ALJDEC decisions subject to certification as final

2022A-08069-CHC-ROC · Registrar of Contractors · 2023-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Seabold Construction Co Inc,

COMPLAINANT

Platinum Fire Protection LLC

License No. ROC 325245,

RESPONDENT

No. 2022A-08069-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 6, 2023

APPEARANCES: Jeff Heimark appeared via Google Meet on behalf of Complainant Seabold Construction Co Inc. Respondent Platinum Fire Protection LLC was represented by Ernest Collins, Jr. who appeared via Google Meet. Registrar of Contractors Investigator Steve Philpott appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Platinum Fire Protection LLC (Respondent) is the holder of License No. 325245 issued by the Arizona Registrar of Contractors (Registrar).

On or about November 10, 2020, the Seabold Construction Co Inc. (Complainant) agreed to have Respondent provide fire protection services including installation of a sprinkler system at The Pines of Prescott Valley (the project). The total price per the contract was to be $213,667.00.

On or about September 17, 2022, the Registrar received a Complaint containing five items against Respondent from Complainant alleging abandonment and poor work with respect to project.

The Registrar assigned the complaint to Investigator Sheldon White. The jobsite inspection was performed on October 6, 2022.

Investigator White then issued a written directive on October 6, 2021, 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 10-24-2022.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Lack of personnel to complete work, abandonment of projet without completion

Investigator’s Observation: This complaint item is verified. It is not uncommon for unforeseen conditions to occur in the construction industry. The time line on this project has exceeded what would be generally acceptably by professional industry standards. Respondent shall perform work in a timely fashion as agreed upon in the contract.

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 - sprinkler heads not dropped to meet soffit or ceiling height causing drywall damage/delay Area B1

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

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 such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

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 - Several 2-hour wall penetrations not fire caulked

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

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

Namely A.A.C. R4-9-108(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 such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.

Compliance Item: 5 - Numerous wall and ceiling cut outs needing repairs

Investigator’s Observation: This complaint item is verified.

Respondent shall correct by appropriate means.

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

(All errors contained in the original).

On October 31, 2022, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and (b); and A.R.S. § 32-1154(A)(22).

On or about November 15, 2022, Respondent timely filed an Answer to the Registrar.

On or about December 1, 2022, a Notice of Hearing was issued setting a hearing on January 6, 2023 at the Office of Administrative Hearings, an independent state agency.

At hearing Investigator Philpott testified as to the Registrar’s involvement and the above timeline, as Investigator White was no longer with the Registrar.

Investigator Philpott testified that Respondent failed to appear at the Jobsite Inspection, as Respondent informed Investigator White that it would not complete any further work until it was paid according to the agreed upon schedule. Investigator Philpott testified that Investigator White requested proof from Respondent regarding lack of payments from Complainant, or a notice in writing that Respondent had been fired. Investigator Philpott testified that he assumed Investigator White did not received the requested documentation and as Investigator White continued on with his investigation.

As to the abandonment issue, Investigator Philpott testified that he did not know how Investigator White determined there to be abandonment of the jobsite.

As to the other items specifically related to workmanship, Investigator Philpott was unaware if there were other contractors on site working on the project.

Complainant offered the testimony of Andrea Treadway and Kevin Owens.

Ms. Treadway testified that Complainant last paid Respondent on or about April 25, 2022, and that Complainant satisfied 95% of its payments to Respondent. Ms. Treadway also testified that Complainant hired another company, “Wicket” to finish Respondent’s job, and that contract was signed on October 10, 2022.

Mr. Owens testified that he never gave any direction to fire Respondent from the job. Further, Mr. Owens testified that subcontractors do not dictate timelines, the general contractor does.

Joseph D’Elia testified on behalf of Respondent. Mr. D’Elia testified that there were multiple change orders once the contract was executed, and had not been paid from April 25, 2022 through September 2022 for the work he performed. Mr. D’Elia also acknowledged the Notices to Cure. Further, on September 5, 2022, Mr. D’Elia attended a meeting with all other contractors on the job to make sure he was not holding anyone up.

Mr. D’Elia testified that on September 7, 2022, he sent an e-mail to Complainant stating that he had no intention to not complete the project. The e-mail also provided a detailed update on the work completed and the work yet to be done. He offered to not work for a few days while the other subcontractors caught up and that he would get back to work on Monday.

Mr. D’Elia testified further that the next morning he received an e-mail from Jeff Heimark, stating that Respondent had abandoned the project and that Complainant would hire other crews to finish Respondent’s work and pass the costs onto Respondent. Mr. D’Elia testified that because of this he assumed he was not welcomed back on the jobsite.

As to the workmanship issues, Mr. D’Elia stated that Complainant changed the height of the ceiling, and that he needed a week to make the corrections, but Complainant hired someone else to complete the job. As to the fire caulking issue, Mr. D’Elia testified that he gave the new contractor his fire caulk to use to make the repair. Overall, he believed that Complainant hired Cherry Builders to make the repairs and he was supposed to assist them with the same.

Administrative notice was taken of Respondent’s prior License record on January 23, 2023. Such prior License record reflected that Respondent’s License No. 325245 was first issued on July 9, 2019, and reflected that there was one open complaint, namely the present complaint, as well as two resolve/settled cases.

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 preponderance of the evidence established that Respondent did not abandon the project. It was clear from Mr. D’Elia’s e-mail communication on September 7, 2022, that there was no intent to abandon, and offered to come back a few days later to allow the other subcontractors time to catch up. While it was also understandable that this could possibly delay the project in Complainant’s eyes, Mr. D’Elia clearly detailed why he believed this would be the best to keep the project moving. Complainant was not satisfied however, and effectively fired Respondent the next day. Therefore, Complainant did not establish that Respondent abandoned the job in violation of A.R.S. § 32-1154(A)(1).

In addition, the preponderance of the evidence did not establish that Respondent’s work was not in conformity with the Registrar’s standards. The tribunal is concerned that as of September 8, 2022, Mr. Heimark in his email stated that Complainant would supplement Respondent’s work with other contractors. Thus, between that time period and the jobsite inspection on October 6, 2022, it would be impossible to know if it was Respondent’s work that was faulty or if it was a new contractor. Therefore, Complainant did not establish 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).

Finally, the preponderance of the evidence established that Complainant hired another contractor in the middle of the corrective work period, to replace Respondent and finish the project. In addition, there was no compliance jobsite inspection performed by Investigator White, thus it cannot be shown 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 dismiss the matter against Respondent.

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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001

-137160-45720000Done this day, January 23, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Ernest Collins, Esq

The Collins Law Firm, PLLC

1910 S. Stapley Dr., Ste 221

Mesa, Arizona 85204-6680

[email redacted]

Seabold Construction Co Inc.

9965 SW Arctic Dr.

Beaverton, OR 97005

[email redacted]

By: OAH Staff

-54864001

001

-137160-45720000