ALJDEC decisions subject to certification as final
2022A-04948-CHC-ROC · Registrar of Contractors · 2022-11-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
White Mountain Nature Center,
COMPLAINANT
v.
4H RESTORATION LLC
License No. ROC 335018,
RESPONDENT
No. 2022A-04948-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 24, 2022
APPEARANCES: John Glitsos appeared via Google Meet on behalf of Complainant White Mountain Nature Center. Respondent 4H Restoration LLC was represented by William Breier, Esq. who appeared via Google Meet. Registrar of Contractors Investigator Miles Crosby appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
______________________________________________________________________
FINDINGS OF FACT
4H Restoration LLC (Respondent) is the holder of License No. 335018 issued by the Arizona Registrar of Contractors (Registrar).
On or about April 30 2022, White Mountain Nature Center (Complainant) agreed with Respondent for expansion of their nature center which included constructing an amphitheater. On June 2, 2022, Respondent was terminated from the project.
On or about June 16, 2022, the Registrar received a Complaint containing twenty two items against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Miles Crosby.
On or about July 18, 2022, the Registrar informed the parties that the complaint was closing the complaint.
Thereafter, a jobsite inspection was performed on July 26, 2022.
Investigator Crosby’s notes regarding the same provided as follows:
I observed the overall site conditions and workmanship to not meet standards. The items listed were/are not completed according to plans and specs. The Respondent does not reply to any notifications but Egnyte read receipts show that the Respondent did receive the notices.
The grading on site either had not been completed or was not completed according to plans.
The Respondents actions leading up to the police report have been noted by the Complainant and the report has been included in the case file.
Overall, the project is still in progress but due to the Respondent unprofessionalism and aggression towards the Complainant, the Complainant does not feel safe with the Respondent and does not want to move forward with the Respondent. The Respondent sent odd texts messages stating he was reporting the Nature Center to “the FEDS” but it is unknown what this means.
Compliance Item: 1 - Repeatedly promised written contract, never supplied it.
Investigator’s Observation: Minimum elements of a contract not met.
Governing Rule: Failure in any material respect to comply with this chapter; Namely A.R.S. § 32-1158.
Compliance Item: 2 - Work not to approved plans - earthwork, poles, drainage
Investigator’s Observation: I observed the work that was performed to not meet minimum standards nor plans being followed.
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 - Did not complete mixing of soil to allow compaction
Investigator’s Observation: I observed the pad being used for the foundation to not be properly prepared or compacted.
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: 4 - Used wrong material to prepare soil - cinder sand not Basalt AB
Investigator’s Observation: Same as above
Governing Rule: Failure in any material respect to comply with this chapter; Namely A.R.S. § 32-1158.
Compliance Item: 5 - Slab forms, crooked, too thin, too shallow, not enough rebar, not to plan
Investigator’s Observation: This is an in progress item that would normally be noted that the Respondent should complete by appropriate means per plans.
Governing Rule: Failure in any material respect to comply with this chapter; Namely A.R.S. § 32-1158.
Compliance Item: 6 - Broke adjacent building sewerline.
Investigator’s Observation: This item was corrected by Respondent prior to complaint being filed.
Governing Rule:
Compliance Item: 7 - Knocked down water spigot, and light pole
Investigator’s Observation: I observed the damage as described and was
not repaired or corrected.
Governing Rule:
Compliance Item: 8 - Filled end of drainage culvert with dirt
Investigator’s Observation: I observed the item as described which if project was progress as normal, the Respondent would required to remedy or complete.
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: 9 - Drainage culvert at least 40 ft. from stampped plan location
Investigator’s Observation: I observed this item to not be completed but as it was, it was not to standards.
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: 10 - Dirt not compacted for foundations- no compacting equipment on site.
Investigator’s Observation: Though it did not appear that the fill was compacted, there has not been a compaction test done to determine.
Governing Rule:
Compliance Item: 11 - Used culverts for poles (ten) but dug holes & placed per outdated plans
Investigator’s Observation: I observed that the Respondent intended to use culvert to set the poles and the locations were not correct according to the new plans.
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: 12 - Quoted estimates from subs that he never got estimates from
Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.
Governing Rule:
Compliance Item: 13 - Used #12 above to justify his co. doing trade work-not qualified for
Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.
Governing Rule:
Compliance Item: 14 - Refused to coordinate with architect to modify footing drawings
Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.
Governing Rule:
Compliance Item: 15 - Did not have engineering background to do them himself #14
Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.
Governing Rule:
Compliance Item: 16 - Would not provide invoices from material providers as promised
Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.
Governing Rule:
Compliance Item: 17 - Did not communicate with truss co, although he said he did on mdification.
Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.
Governing Rule:
Compliance Item: 18 - Lied about refund coming from truss company
Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.
Governing Rule:
Compliance Item: 19 - Threatened safety of animals housed on site (police report filed)
Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.
Governing Rule:
Compliance Item: 20 - Belittled client for not knowing about construction - being worthless & making project a TURD.
Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.
Governing Rule:
Compliance Item: 21 - Contractor was billing us hourly for himself & family members
Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.
Governing Rule:
Compliance Item: 22 - Neighbor said he spent a portion of that time at their place drinking.
Investigator’s Observation: This is a statement and not an allegation that implicates poor work that I can inspect and report on.
Governing Rule:
(All errors contained in the original)
On August 8, 2022, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).
On or about August 22, 2022, Respondent timely filed an Answer to the Registrar.
On or about September 13, 2022, a Notice of Hearing was issued setting a hearing on October 24, 2022, at the Office of Administrative Hearings, an independent state agency.
Respondent filed a pre-hearing Motion to Dismiss, which was denied by Administrative Law Judge Sondra Vanella. Thereafter, Respondent filed a Motion for Reconsideration, which likewise was denied.
At hearing, Investigator Crosby testified as to his involvement and the above timeline.
Investigator Crosby testified that the complaint was closed initially because Complainant would not allow Respondent back on the property. However, after consultation with the Registrar’s legal department, Investigator Crosby was advised to re-open the complaint and move forward with the jobsite inspection.
Further, Investigator Crosby testified that there was no notice to Respondent that the complaint had been re-opened or that a jobsite inspection had been scheduled.
Investigator Crosby testified that Respondent was not notified to the jobsite inspection because of the previous interactions between the parties which led to a police report being filed. Further, it was not the Registrar’s intent to put the parties in a dangerous situation.
In addition, Investigator Crosby testified to the following as to his observations at the jobsite:
He testified that overall the job was not completed.
There was no valid contract for this job.
As to item 2, the earthwork, poles and drainage did not meet minimum standards nor were the plans followed.
He found that as to items 3 and 4, and 10, the foundation to not be properly prepared, mixed or compacted, and that neither party provided any compaction tests.
As to complaint items 5, 8, 9 and 11, the work could still be in progress, but at that point in the project, the work done demonstrated poor workmanship.
Item 6 was corrected by a third party, and as to item 7, Investigator Crosby could not determine who caused the knocked down water spigot or light pole, therefore there was no workmanship violation.
As to complaint items 12 through 22, these were items that he could not cite any violations.
John Glitsos testified on behalf of Complainant. He testified that Mr. Harris’s e-mail to him on May 29, 2022 claiming that, “[w]e are pretty much done with dirt work as of Wednesday of last week” was not correct and that work was nowhere completed.
Mr. Glitsos also testified that the sewer lines were repaired and replaced on June 6, 2022 by D&R.
Further, as to the plans for the project, Mr. Glitsos testified that Mr. Harris had the latest plans as of May 20, 2022, and he did not place the culverts and the drainage channel in the proper location according to the same. He testified that Mr. Harris left a mound of dirt on the project and this led to a sewage back up.
Mr. Glitsos also testified that in addition to D&R being on the jobsite after Respondent was terminated, Rawlings Earthwork too was at the jobsite working prior to the jobsite inspection.
Finally, Mr. Glitsos testified that he was left sitting with a lot of dirt after five weeks of payments, and that everything had to be redone. He requested some form of discipline to protect other non-profit organizations from Respondent.
Mr. Harris testified on behalf of Respondent. He testified that he was hired after the previous general contractor was fired because it did not have the correct licensure.
As to the plans for the project, Mr. Harris testified that he only received a copy of the same from the original contractor on the project, and only received the plans for the “Bird Holding Mews”. He also acknowledged that he received the plans for the drainage swale around the amphitheater.
Further, as to the soil issues, Mr. Harris testified that the soil was moisture conditioned with 118,000 gallons of water to prepare the same for proper compaction. He testified further that he ran out of run and could no longer stock pile the soils so he placed in on the patch as shown in in Exhibit G9.
Mr. Harris also testified that he did not have the plans demonstrating where the drainage swale should have been, but was about 3 hours short of finishing the same when Mr. Glitsos told him he had been terminated. Further, had he been able to complete the project, he would not have left a big pile of dirt.
As to the sewer tie-in, Mr. Harris testified that Respondent never laid any pipe except for under the food preparation area, and that it was D&R who exposed the pipe, however, nothing was removed from the ground or replaced.
In addition, Mr. Harris testified that Respondent did not put in the rebar.
Finally, Respondent’s counsel argued that there should be no discipline in this matter and that the Registrar’s procedures were not followed regarding this complaint.
Administrative notice is taken of Respondent’s prior License record on November 8, 2022. Such prior License record reflects that Respondent’s License No. 335018 was first issued on October 7, 2021, and reflects that there were no open complaints and had one prior disciplined case.
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).
At the outset, the tribunal appreciates the unique and untenable position Investigator Crosby found himself in. However, the tribunal is concerned that Respondent never received notice that the complaint was re-opened. As to the Registrar’s concern with party safety, the tribunal too appreciates the same. However, the Registrar owes a duty to not only the public consumers like Complainant, but also to its licensees. Perhaps Investigator Crosby could have invited Mr. Harris, or his attorney, to appear via video chat/FaceTime or the like, to at least provide some input as to the twenty-two complaint items. Perhaps, as is sometimes the case, Mr. Harris would have admitted there was poor workmanship, or he could have explained the work that was done or what was left to be done.
The preponderance of the evidence established the following:
Complaint item 1, there was no citation for violation of failing to meet the minimum elements of a contract, thus, there was no violation of the same.
Further as to items 6, 7 and 12 through 22, there was no violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
As to items 5, 8, 9, and 11, the tribunal finds that this work was still in progress and not completed thus there was no violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A), as it would be premature to so find.
As to item 2, there was conflicting evidence presented as to which plans Respondent was following. Mr. Glitsos provided no evidence that he had ensured Mr. Harris was using the correct plans. At the same time, Mr. Harris admitted that he had received the plan, for the drainage swale demonstrating its location. However, where the drainage was actually occurring was in a different location. While, Mr. Harris testified that he was not finished with the same, his position was not persuasive that it would have been corrected in only a few hours. Therefore, the tribunal finds Respondent was in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
As to the soils issues in item 3, 4, and 10, Investigator Crosby testified that neither party presented a compaction test. Complainant provided no persuasive evidence to prove that the soils were not properly prepared, mixed or compacted. Therefore, there was no violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
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. 335018 for a period of two days.
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 30 days from the date of that certification.
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Done this day, November 7, 2022.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically or by mail to:
Jeffrey Fleetham, Director
Registrar of Contractors
White Mountain Nature Center
448 E Iris Lane
Pinetop, AZ 85935
[email redacted]
William H. Breier, Esq.
Radix Law
15205 N. Kierland Blvd., Suite 200
Scottsdale, AZ 85254
[email redacted]
By Miranda Alvarez
Legal Secretary
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