ALJDEC decisions subject to certification as final

2014A-2633-ROC · Registrar of Contractors · 2016-01-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 2015, at 8:00 a.m. APPEARANCES: Park Plaza Liquor and Deli (“Complainant”) appeared through John Phillips (“Mr. Phillips”), its owner; Rana Fire Protection LLC (“Respondent”) appeared through Dean Rana (“Mr. Rana”), its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On May 26, 2007, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR-16.233792-D for dual fire protection systems to Respondent. 2. On July 20, 2007, the Registrar issued License No. CR-5.235885-D for dual restaurant hoods and paint booths to Respondent. 3. On June 27, 2014, Complainant filed a complaint against Respondent with the Registrar, alleging that Respondent had contracted to perform work at Complainant’s commercial restaurant and that Respondent failed to show up to discuss problems with the local building authorities, despite having been paid the full contract price of $13,677.65, and had left an open hole in the roof, which caused Complainant to shut down operations for a time. 4. After Respondent failed to resolve the complaint, the Registrar issued a Citation, which charged cause to revoke, suspend, or otherwise discipline Respondent’s licenses under A.R.S. §§ 32- 1154(A)(1) and 32-1154(A)(22). 5. Respondent filed a timely written answer to the Citation, asserting that it had timely performed the contract and that any delays in the completion of the job were due to others’ failures to comply with the requirements of the City of Prescott’s Building Inspector, Randy Pluimer (“Building Inspector”), and Fire Department/Fire Prevention Inspector, David Mecca (“Fire Inspector”). 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 7. An evidentiary hearing was held on December 16, 2015, via videoconference from the Registrar’s Flagstaff office. Complainant submitted nineteen exhibits and presented the testimony of Mr. Phillips. Respondent presented the testimony of Mr. Rana. The Registrar’s assigned Investigator, Jim Dimond (“Investigator Dimond”), also testified. Hearing Evidence 8. On or about February 6, 2014, Respondent submitted a proposal to install a fire suppression system, new exhaust blower, and electrical package in Complainant’s existing restaurant. Respondent’s proposal promised a “turn key install” and to “have the existing kitchen hood ready and operational in about 7-10 business days after start of install.” Respondent’s proposal also warned that “we will need to have the area of the restaurant closed (or taped off) for the remodel and safety of current employees and approval of the Prescott fire department before reopening.”[1] On or about February 14, 2014, Complainant accepted the proposal. 9. On or about March 4, 2014, the Fire Inspector issued a Hood System Review to Respondent, which included the notation, “All items listed as critical shall be revised and re-submitted for approval. If the plans must be re-submitted due to . . . ‘critical’ items the contractor shall address the ‘non-critical’ items as well and include them with the re-submittal.”[2] Seven critical items required revision and resubmittal. 10. On or about March 24, 2014, the Fire Inspector issued a Commercial Plan Review to Respondent that included seven comments, including that the air flow requirement needed to be increased.[3] 11. On or about April 7, 2014, the Fire Inspector issued a second Commercial Plan Review to Respondent that included the comment, “New Class 2 hood over pizza oven.”[4] 12. On or about April 11, 2014, the Fire Inspector issued a Hood System Plan Review to Respondent that included the following critical item: Note: System you are proposing is outdated according to the manufacture[r]. System still can be used if only the nozzle for this unit can be used. The tank shall be the one with the silver label and blue lettering with the hydro test up to date. The nozzle for the duct shall be a NL type depending on the size of [duct] work which is not shown. The plenum nozzle shall be a (NLA) and the manufacture[r] states the oven opening can be protected as [per] the requirement of a chain broiler which is a (NLUB).[5]

13. On or about April 16, 2014, the Building Inspector issued a permit for the project.[6] 14. On or about April 23, 2014, the Fire Inspector issued a third Commercial Plan Review to Respondent that included the following comments: 1. Show where the make up air is coming from is it from the room, what type of unit is replacing the exhaust fan

2. Engineering balance tests will be required at final before use[7]

15. Mr. Phillips testified that Respondent failed to respond to the Fire Inspector’s concerns and requests for plan amendments. 16. Mr. Rana testified that because the dispute was between Mr. Phillips and the Fire Inspector, he did not wish to become involved. 17. On or about July 3, 2014, Investigator Dimond notified the parties that he would be performing a jobsite inspection on July 10, 2015, at 9:00 a.m. 18. On July 10, 2015, Investigator Dimond performed a jobsite inspection. At that time the hood was still not operational. 19. Investigator Dimond testified that he noted a large hole through the roof of the business that was covered by an unsecured piece of plywood with a pallet on top of it. 20. Inspector Dimond’s jobsite inspection note stated in relevant part as follows: Per the complainant, he has the work scheduled for completion by another contractor the Wednesday following the inspection. This is a very busy market/deli. . . . .

I spoke with Dave Mecca at Prescott fire prior to the inspection and he relayed to me that the issue with the project not moving forward [] was caused by the respondent as he could not get his paperwork and plans right. The CBO for Prescott, Randy Pluimer also confirmed that the respondent was problematic when it came to complying with the city.

Respondent did not attend the jobsite inspection and did not inform Investigator Dimond that he was prepared to move forward if required. 21. Mr. Rana testified that he did not attend the jobsite inspection due to hostility from Mr. Phillips. 22. Mr. Rana called the Administrative Law Judge’s attention to Respondent’s letter to the Registrar dated July 9, 2014, setting forth a chronology to which it attached certain emails.[8] According to Respondent’s chronology, on May 8, 2014, the Fire Inspector informed Mr. Rana that his calculations were unacceptable, on May 23, 2014, Mr. Rana spoke to Complainant’s engineer, Jamie Teglas, and on May 28, 2014, Mr. Phillips left a message for Mr. Rana for Respondent to install the hood because the calculations had been approved. Mr. Rana stated that he “put in several phone calls to Dave Mecca regarding this approval and stopped by his office several times not until shown proof would we start did not want any repercussion from the city or fire department on just [Mr. Phillips’] word.”[9] 23. Complainant submitted a bid form Custom Steel Fabrication, Inc. dated June 28, 2014, for a hood.[10] Complainant also submitted sealed letters from engineer Jamie M. Teglas of Teglas Engineering Associates Inc. dated June 26, 2014, that he had completed calculations for make-up air for the new hood to allow Complainant to continue using the existing oven.[11] 24. Complainant also submitted a proposal from Mile High Roofing dated July 31, 2014, to repair the roof. 25. Complainant also submitted the City of Prescott’s Building Inspection Activity/ History Report that showed that on July 17, 2014, the Fire Inspector received and approved the engineering calculations for the new hood and the existing oven, on July 28, 2014, the Fire Inspector approved the final plan review, on July 31, 2014, the Fire Inspector performed the final hood inspection and approved the installation, and on August 28, 2014, the Building Inspector closed out the project.[12] 26. On December 9, 2014, Investigator Dimond on behalf of the Registrar issued a Directive to Respondent to repair the roof and complete the installation of the pizza oven on or before 5:00 p.m. on December 24, 2014. Inspector Dimond explained that his work volume prevented him from issuing the directive any earlier. 27. Administrative notice is taken of the Registrar’s public website. According to the Registrar’s records, on December 10, 2015, both of Respondent’s licenses were current and in good standing. License No. CR16.233792-D had been briefly administratively suspended three times for lack of bond or non-renewal. License No. CR5.235885-D had been briefly administratively suspended four times for lack of bond or non-renewal. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[13] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[14] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[15] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[16] A preponderance of the evidence is “[t]he 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.”[17] 4. Respondent promised a “turn-key” installation of the hood within ten business days after beginning the project. Complainant established that Respondent failed to work with Complainant, its engineer, and the Fire Inspector to perform its project and instead, blamed everyone else for the problems on the project. At the end of May 2014, Respondent stopped working on the project. Therefore, Complainant established that Respondent abandoned the project, furnishing cause to discipline its licenses under A.R.S. § 32-1154(A)(1).[18] 5. By the time the December 9, 2014 Directive was issued, Respondent could not have complied with the Directive because the project had been completed by others and had passed all necessary inspections. Therefore, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(22).[19] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, License Nos. CR-5.235885-D and CR-16.233792-D of Respondent Rana Fire Protection LLC shall be suspended for a period of one day. 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 five days from the date of that certification. Done this day, January 4, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Complainant’s Exhibit C-2. [2] Complainant’s Exhibit C-9. [3] See Complainant’s Exhibit C-6 at 2. [4] See Complainant’s Exhibit C-7 at 2. [5] Complainant’s Exhibit C-10. [6] See Complainant’s Exhibit C-3. [7] Complainant’s Exhibit C-8 at 2. [8] See the Registrar’s electronic record at Insp Correspondence From Respondent1.pdf. [9] Id. at 5. [10] See Complainant’s Exhibit C-19. [11] See Complainant’s Exhibit C-17, C-18. [12] See Complainant’s Exhibit C-13, C-14. [13] See A.R.S. § 32-1154(A). [14] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [15] See A.A.C. R2-19-119(B)(2). [16] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [17] Black’s Law Dictionary at page 1220 (8th ed. 1999). [18] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [19] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure 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.”

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