ALJDEC decisions subject to certification as final

2017A-1645-CHC-ROC · Registrar of Contractors · 2017-09-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

David Michael Bessette,

COMPLAINANT,

v.

Tribal Waters LLC,

License No: 224021, 251147

RESPONDENT.

No. 2017A-1645-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 20, 2017, and August 14, 2017

APPEARANCES: Complainant David Michael Bessette was represented by Guy Bluff. Respondent Tribal Waters LLC was represented by James Sparks.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Tribal Waters LLC (Respondent) is the holder of License Nos. 224021 and 251147 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 28, 2015, David Michael Bessette (Complainant) signed a contract with Respondent for the construction of a swimming pool, spa, and masonry wall.

On or about March 27, 2017, the Registrar received a Complaint against Respondent from Complainant alleging poor work and abandonment with respect to the project.

On or about March 29, 2017, Joseph Brown, co-owner and Qualifying Party of Respondent, and Daniel Reyes, General Manager of Respondent, visited the jobsite to meet with Complainant to determine a plan going forward to complete the project. During the interaction, which was contentious on both sides, Complainant stated six times, “Get off my property.”

The Registrar assigned the complaint to Investigator Ted Stodder. After a jobsite inspection, Investigator Stodder issued a written directive to Respondent that provided as follows:

After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). 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. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 9, 2017.

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

Complete pool/spa project per approved plans/specifications and contract.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

On or about April 27, 2017, Respondent, through its attorney, contacted Complainant asserting that it disagreed with the directive but intended to comply and requesting access to the property beginning on Monday, May 1, 2017, until the project was complete.

On or about April 28, 2017, Complainant, through his attorney, responded to the request indicating that Complainant had a pre-planned trip and was out of town. Complainant provided that the site would be available on Saturday, May 6, 2017, and Respondent could consider the deadline for compliance to be extended eight days to accommodate for the delay.

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

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

Investigator Stodder testified that because the project was not done at the time of the inspection, he did not review the project for code violations or for workmanship issues. Thus, Investigator Stodder issued a directive requiring Respondent to complete the project, then the project could be reviewed for code violations and/or workmanship issues. Investigator Stodder testified that he did not expect the project to be finished within the 15 day deadline set forth in the directive, but that Respondent was expected to begin work on completing the project. Investigator Stodder did not provide any quantitative amount of work that would need to be completed prior to the deadline for the Registrar to consider Respondent had complied with the written directive. Investigator Stodder stated he did not recall any request from either party to extend the deadline for compliance.

Mr. Reyes testified that on the first day of excavation, the heavy equipment erroneously pulled into the neighbor’s driveway and the neighbor came out very upset. At that point, Complainant approached Mr. Reyes saying that they had already “f’ed this up” and was “hammering his finger into [Mr. Reyes’] chest” three or four times. Mr. Reyes reported that he had recently undergone extensive reconstructive surgery and the assault caused him physical harm. Mr. Reyes stepped away from Complainant and told Complainant not to touch him again. Mr. Reyes testified he then said they were cancelling the contract and told everyone to pack up to leave. Mr. Reyes indicated that Complainant’s attitude changed right away and Mr. Reyes believed the project might be salvaged, so the workers remained on site that day. Mr. Reyes stated that during the entire project, Complainant was “on top of the guys, demanding explanations about everything they were doing.” Mr. Reyes indicated that subcontractors told him that Complainant could not be on top of them about everything they were doing or they would pull off the job. Mr. Reyes also indicated that following the hard dig performed by an independent contractor paid by Complainant directly, the contractor left the rocks and soil behind per Complainant’s request and that some of the rocks were in the area where the masonry wall was to be placed. Mr. Reyes asserted that, as of the deadline in the directive, the contract could not be completed because the masonry wall could not be built on top of the rocks and without the masonry wall, the project could not pass final inspection.

Mr. Brown testified that he runs the commercial side of Respondent’s business and was only on Complainant’s project during the March 29, 2017 interaction. Mr. Brown indicated that Respondent failed to comply with the directive because they were afraid of Complainant because he was “a hothead.” Mr. Brown indicated that based on Complainant’s assault of Mr. Reyes and his attitude on the project, Mr. Brown was concerned for the safety of his workers. Mr. Brown also testified that any code violations that may have existed at the time of the jobsite inspection would not have existed if the project had been completed.

Michael Ramirez, Project Manager, testified that Complainant was on the site when the excavators were there and saw what they did. Mr. Ramirez stated that Complainant told him that he wanted to keep the big pile of rock and wanted everything left on the property. Mr. Ramirez indicated that he was on this site the first day when Complainant poked Mr. Reyes in the chest and that he “knew it would be a bad job.” Mr. Ramirez also stated that Complainant made comments throughout the job such as “make sure your Mexicans pick up their trash” and “these guys wouldn’t make it a day back East because they suck.” Mr. Ramirez stated that he personally thought Complainant was racist, but that he personally was not offended because he does not get offended by such comments. Mr. Ramirez testified that Complainant would not let the workers do their job, was always questioning everything they did, and wanted to reengineer the plans every day.

Complainant provided the testimony of Lori “Middy” Droeg and Daniel Youngblood as expert witnesses to support the conclusion that the work performed on the project did not comply with applicable building codes. Both witnesses questioned the lack of appropriate shading, the lack of proper sleeving on the gas lines, the lack of primer on all joints, and the placement of the rebar.

Complainant denied assaulting Mr. Reyes and testified that he could say that Mr. Reyes “walked into his finger” on the first day of the job. Complainant asserted that he never requested that the excavator leave the rocks on the site. Complainant stated that he expected there to be several feet of dirt before they hit rock and that he wanted the dirt left on site. Complainant stated that he saw the plumbers install the pipes and observed that they were not using the primer properly. Complainant indicated that after he questioned the plumbing contractor, he saw the workers remove and replace six or seven fittings. Complainant acknowledged that he had several questions for the workers every day when they arrived, but denied that he harassed the workers or had done anything to scare them. Complainant also denied making any statements about the workers being Mexicans, but did say that he could not speak Spanish. Complainant testified that he was fearful for his “health and life” on March 29, 2017, when Mr. Brown and Mr. Reyes arrived on the site. Complainant acknowledged that he did not make a request to the Registrar that the deadline for compliance be extended.

Administrative notice is taken of Respondent’s prior License record on September 5, 2017. Such prior License record reflects that Respondent’s License No. 224021 was first issued on September 18, 2006, and is current and Respondent’s License No. 251147 was first issued on January 6, 2009, and is current. Such prior License record also reflects that there were two open complaints and no prior complaints against Respondent’s License No. 224021 and no open or prior complaints against Respondent’s License No. 251147.

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 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).

As was previously noted, the Registrar did not cite Respondent for abandonment under A.R.S. § 32-1154(A)(1). Thus, the fact that the project was not complete does not, in and of itself, constitute a violation of the statutes charged in the citation.

The evidence established that Respondent had not completed the project at the time of the jobsite inspection. As a result, Investigator Stodder did not make any findings regarding any alleged workmanship violations. Because of this, Complainant focused at the hearing on the alleged violations of building codes. As was noted repeatedly during the hearing, any building code violations existing on the project as it sits would not exist if the project was completed because the project could not proceed to the next stage until the county inspection approved the work already done. A.A.C. R4-9-108 cannot be read to require a contractor to pass every inspection on the first attempt, but can only be read to require the completed project to comply with the applicable building codes and professional workmanship standards. Therefore, Complainant failed to establish that Respondent did not complete the project in a workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).

The evidence established that Respondent did not comply with the written directive. Thus, the question before this tribunal is whether Respondent had valid justification for its failure to comply with the written directive. As presented at hearing, Respondent indicated it did not comply with the written directive based on Complainant’s assault of Mr. Reyes, Respondent’s safety concerns for its workers, and Complainant’s denial of access.

Complainant attempted to minimize the allegation that he assaulted Mr. Reyes and asserted that poking someone in the chest did not constitute an assault. Arizona statute provides a person commits assault by

1. Intentionally, knowingly or recklessly causing any physical injury to another person; or

2. Intentionally placing another person in reasonable apprehension of imminent physical injury; or

3. Knowingly touching another person with the intent to injure, insult or provoke such person.

A.R.S. § 13-1203. As related at the hearing, based on the circumstances and Complainant’s statements at the time, Complainant’s poking or thumping or hammering of his finger against Mr. Reyes’ chest could reasonably be interpreted as evidence that Complainant had the intent to injure, insult, or provoke Mr. Reyes. Thus, the Administrative Law Judge concludes the act constituted an assault.

Complainant also insisted that he had not demonstrated any reason for Respondent to fear for the safety of its workers. While Complainant denied the allegations against him, the weight of the credible evidence established that, when taken together, Complainant’s assault of Mr. Reyes, Complainant’s statements regarding the workers’ ethnicity, and Complainant’s questioning of every move made by the workers and constantly “being on top of them,” Respondent appropriately interpreted Complainant’s conduct as a threat to the safety of its workers going forward.

Complainant also asserted that he had not denied Respondent access to the project to comply with the written directive. Complainant argued that during the March 28, 2017 interaction, he told Mr. Brown and Mr. Reyes to leave his property, but he never told them that they could not come back to finish the project. While technically true, this is a distinction without consequence. Given the circumstances surrounding the interaction and the recording itself, it was clear Complainant intended that Respondent not return to the project. As to access during the window of time to comply with the written directive, Respondent did not contact Complainant right away, but once contact was made, that access was denied for a period of time. Complainant did grant access starting on a Saturday, but not counting the weekend, only allowed Respondent two days’ of access before the deadline in the written directive expired. It is possible that Respondent could have started to comply with the written directive at that time; however, Respondent could not have performed any substantial work toward the completion of the project in two days. Further, while Complainant told Respondent that the deadline would be extended to account for the delay in access, Complainant made no request to the Registrar that the deadline formally be extended.

While an argument could be made that any one of these factors would not provide a valid justification for Respondent’s failure to comply with the written directive, taken together, Respondent’s failure to comply with the written directive was justified. Therefore, Complainant failed to establish 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

It is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant David Michael Bessette’s complaint in Case No. 2017-1645 against Respondent Tribal Water LLC’s License Nos. 224021 and 251147.

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, September 5, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors