ALJDEC decisions subject to certification as final

2021A-03456-CHC-ROC · Registrar of Contractors · 2022-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Michael Edward Anable,

COMPLAINANT

Kuhlwein Contracting LLC

License No. ROC 256081,

RESPONDENT

No. 2021A-03456-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 9, 2022, February 23, 2022, and February 25, 2022, with the record held open for receipt of written closing arguments.

APPEARANCES: Complainant Michael Edward Anable was represented by Russell E. Krone. Respondent Kuhlwein Contracting LLC was represented by Everett S. Butler.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Kuhlwein Contracting LLC (Respondent) is the holder of License No. 256081 issued by the Arizona Registrar of Contractors (Registrar).

In May 2019, Complainant Michael Anable (Complainant) and his wife, Susan Anable, purchased a property located at 10201 North 39th Street, Phoenix, Arizona. Complainant hired an architect, Scott Lang, to design a “remodel of the original house and addition to make it larger.”

Complainant contacted Respondent to provide a bid on the project. Complainant provided Respondent with an initial set of plans that Respondent used to create the bid. Respondent submitted a bid for the project prior to the plans being approved by the City of Phoenix.

On or about May 18, 2020, the plans for the remodel were approved by the City of Phoenix (Approved Plans).

On or about July 3, 2020, Respondent and Complainant signed the contract for the project. The contract provided that Respondent was to construct the improvements to the existing house and remodel it in accordance with the Approved Plans and permit issued by the City of Phoenix. The contract also required that all change orders had to be in writing.

Nothing in the record suggested that Complainant provided Respondent with the Approved Plans or that Respondent requested the Approved Plans prior to the parties signing the contract.

The Approved Plans called for exposed scissor trusses to be built on site to support the roof over the newly constructed great room.

The scissor trusses were built on site and raised in January 2021.

Brandon Starkes, principal of the framing subcontractor, admitted it did not follow the Approved Plans in constructing the scissor trusses. Mr. Starkes stated he believed the trusses, if constructed according to the plans, would have fallen apart as soon as they were hooked up to a crane and started lifting them; “they would have just collapsed in their own weight” and would not be able to be installed as designed.

While Mr. Starkes believed there were design issues with the scissor trusses as depicted in the Approved Plans, Mr. Starkes did not mention the issue to Respondent, Complainant, or the architect or engineers of record. Mr. Starkes did not seek input from anyone on how to build the scissor trusses and did not get approval from the architect or engineers of record for his modified design.

Neither Respondent nor the framing subcontractor prepared shop drawings or as-built drawings reflecting Mr. Starkes’ modified design.

Respondent did not recall any dates on which it made a call for Structurology to perform a special inspection before or after the building of the scissor trusses.

The Approved Plans called for rigid foam on the exterior of the residence, which was not installed by Respondent.

Respondent did not install an EFIS stucco system because it was too expensive.

The Approved Plans called for R-38 open cell spray foam in the roof deck, but Respondent installed an R-23. The Approved Plans called for an R-47 for the complete assembly at the demoed existing livable area, but the ceiling area showed R-38 of unfaced batts. The Approved Plans called for R-23 open cell spray foam on the existing livable area on the south side of the home, but nothing appeared to be installed at all.

Whether by a verbal agreement prior to the installation of the insulation or after Complainant discovered the deviations from the plans, the parties agreed that Respondent would provide Complainant with a $7,000.00 credit to account for the changes. However, Respondent included the $7,000.00 total in the final invoice sent to Complainant.

In early June 2021, Complainant noticed a swayback in the ridgeline of the roof; a large valley in the North roof; sagging in the roof corners; and similar issues on the other side of the roof.

In an email dated June 15, 2021, Complainant stated the painters he had hired were going to paint the scissor trusses the following day. The email also provided “I meet with the architect and structural engineers tomorrow to look at the sagging roof,” indicating that Respondent had already been notified that there was an issue with the sagging roof.

On or about June 29, 2021, Mr. Kuhlwein emailed Complainant the following:

The trusses were built as engineered and inspected by your engineering company.

They were built and installed correctly.

The trusses have not failed. They are still in place and holding up. There are no signs of structural damage.

There is no exterior or interior cracking of stucco or drywall. There is no movement of walls.

Here are the scenarios that I have come up with after looking into this.

#1. The trusses were constructed as per the engineering companies specifications.

Engineers always calculate a certain amount of deflection to occur.

Wood construction will always have movement from varying weather conditions.

Sometimes the engineering is at fault. Bridges and buildings have collapsed because the engineering was not correct.

#2. The trusses had not moved after the roof, insulation and drywall were installed.

Your complaint about the sagging roofline was after the painters had been working in the house.

In looking at the trusses after the painters were working on them it appears that some truss brackets were painted black.

It appears that the painters loosened some of the bolts to paint the brackets.

Those are the trusses that you say have failed and there are now bolts that are not tightened that were tightened and inspected.

The laborer that I hire from Southwest Contractors Staffing LLC Halbert has been working on your project with me all year.

Halbert was present when I met with Square Tree Framing to discuss the trusses.

Halbert stated to me that he did see one of the painters at the trusses with a wrench trying to tighten a bolt.

All errors in original.

On the same date, Complainant replied to the email as follows:

Mark, I have already told you the painters did not loosen the nuts. They did not paint black paint on the metal. They cleaned the trusses with water and goof off and painted a clear paint. I watched them do this. They are the ones who discovered the loose nuts and brought it to my attention. I showed you the sagging roof days before they painted the trusses. . . . The trusses have moved, there signs of cracking drywall and I suspect it is getting worse over time.

All errors in original.

On or about July 13, 2021, Complainant informed Respondent that the engineers had determined the scissor trusses were not safe and needed to be shored immediately.

On or about July 14, 2021, Mr. Starkes authored a letter describing all the ways in which he changed the plans based on his belief the plans were not structurally sound. In the letter, Mr. Starkes concluded that the changes “made the trusses way stronger than if we would have followed the plans in that regard.” Mr. Starkes also noted that “[i]n this case we seen deficiencies in the plan both on the architectural and structural sides and upgraded all aspects of these scissor trusses vs. Plan call outs.”

The City of Phoenix issued the Certificate of Occupancy on July 14, 2021.

On or about July 19, 2021, Complainant forwarded a shoring plan from Structurology to Respondent.

On or about July 19, 2021, Respondent replied that it had completed its work on the project and any additional work would have to be completed by others.

On or about July 23, 2021, Complainant filed a complaint with the Registrar alleging poor work with respect to the project. The Registrar assigned the complaint to Investigator Steven Avila.

On or about July 28, 2021, Complainant forwarded the scissor truss repair plan from Structurology to Respondent.

On or about August 12, 2021, Investigator Avila conducted a jobsite inspection.

On or about August 20, 2021, Investigator Avila issued a Written Directive from the Registrar to the parties that provided as follows:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on September 6, 2021.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Trusses built incorrectly according to the structural engineering firm structurology (engineer on plan)

Investigator’s Observation: At the time of the inspection the construction of the trusses appeared to have deviated from plans brought forward by the complainant. The trusses contained variations from the plans at the top of the short vertical web portions of the joist. Trusses built also have cuts in rafter boards not shown on plans. Trusses showed signs of sagging on the interior and exterior of the residence. Allegation is verified.

Respondent shall correct by the appropriate means

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - Noticeable drooping of roof corners, "swayback" visible in roof line.

Investigator’s Observation: At the time of the inspection from ground level outside of the residence there was visible drooping at the corners of the roof. Also visible was drooping/swayback at the roofline. Allegation is verified.

Respondent shall correct by the appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar;

Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 6 - Incorrect insulation applied in roof joists, and no insulation on existing block walls and on roof.

Investigator’s Observation: At the time of the inspection it was noted by the respondent that deviations from the plans were made in regards to the insulation. Respondent stated that an open celled spray in foam was used in the place of closed cell foam. Both parties also acknowledged that the plans called for a rigid foam on the exterior of the residence but not provided.

Allegation is verified. Respondent shall correct by the appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

On or about August 30, 2021, Respondent’s counsel requested that Respondent be given access to the home to commence repair work on September 13, 2021, and to complete it by September 17, 2021. According to the letter, Respondent proposed the following:

[Respondent] offers to address [Complainant’s] concerns as follows: 1) investigate the truss variance/movement/deflection issue at the great room; 2) the three trusses at the residence located at the great room that are have [sic] varied/moved/deflected will be raised at the center to the same height as the adjacent trusses that have not varied/moved/deflected; and 3) the loose and missing truss assembly bolts and nuts will be tightened or reinstalled and tightened. If warranted and necessary, the work scope will include installing one continuous 2” x 8” framing member at the bottom cord of each of the three truss assemblies.

Complainant refused to allow Respondent to perform the proposed corrective work because it was not supported by any engineering calculations, reports, or findings.

On or about September 1, 2021, Respondent emailed Structurology regarding the repair of the scissor trusses and requested a meeting to discuss the proposed repair plan.

On or about September 2, 2021, Respondent suggested September 13, 2021, as the date for the meeting “because that was the day we had proposed to start work there.”

Structurology was not available on September 13, 2021, but agreed to meet the following day, September 14, 2021.

On September 3, 2021, the parties agreed to meet at the house on September 14, 2021.

On or about September 8, 2021, Respondent’s counsel made the following offer:

Without waiver of or prejudice to [Respondent’s] rights, remedies, claims, and defenses, in addition to the work specified in my August 30, 2021, letter, [Respondent] will, if warranted and appropriate after its inspection and performance of the other work (raising the trusses and tightening the loose bolts and/or adding an additional continuous cord), perform the work stated on Engineer Jacob Morin’s “Truss Repair” drawing sealed on 8/24/21 (the “Morin Work”). However, [Respondent’s] offer to perform the Morin Work is conditioned on [Respondent] and/or its framing subcontractor self-performing the Morin Work. Furthermore, [Respondent] reserves the right to pursue a claim against [Complainant] and/or the design professionals to recover the cost of performing the Morin Work.

On or about September 14, 2021, Respondent, the framing subcontractor, Structurology, and the architect met at the house to discuss how the Structurology repair plan could be implemented.

Respondent would only agree to implement the Structurology repair plan if Structurology contributed money to the work and Complainant provided releases to the parties.

After September 14, 2021, all attempts to resolve the matter between the parties were unsuccessful.

After the deadline in the directive expired, Investigator Avila was notified no corrective work had been performed.

On or about October 4, 2021, Investigator Avila performed a compliance inspection at which he noted that no corrective work identified in the Written Directive had been completed by Respondent.

The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).

Investigator Avila testified that a homeowner may not dictate the manner of repairs a contractor performs following a written directive from the Registrar, but the contractor must perform the corrective work in accordance with the contract. Investigator Avila noted that the scissor trusses at issue in this matter varied from the Approved Plans, which would not have been a violation of the Registrar’s statutes if Complainant and the City of Phoenix accepted the variances.

Complainant testified that Respondent and/or its framing subcontractor failed to construct the scissor trusses per the plans and did not seek his approval for the changes. Complainant indicated that the exposed scissor trusses were an important design aspect of the remodel. Complainant stated that Structurology proposed three possible means to correct the scissor truss issue: 1) tear off the roof and rebuild the scissor trusses; 2) lift the joists off the scissor trusses and rebuild the trusses; 3) modify the scissor trusses with added materials. Complainant indicated that the third option seemed like the most reasonable plan even though it was a significant aesthetic change from the original design, but he was willing to accept it to resolve the issue. Complainant admitted that he refused to allow Respondent to perform any corrective work that had not been approved by a structural engineer. Complainant stated that he was not requiring Respondent to use the repair plan from Structurology, but he offered it as a possible plan. Complainant testified that he inspected the 200 plus bolts in the scissor trusses and discovered three loose bolts, all on only one of the scissor trusses. Complainant also indicated that the insulation levels in the home were important to him as an energy-saving matter. Complainant denied agreeing to any changes to the insulation called out in the Approved Plans.

Kelli LeVasseur, Structural Engineer with Structurology, testified that she was the designer of scissor trusses at issue in this matter. Ms. LeVasseur stated that the scissor trusses as built and installed deviated in a material way from her design and the letter from Mr. Starkes established the same. Ms. LeVasseur indicated that neither Respondent nor the framing subcontractor contacted her with any questions or concerns related to the design or construction of the scissor trusses and did not call for inspection of the scissor trusses.

Jacob Morin, Structural Engineer with Structurology, testified that the way the boards were arranged and cut in the as-built scissor trusses was a significant issue and that the as-built scissor trusses were dangerous. Mr. Morin attended the September 14, 2021 meeting to develop a repair plan, but left with the feeling that Respondent was not going to go forward with the proposed repair. Mr. Morin speculated it would take three weeks from start to finish to complete the repair he had proposed. Mr. Morin stated that the only way to return the project to be per plans would be to remove the wood that was cut improperly and replace it with wood cut as specified in the Approved Plans.

Philip Coppola, Construction Consultant and President of Philip S. Coppola & Associates, L.L.C., inspected the home and testified as to his conclusions. Mr. Coppola stated that he observed the three loose bolts on two of the scissor trusses and opined that the bolts were never tightened because there was no indent in the wood that would have occurred upon tightening. Mr. Coppola also pointed out a photograph showing that at least one of the scissor trusses was not installed plumb. Mr. Coppola observed cracking in the drywall at the peak of the ceiling. Mr. Coppola testified that “logic and industry standards” required that Respondent provide shop drawings of the scissor trusses to show how they were going to be built. Further, the completed scissor trusses should have been inspected once put into place. Mr. Coppola stated repairing the scissor trusses “by appropriate means” would require an engineered fix. Mr. Coppola testified that during his inspection of the property, he observed a sway in the roofline and measured the deflection at 2 3⁄4 inches. Mr. Coppola acknowledged that his string line was run top edges of the overlapping shingles and the deflection was measured at a valley of the overlapping shingles in the center of the roofline.

Mr. Kuhlwein testified that he received a set of plans from the architect on November 1, 2019, and bid the project based on those plans. Mr. Kuhlwein stated that when he entered into the contract on July 3, 2020, he “assumed” the plans he had previously been given were the Approved Plans and that it was a mistake for him to include in the contract that the project would be built per the Approved Plans when he had yet to see the Approved Plans. Mr. Kuhlwein maintained that usually the differences between the bid plans and the city-approved plans are minor and not substantial changes. Mr. Kuhlwein testified he did not receive the Approved Plans until he started the project and the stamped plans were put on the premises. Mr. Kuhlwein admitted there were no signed change orders on this project. Mr. Kuhlwein stated that it would have cost $8,000.00 more to install the EFIS system and Complainant was unwilling to pay extra to build the project per the Approved Plans. Mr. Kuhlwein denied it was possible to install the roof insulation the way Complainant wanted and he put as much insulation in the cavity he could. Mr. Kuhlwein admitted that he offered Complainant a credit for the insulation issue, but then billed Complainant for the full amount on the final invoice. As to the scissor trusses, Mr. Kuhlwein testified that he relied on the bid plans that had no details except where the plates and bolts would be. While Mr. Kuhlwein stated that the scissor trusses were built according to the Approved Plans, he acknowledged that the framing subcontractor told him of its concern that there was not enough “meat” so it used bigger bolts and plates. Mr. Kuhlwein also admitted that he did not communicate that concern to the architect or engineer of record. Mr. Kuhlwein concluded that “we thought we were making it better using bigger bolts and plates” and that Respondent was “not altering the plans” but was “making it better.” Mr. Kuhlwein stated that the deflection on the scissor trusses as measured with a laser level was only 1.5 inches.

Carl Josephson, Licensed Engineer, stated he had not been on site to inspect the project, but testified that he believed the issue with the scissor trusses was the faulty design. Mr. Josephson opined that the loosened bolts was a negligible cause of the issues. Mr. Josephson acknowledged that the truss members were not cut per plan. However, Mr. Josephson stated that the design was so grossly underdesigned that whatever the framer did was a negligible cause of the failure. Mr. Josephson admitted that cutting the top chord was “not desirable” but that it did not make a significant difference in this instance. Mr. Josephson concluded that the as-built scissor trusses would not work, but the original design scissor trusses would not work either, and these scissor trusses were “doomed to fail.” Mr. Josephson admitted that Respondent did not built the scissor trusses per the graphic depiction in the Approved Plans, and that it should not be deviating from the plans. Mr. Josephson stated that if a contractor was going to deviate from the plans, it should be brought to the attention of the engineer’s attention and it is reasonable to ask for clarification. Mr. Josephson admitted that he did not analyze the as-built scissor trusses.

Mr. Starkes testified that he determined the scissor trusses were insufficiently designed and he made changes to the plan that he thought would make the scissor trusses a better product. Mr. Starkes stated he spoke to Mr. Kuhlwein about the issue a couple of times and that it was up to Mr. Kuhlwein as to whether he would contact the engineer about the concerns. Mr. Starkes indicated he believed Mr. Kuhlwein would speak to someone as needed, but he did not know if those conversations occurred.

Halbert Tsosi, Respondent’s employee, testified that he observed the painters loosening all the bolts on the scissor trusses one by one. Mt. Tsosi was unsure exactly when he saw this occur or how long it took him to report his observations to Mr. Kuhlwein.

Administrative notice is taken of Respondent’s prior License record on April 25, 2022. Such prior License record reflects that Respondent’s License No. 256081 was first issued on June 6, 2009, and is active. Such prior License record also reflects that there were no other open or prior complaints 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 Vazzano 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, by a preponderance of the evidence, that Respondent did not complete the project in accordance with the plans without Complainant’s consent. While Respondent argued the plans were not specific or clear, Respondent’s own expert witness acknowledged that the scissor trusses were not built per the Approved Plans. Additionally, Mr. Kuhlwein and Mr. Starkes both stated that they did not change the plans, but “made them better” with a list of ways the scissor trusses differed from the Approved Plans. Mr. Kuhlwein also admitted that the insulation was not installed in accordance with the Approved Plans. Assuming, arguendo, Complainant and Respondent made a verbal agreement to change the insulation for an associated credit in the contract, Respondent charged Complainant the full amount of the contract in the final invoice, thereby failing to abide by such an agreement.

The evidence established, by a preponderance of the evidence, that the deviation from the Approved Plans was prejudicial to Complainant. The drywall was cracking along the ceiling peak throughout the great room. The immediate need for shoring also evinced the harm to Complainant. While Respondent asserted that the faulty design of the scissor trusses was to blame for the failure of the scissor trusses, the trusses were not built per the Approved Plans, so it cannot be said the design itself was flawed. As to the insulation, Complainant suffered a loss in insulation rating going forward. Again, assuming a verbal agreement to change the insulation for an associated credit in the contract, Complainant was harmed in the amount of the purported agreed upon price change that was not provided by Respondent.

Therefore, Complainant established that Respondent departed from or disregarded the plans in violation of A.R.S. § 32-1154(A)(2)(a).

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.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

The evidence established that Respondent did not complete the corrective work following the written directive being issued. Of note, on August 30, 2021, ten days after the written directive was issued, Respondent first offered to perform corrective work that it wanted to begin on September 13, 2021, and complete by September 17, 2021. Thus, Respondent proposed beginning the corrective work one week after the deadline in the written directive expired. Respondent argued at the hearing that it was impossible to complete the corrective work within the 15 days allowed by the written directive, and therefore, Respondent was not afforded a “reasonable period of time” to complete the work following the issuance of the written directive as required by the statute. However, according to Respondent’s first proposal, the work would have taken only 4 days. It was Respondent’s decision to wait 10 days to make the offer to start work 7 days after the deadline in the written directive expired. Respondent did not request or obtain an extension from the Registrar to complete the corrective work after the deadline expired. After the deadline in the written directive expired, Complainant had no obligation to allow Respondent onto the property or to perform any additional work on the project.

Respondent also asserted that Complainant was attempting to demand the manner in which Respondent performed the corrective work in violation of the Registrar’s policies. While it is generally accurate that a homeowner may not prescribe the manner in which a contractor performs corrective work, that policy is not a consideration in this matter. The Registrar’s policy is applicable when the end result is the completion of the contract as agreed upon, such as the installation of a tile floor, a kitchen remodel, or a new roof. In this case, however, the issue is that Respondent deviated from the Approved Plans and the contract of the parties. Accordingly, Complainant had to agree with the corrective work proposed to be done by Respondent when the corrective work would result in further changes to the Approved Plans and/or contract. Alternatively, had Complainant refused an offer from Respondent to build the trusses per the original plans, remove the roof, install the per-plans trusses, and replace the roof in such a manner that the end result would be in accordance with the Approved Plans, that would have constituted a denial of access.

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. 256081 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.

-54864001

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-137160-45720000Done this day, May 4, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000By Miranda Alvarez

Legal Secretary