compliance with the Directive.”

ROC again refused to extend the deadline by which it was requiring Respondent to comply with ROC’s Directive.

Mr. Smith conducted a compliance jobsite inspection on October 14, 2020, at which time he found that the work ROC ordered Respondent to complete was not. P. 285 R 39

ROC issued to Respondent a Citation dated October 22, 2020, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(2)(b), (A)(3)(i.e., R4-9-108(b)), (A)(12)(32-1158), (A)(16), and (A)(22).

At the hearing, Mr. Fuller provided credible testimony to the effect that even though the COVID virus was making scheduling and completing work difficult, Respondent would have been able to comply with ROC’s Directive in the time ROC allowed but for the fact that he was hospitalized during that time.

Complaint Item 1: Plumbing undersized & washer box w/no c/o

Complaint Item 2: No shut-off @ water heater

The plumbing for the washer box had a 1 1⁄4 inch drain, whereas Mr. Smith’s opinion was that the code called for two inches.

Mr. Fuller testified that there may have been a change to the code that he was unaware of, but the installation had passed inspection.

Neither party adduced the actual code provision that Respondent purportedly violated.

Respondent had been ready to make the required repair and to install the shut-off, but was unable to complete that work before the time for compliance with the Directive expired.

Complaint Item 4: Roofing not installed to industry standards

Mr. Smith identified a number of issues with the metal roof that he perceived to be workmanship deficiencies.

Respondent’s position is to the effect that the roof was not complete at the time Ms. Leon told Respondent to stop work or when Mr. Smith conducted his inspection.

Mr. Smith did not agree that the roof was incomplete, rather than deficient, but Mr. Fuller provided credible testimony that Respondent had installed some metal panels as a temporary measure to protect the structure while under construction and that it had used screws that did not penetrate deeply enough as part of that work. Respondent also installed temporary jacks and flashing before it was ordered to stop work. Some of this temporary work was necessary because Respondent was waiting for additional material needed as a result of the change order that added a carport to the project.

Mr. Fuller also provided credible testimony showing that the installation instructions direct the installer to account for the local climate and that Mr. Smith did not fully understand how the roof should have been installed to account for Tucson’s climate. For example, Mr. Smith’s opinion was that the panels should have had butyl tape applied. But Mr. Fuller provided credible testimony that this tape would melt in the heat and that another sealant would have been used if Respondent had not been told to stop work. Another example is that Mr. Smith was of the opinion that foam flashing should have been used, but Mr. Fuller provided credible testimony that this was not the proper installation method in Tucson because that foam would trap heat, whereas Respondent’s installation method allows the heat to vent or escape.

Mr. Smith was of the opinion that Respondent should not have cut the roofing panels. But Mr. Fuller provided credible testimony that some panels had to be cut, for example, to allow for the roof-jack penetrations.

Mr. Fuller addressed the other issues with the roof Mr. Smith identified providing credible testimony to the effect that these alleged deficiencies reflected the fact that Respondent had not been allowed to complete the work before the complaint was filed and that Respondent did not have sufficient time to complete the work before the Directive expired.

Complaint Item 5: Stucco not properly applied, incomplete, lath visible, cracked

Mr. Fuller acknowledged that there was some work required to complete the stucco, but this was essentially touch-up work.

Complaint Item 6: Bathroom not ADA compliant, plumbing not installed correctly

The bathroom is ADA compliant. And as set out above, although it is not the size shown on Ms. Leon’s original drawing, she approved the changes that were made.

Mr. Fuller testified to the effect that to change the bathroom back to a 7 foot by 9 foot space would require removing the laundry hookup and drain that are the subject of complaint item 1. That is to say, that complaint items 1 and 6 are in conflict.

On October 1, 2020, Ms. Leon emailed Mr. Fuller stating that she wanted the bathroom to be 9 feet by 7 feet as the original plan called for and that she had not approved any changes.

Later on October 1st, Mr. Fuller respondent to Ms. Leon explaining that there were two choices: leave the bathroom as built or reconfigure it to meet the original plans, which would require removal of the laundry facilities. Ms. Leon did not reply to that email.

Complaint Item 7: HVAC not installed correctly, missing vent and intake, need junctions

Mr. Fuller acknowledged that the HVAC had not been completed at the time that Respondent was asked stop work.

The record shows that Ms. Leon had originally directed Respondent not to complete some of this work, and that she subsequently had another contractor perform the work.

Complaint Item 8: Doors and windows not square

Complaint Item 9: Trusses not square w/ metal roofing & split

Complaint Item 10: Fascia boards bowed and not square

Respondent provided credible evidence to the effect that some of these deficiencies were the likely result of exposure to the elements that occurred after Respondent was told to stop work.

Mr. Fuller also explained that these items had all passed inspection, but were easy to fix and Respondent would have done so had it been afforded enough time.

Complaint Item 11: Wiring to bedroom not working

Mr. Smith appeared to acknowledge that this may not have been a deficiency and Mr. Fuller provided credible testimony that the wiring had been properly completed.

Complaint Item 14: No Wiring for light at new entry

As of the expiration of ROC’s Directive, this item was not complete, but Ms. Leon had not provided the required light fixture.

Complaint Item 15: Also- Storage Container placement & Alterations & Upgrades Electric line from house to storage and lighting not installed to code

Complaint Item 16: Also-Storage container placement & alterations & upgrades Doors and windows not properly installed or framed to industry standards

Mr. Fuller testified that as originally planned these containers were to be for storage only, and he acknowledged that when that plan changed, permits should have been obtained. Prior to the expiration of ROC’s Directive, Respondent had applied for the permits.

Mr. Fuller appeared to acknowledge that Respondent had contracted beyond the scope of its license by performing plumbing and electric work. Respondent had hired an electrical subcontractor to do at least some of the electric work. All the plumbing and electric work passed the applicable inspections.

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).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

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 in part:

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:

*****

2. Departure from or disregard of:

*****

(b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

*****

3. Violation of any rule adopted by the registrar.

*****

12. Failure in any material respect to comply with this chapter.

*****

16. Knowingly contracting beyond the scope of the license or licenses of the licensee.

*****

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....

Ariz. Rev. Stat. section 32-1158 sets out nine elements that must be set out in any contract between the owner of a property and the contractor.

“The registrar may not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if .... 2. The contractor's work has been subject to neglect, modification or abnormal use.” Ariz. Rev. Stat. § 32-1155(D).

Ariz. Admin. Code section R49108 provides in part:

A. A contractor shall perform all work in a professional and workmanlike manner.

B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, 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.

(Underscoring added).

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).

It has not been shown that Respondent violated subsection 32-1154(A)(2)(a) because it has not been shown that any failure by Respondent to adhere to the applicable codes caused Ms. Leon any prejudice.

It has not been shown that Respondent violated Ariz. Admin. Code section R4-9-108 because the preponderance of the evidence shows that Respondent was asked to stop working on the project before it was completed and was not afforded an opportunity to finish the work before Ms. Leon filed her complaint. Under these facts, it would be unfair and unjust to find any violation. Moreover, the preponderance of the evidence shows that Ms. Leon approved the changes to the bathroom, that Mr. Smith was mistaken about the requirements for the installation of the roof, and that portions of the project were subject to abuse or neglect because they were exposed to the elements after Respondent was asked to stop work. It has not been proven that Respondent violated Ariz. Rev. Stat. section 32-114(A)(3).

Although Respondent did not comply with ROC’s Directive in the time allowed, it has not been shown that Respondent violated subsection 32-1154(A)(22) because its failure to comply was justified by the fact that Respondent could not complete the work because Mr. Fuller was hospitalized during the time ROC allowed and ROC refused to extend the time for compliance despite Respondent’s request for ROC to do so.

There was no substantial evidence adduced to show that Respondent violated subsection 32-1158 and it has not been proven that Respondent violated subsection 32-1154(A)(12).

The preponderance of the evidence does show that Respondent contracted beyond the scope of its license, which is a violation of section 32-1154(A)(16). There was no evidence adduced however showing that Ms. Leon suffered any injury based on this violation and the evidence shows that all the work passed the required inspections.

Because Respondent has violated Ariz. Rev. Stat. section 32-1154(A)(12), ROC has authority to discipline its license.

A factor in mitigation is Respondent’s good faith efforts to comply with ROC’s Directive despite its position that most, if not all, the purported deficiencies were not workmanship deficiencies but rather work that was not completed when Respondent was asked to stop work.

It is recommended that the matter be dismissed.

RECOMMENDED ORDER

IT IS ORDERED that case number 2020-03672 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.

-54864001

001

-137160-45720000Done this day, July 12, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000