ALJDEC decisions subject to certification as final
2021A-00663-CHC-ROC · Registrar of Contractors · 2021-09-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Beau Brandt,
COMPLAINANT
v.
Kaiser Mechanical Engineering & General
Contractor, LLC
License No. ROC 328782,
RESPONDENT
No. 2021A-00663-CHC-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: August 25, 2021
APPEARANCES: Complainant Beau Brandt appeared on his own behalf. Bethany Johnson and Richard Brandt appeared as witnesses for Complainant. Respondent Kaiser Mechanical Engineering & General Contractor, LLC failed to appear. Arizona Registrar of Contractors Investigator Beau Cruz appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
Kaiser Mechanical Engineering & General Contractor, LLC (“Respondent”) is the holder of License No. 328782 issued by the Arizona Registrar of Contractors (“Registrar”).
On or about January 15, 2021, Beau Brandt (“Complainant”) contracted with Respondent for Respondent to install a concrete pad foundation on Complainant’s residential property for the eventual construction of a garage/shop. The contract price was $20,000.00. Complainant paid Respondent $10,000.00.
On or about February 16, 2021, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.
The Registrar assigned the Complaint to Investigator Beau Cruz. After a Jobsite Inspection, Investigator Cruz issued a Written Directive to Respondent 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 April 12, 2021.
You are directed to remedy the following violations by the appropriate means:
In light of a possible leach field discovered under the pad site, the complainant who pulled the permit and is also owner/builder, the complainant will be the party responsible to have area mapped, discover if leach pad is under pad site, and resubmit plans to local governing municipality for approval upon discovery. After approval from the local governing municipality as to how to proceed, respondent may then proceed under approval of complainant. Complainant will be responsible for contacting the local governing municipality for inspections and, if the local jurisdiction determines that, there are corrective issues during the inspections the Respondent will have to Correct by Appropriate Means.
Complaint Item 2: Clean out footing (footers are not the correct depth per
plan and are messy) (measurements are off in several areas)
Investigator’s Observation: Clean out footing trenches to assure 12” depth as directed in local governing municipality inspection report dated 2/16/21.
Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9- 108(A) A contractor shall perform all work in a professional and workmanlike manner and, (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 skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of similarly licensed contractor possessing ordinary skills and capacity. After approval from the local governing municipality as to how to proceed, respondent may then proceed under approval of complainant. Complainant will be responsible for contacting the local governing municipality for inspections and, if the local jurisdiction determines that, there are corrective issues during the inspections the Respondent will have to Correct by Appropriate Means.
Complaint Item 3: Secure rebar to assure 3" enforcement in concrete
Investigator’s Observation: Secure rebar to assure 3" enforcement in concrete as per local governing municiplaity inspecrtion dated 2/16/21.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above. After approval from the local governing
municipality as to how to proceed, respondent may then proceed under approval of complainant. Complainant will be responsible for contacting the
local governing municipality for inspections and, if the local jurisdiction determines that, there are corrective issues during the inspections the Respondent will have to Correct by Appropriate Means.
Complaint Item 4: Assure bolt and placement per plan
Investigator’s Observation: Assure bolt placement per plans as directed in local governing municipality inspection report dated 2/16/21.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above. After approval from the local governing
municipality as to how to proceed, respondent may then proceed under approval of complainant. Complainant will be responsible for contacting the
local governing municipality for inspections and, if the local jurisdiction determines that, there are corrective issues during the inspections the Respondent will have to Correct by Appropriate Means.
Complaint Item 6: Is not square (its of inches in all areas)
Investigator’s Observation: Forms not properly braced and or aligned (squared). Improve forms and placement as directed in local governing municipality inspection report dated 2/16/21.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above. After approval from the local governing
municipality as to how to proceed, respondent may then proceed under approval of complainant. Complainant will be responsible for contacting the
local governing municipality for inspections and, if the local jurisdiction determines that, there are corrective issues during the inspections the Respondent will have to Correct by Appropriate Means.
Complaint Item 8: Failed 1st county inspection on 2/16/2021 which was called per contractors request.
Investigator’s Observation: Confirmed via report tag of local governing municipality. Respondent is to ensure that all issues not passed by the inspector are corrected and, re-inspected by the local governing municipality after the issue with possible leach field under pad site, has been inspected by third party and or local governing municipality and corrected as per local governing municipality.
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above. After approval from the local governing
municipality as to how to proceed, respondent may then proceed under approval of complainant. Complainant will be responsible for contacting the
local governing municipality for inspections and, if the local jurisdiction determines that, there are corrective issues during the inspections the Respondent will have to Correct by Appropriate Means.
Complaint Item 9: Suggest improving bracing and forms (As the forms are
warped bad)
Investigator’s Observation: Forms not properly braced and or aligned. Improve forms and placement as directed in local governing municipality inspection report dated 2/16/21 (P-4, 5, 6, 7 & 8).
Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A)(B) cited above. After approval from the local governing
municipality as to how to proceed, respondent may then proceed under approval of complainant. Complainant will be responsible for contacting the local governing municipality for inspections and, if the local jurisdiction determines that, there are corrective issues during the inspections the Respondent will have to Correct by Appropriate Means.
The following complaint items require no action by the Respondent:
Complaint Item 1: Time Line has not been meet (Lack of communication)
Investigator’s Observation: Work stopped when possible alleged leach field discovered under pad placement.
Governing Rule: N/A: Complainant was party who pulled permit and submitted plans to the local governing municipality. Complainant will be the
party responsible to have area mapped, discover if leach pad is under pad site, and resubmit plans to local governing municipality for approval upon discovery.
Complaint Item 5: Pad is not level (Visibly has low and high spots)
Investigator’s Observation: Investigator does not perform elevation inspections. If complainant is concerned that elevation of grade or grade is not level, complainant should retain the services of a third party to check such.
Governing Rule: N/A: Investigator does not perform elevation inspections.
If complainant is concerned that elevation of grade or grade is not level, complainant should retain the services of a third party to check such.
Complaint Item 7: lack of job preparation (As he was always needing more
materials and not planning the job out)
Investigator’s Observation: Allegation by the complainant, does not implicate workmanship issue for me to observe and report on, included in these notes in the interest of administrative completeness.
Governing Rule: N/A: Allegation by the complainant, does not implicate workmanship issue for me to observe and report on, included in these notes in the interest of administrative completeness.
All errors in original.
On the deadline date for compliance with the Written Directive, Complainant contacted Investigator Cruz. Investigator Cruz documented that contact as well as his attempts to contact Respondent in his April 14, 2021 Compliance Jobsite Inspection Notes as follows:
Compliance jobsite inspection not scheduled and/or performed. Complainant sent email to this investigator on April 12, 2021 attesting that after several attempts to reach out to the respondent, respondent has failed to respond or abide per the directive. Investigator called respondent on April 13, 2021 at 08:08 AM to inquire if has abided per the directive and, no answer, was unable to leave voice message due to respondent cellular telephone mailbox being full. Sent email to respondent on April 13, 2021 to inquire same, and as of this date of April 14, 2021, respondent has failed to respond to email.
All errors in original.
Thereafter, Investigator Cruz forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(2)(b), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), A.R.S. § 32-1154(A)(22), and A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
The hearing of this matter was scheduled to convene on July 9, 2021. However, on July 1, 2021, Respondent filed a Motion to Continue with the Office of Administrative Hearings for the following reason: “Not able to obtain adequate legal representation by hearing date. [N]eed additional time for my lawyer to be present to represent my company please.”
On July 7, 2021, the undersigned issued a Minute Entry Granting Continuance advising the parties that the hearing would convene on August 25, 2021, at 9:00 a.m., in person at the Office of Administrative Hearings. That Minute Entry was issued to Respondent’s email address of record that had been used throughout the course of the proceedings and that was contained on Respondent’s Motion to Continue.
Respondent did not appear for hearing through an authorized member, employee, or attorney. Respondent did not request an additional continuance. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.
Investigator Cruz testified that Complainant had relocated the leach pad in order for Respondent to comply with the Written Directive and that he had received an email from Complainant on March 11, 2021, advising him of such. Investigator Cruz testified consistently with his findings contained in the Written Directive and the Compliance Jobsite Inspection Notes. Investigator Cruz also testified that when he spoke with Respondent’s representative, Respondent was “adamant that he would not do anything else without other money.”
Investigator Cruz conducted a pre-hearing inspection on July 6, 2021, and according to his Prehearing Jobsite Inspection Notes, “Upon arrival at jobsite inspection, investigator observed that others poured concrete pad and erected a steel building, prior to pre-hearing jobsite inspection.” Investigator Cruz testified consistently with the findings contained in those notes.
Investigator Cruz further testified that he issued a Warning Letter to Respondent because there was no written contract for the project, and therefore, Respondent was not in compliance with Registrar requirements for minimum elements of a contract.
Complainant testified that there were numerous problems with the project that are depicted in the photographs taken by Investigator Cruz at the jobsite inspection. Complainant further testified that he requested Respondent to perform the necessary work on multiple occasions, however Respondent has not had any contact with Complainant since February 2021.
Complainant testified that at the jobsite inspection, Respondent had indicated that the leach lines prevented Respondent from performing corrective work. However, Complainant provided a letter dated March 26, 2021, authored by John Flumerfelt, Senior Investigator for Pinal County Building Safety Division which indicates the following:
Re: Approval of Separation of this Project (PER20-04219) from the Septic System
After research and observation, I have concluded that the garage project on this permit is sufficiently separated from the active septic system and the project siting does not encroach into the required clearance space of the active septic system. Siting of this project is OK.
I have reviewed the General Aquifer Protection Permit TSDS 10-0123, for this lot, as approved 2/3/2011. I have spoken with the Registered Sanitarian for Pinal County, David Cruce. We are both sure of the accuracy of the installation because we know both the applicant, Barb Zeilsdorf, Digit Construction and the Environmental Health inspector at the time, RS Sonya Mendoza, and the work that they have done. The evidence of the installation at the site convinces me that a variation of the leach lines' installation from the plan is extremely unlikely. Likewise, to not completely abandon any previously installed waste disposal system is also extremely unlikely. Following from those conclusions, any piping or material that may have been used for previous sanitary draining purposes and found within the foundation of this project, can be discarded or ignored because this piping or material is of no active use.
I hope this information is of benefit to you and you may share it, as my professional opinion, with others as you wish. This information will be relied upon by the County in the ongoing inspection process of your project. Please feel free to contact me if you have any questions or concerns.
Administrative notice is taken of Respondent’s prior License record on August 31, 2021. Such prior License record reflects that Respondent’s License No. 328782 was first issued on May 7, 2020, and is active. Such prior License record also reflects that there is only the instant open complaint, no resolved/settled/withdrawn complaints, and no discipline 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 that Respondent’s work departed from a building code of the local municipality as evidenced by the local governing municipality inspection report dated 2/16/21 that was referenced in the Written Directive issued by Investigator Cruz. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(2)(b).
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 provide a written contract for the project to Complainant. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).
The evidence established that Respondent did not complete the corrective work following the issuance of the Written Directive. 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. 328782 for a period of seven (7) 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 (30) 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)(7), 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 forty (40) days from the date of that certification.
-54864001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
-137160-45720000Done this day, September 7, 2021.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
-54864001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
001
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
-137160-45720000