2023A-10012-NPC-ROC Notice of Hearing and Packet MAILED

2023A-10012-NPC-ROC · Registrar of Contractors · 2023-10-23

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA John Joseph Kowalski, Case No. 2023-10012 COMPLAINANT, Docket No. 2023A-10012-NPC-ROC v. NOTICE OF HEARING ON CONTESTED CASE Innovative Outdoor Concepts LLC License No. ROC 298588,

RESPONDENT.

This Notice of Hearing is issued under A.R.S. § 41-1092.05(D).

HEARING INFORMATION The hearing is set for:

December 6, 2023 9:00 AM Kay Abramsohn Google Meet. A link will be provided directly from The Office of Administrative Hearings. Go to www.azoah.com to request to appear in-person.

If you have requested to appear in-person at the hearing, the hearing will

be held at 1740 W Adams Street, Phoenix, AZ 85007.

You must attend this hearing. This is an adversarial hearing before an administrative law judge, and is conducted in a similar manner as judicial proceedings. Thus, you must be prepared to present evidence, including witness testimony and documents, in support of your case.

STATEMENT OF LEGAL AUTHORITY AND JURISDICTION The State of Arizona has determined that the licensing and regulation of construction contractors is a proper state function, and has vested authority in the Registrar of Contractors

to administer Title 32, Chapter 10 of the Arizona Revised Statutes. A.R.S. §§ 32-1101 et seq.

All hearings for alleged violations of Title 32, Chapter 10 are conducted under Title 41,

Chapter 6, Article 10. A.R.S. § 32-1156.

The statutes and rules governing the hearing can be found at: Arizona Revised Statutes §§ 41-1092 to -1092.12, and Arizona Administrative Code R2-19-101 to -122. PARTICULAR ARIZONA STATUTES AND RULES INVOLVED The statutes and rules the Respondent is alleged to have violated are cited in the complaint and citation, which were served on the Respondent on September 27, 2023.

SHORT AND PLAIN STATEMENT OF THE MATTERS ASSERTED The complaint and citation allege that the Respondent committed the following act(s):

Charge: 1 A.R.S. § 32-1154(A)(10)

THE PARTIES TO THE ADMINISTRATIVE HEARING Because Respondent is a licensee and is charged with an act(s) or omission(s) that is

cause for the suspension or revocation of a license, Respondent is a party to this case and will

be a party to the hearing.

Because Complainant alleged Respondent committed an act(s) or omission(s) that is cause for the suspension or revocation of a license, Complainant is a party to this case and will be a party to the hearing. Respondent and Complainant, as the parties to the hearing, will present evidence and argument to the administrative law judge.

RIGHT TO BE REPRESENTED The parties to the administrative hearing may choose to be represented by an attorney. A.R.S. § 41-1092.07(B). If one of the parties is a company, the company may be represented by an officer or employee if that person satisfies the conditions set forth in A.R.S. § 32-

1156(B).

CHANGE OF ADDRESS Each party must inform the Registrar and the Office of Administrative Hearings of

any change of address within five (5) days of the change. A.R.S. § 41-1092.04.

HEARING PROCEDURES AND RULES The administrative hearing will be conducted in accordance with A.R.S. §§ 41-1092

to -1092.12, and A.A.C. R2-19-101 to -122. The parties should review the statutes, rules, and

processes governing the administrative hearing. Copies of the statutes, rules, and articles regarding the administrative hearing process can be found at https://www.azoah.com/.

REGISTRAR’S APPEARANCE BY VIDEO CONFERENCE OR TELEPHONE The Registrar’s investigators, employees, and attorneys will appear at the hearing via video conference or telephone unless requested by a party to appear in-person. Requests for the Registrar’s investigators, employees, or attorneys to appear in-person must be filed with the Registrar and the Office of Administrative Hearings no later than seven (7) calendar days prior to the hearing date.

HEARING PACKET In the interests of administrative efficiency, the Registrar compiles and discloses

certain documents to the parties and the Office of Administrative Hearings. These documents

are attached to this Notice of Hearing as the “Hearing Packet.” If any party wishes to submit

additional evidence, they must do so during the hearing after completing a disclosure statement. See “Disclosure Statement” section below. SUBPOENAS FOR TESTIMONY FROM A WITNESS OR DOCUMENTS The parties to the hearing must be prepared to present evidence in support of their

case. If a party wants to obtain testimony from a witness or documents not in the party’s

possession, the party must prepare and file a written subpoena for the Administrative Law

Judge to review and sign, if approved. A.R.S. § 41-1092.07(C). Forms for requesting a

subpoena can be found on the Office of Administrative Hearings’ website at www.azoah.com. The party seeking a subpoena must serve notice on all the parties to the hearing, and on the Registrar. A.R.S. § 41-1092.04.

DISCLOSURE STATEMENT At least seven calendar days before the hearing, each party must prepare and serve a

disclosure statement on all other parties, and file it with the Office of Administrative Hearings.

A.A.C. R4-9-118; A.A.C. R2-19-108. The disclosure statement must include any exhibit the

party will use at the hearing. A party’s failure to timely disclose any witness or exhibit, without good cause, may result in the administrative law judge excluding those witnesses or exhibits from being used at the hearing. A.A.C. R4-9-118(C). A sample disclosure form is available on the Registrar’s website at https://roc.az.gov/content/prehearing-disclosure- statement.

CHANGING THE HEARING DATE

The date of the hearing may only be advanced or delayed on the agreement of the parties or on a showing of good cause. A.R.S. § 41-1092.05(C). The date of the hearing may be changed by filing a written agreement of the parties to change the date of the hearing. The written agreement must be filed with the Office of Administrative Hearings, directed to the assigned Administrative Law Judge, and transmitted to the Registrar and all other parties. The assigned Administrative Law Judge may be found on the Office of Administrative Hearings’ web portal at www.azoah.com If a party would like to move the date of the hearing without agreement of all parties, the party must file a written motion with the Office of Administrative Hearings, directed to the

assigned Administrative Law Judge, and transmit a copy to the Registrar and all other parties.

The motion must state in detail good cause for why the date of the hearing should be advanced

or delayed, and the position of all other parties regarding the advancement or delay.

A party may also file a motion asserting a right to an expedited hearing upon a showing of extraordinary circumstances or the possibility of irreparable harm. A.R.S. § 41-1092.05(E).

RESOLUTION SHORT OF ADJUDICATION

In any case which is resolved or settled by the parties, or which is withdrawn by the

Complainant without objection from Respondent after the Notice of Hearing is issued, the parties must notify the Office of Administrative Hearings of the resolution or settlement. Any such cases will be listed on the Registrar’s website and its records under the category: “Closed Complaints – Resolved/Settled/Withdrawn.” Dated October 23, 2023.

By: /s/ Erika Hoskin Erika Hoskin Legal Secretary Legal Department Arizona Registrar of Contractors Copy mailed via USPS First Class mail October 23, 2023 to:

Respondent(s) Innovative Outdoor Concepts LLC 636 E Holmes Ave Mesa, AZ 85204 Complainant(s) John Joseph Kowalski PO BOX 3782 LAKE HAVASU CITY, AZ 86405

Copy sent electronically this same date to:

Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Case No. 2023-10012 /

Katie Hobbs, Governor Martin Quezada, Director

Hearing Packet FAQ What is the Hearing Packet?

The Hearing Packet is a packet of certain documents collected or issued by the Registrar over the course of its investigation.

Who gets the Hearing Packet?

The Hearing Packet is assembled and distributed to all parties and to the Office of Administrative Hearings (“OAH”) prior to an administrative hearing.

What types of cases does the Registrar prepare a Hearing Packet for?

The Registrar prepares a Hearing Packet for Complainant-Handled Cases and No-Pay Cases. Note: If the Docket Number on the Notice of Hearing contains a “CHC” or “NPC”, your case is a Complainant-Handled Case or a No-Pay Case.

What is in the Hearing Packet?

The Hearing Packet contains essential case-specific documents and at a minimum will include the following documents:

● Original complaint;

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Hearing Packet FAQ

Katie Hobbs, Governor Martin Quezada, Director

● Citation; and ● Answer.

The Hearing Packet will also contain the following documents (if applicable):

● Jobsite inspection notices, notes, and photos; ● Written directives; and ● Compliance inspection notices, notes, and photos.

What if there are documents missing from the Hearing Packet?

If there is any evidence you submitted to the Registrar that are not included in the Hearing Packet it is your responsibility to introduce that evidence at the administrative hearing. Note: The administrative law judge assigned to your case does not have access to the entire Registrar record.

If there is additional evidence you submitted to the Registrar during the investigation that you also want to introduce as evidence during your hearing, it is your responsibility to:

● Properly disclose that evidence to the other party; and ● Introduce the evidence during your hearing.

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Hearing Packet FAQ

Katie Hobbs, Governor Martin Quezada, Director

How do I disclose evidence I intend to use at a Hearing?

You must properly disclose any and all documents and witnesses you intend to use at your hearing according to the Registrar’s Prehearing Disclosure Rules. See Arizona Administrative Code Section R4-9-118.

A sample prehearing disclosure form and instructions are provided to the parties by the Registrar.

How do I obtain documents I previously submitted to the Registrar?

If you previously submitted documents to the Registrar and need a copy of these documents, please contact the Registrar’s Legal Department or submit a public records request at https://roc.force.com/AZRoc/s/roc-public-request.

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Within AZ 877.692.9762 · Fax 602.542.1599 · roc.az.gov Hearing Packet FAQ

August 31, 2023

Via U.S. Mail and Email Complainant John Joseph Kowalski PO BOX 3782 LAKE HAVASU CITY, AZ 86405

Via U.S. Mail and Email

Respondent Innovative Outdoor Concepts LLC 636 E Holmes Ave Mesa, AZ 85204

Re: Complaint No. 2023-10012

Dear Complainant and Respondent:

The Registrar received a complaint filed against Innovative Outdoor Concepts LLC for non-payment of materials or services rendered. This complaint is complete and will be substantively reviewed by the Registrar.

Respondent is free to raise any issue or affirmative defense to this complaint by filing a response with the Registrar by September 7, 2023. Please reference the complaint number listed above if you file a response. Respondent may file a response by:

Mail: P.O. Box 18244, Phoenix, Arizona, 85005-8244 In-Person: 1700 W. Washington St., Ste. 105, Phoenix, Arizona, 85007-2812 Email: [email redacted]

The Registrar will not issue a citation before September 7, 2023 and will review Respondent’s response, if one is submitted.

Please be advised that a response to the complaint is not the same as a written answer. If the Registrar issues a citation Respondent must file a written answer to that citation in accordance with A.R.S. § 32-1155.

Sincerely,

/s/ Dylan Warwick Dylan Warwick 1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg100 4/21 Legal Department 1700 W Washington St. Ste 105 Phoenix, AZ 85007

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg100 4/21 PROJECT NAME August 28,2023 Dutch Bros. 1621 McCulloch Blvd. Lake Havasu City AZ 86403

REASON FOR NO CONTRACT A written contract was not provided. A verbal contract for hourly work for equipment and operator. Verbal agreement of $125 per hour was agreed upon on July 7, 2023 prior to work started.

DESCRIPTION OF WORK TO BE PERFOMRED Excavating for tree holes, irrigation lines, plants, spread gravel, clean-up slopes and planters, and backfill trenches and tree holes.

VERBAL CONTRACT NEDGOTIATED BY Joe Vosskuhler and John Kowalski

PAYMENT SCHEDULE Payment due upon completion

WHO WAS TO RECEIVE PAYMENT Van’s Bobcat Kowalski Backhoe

DATE WORK WAS TO BE COMPLETED As scheduled per Joe Vosskuhler – see timeline below

TIMELINE • I was contacted by Joe Vosskuhler by text on June 15, 2023 asking about my services I provide and availability to do work for a job he had coming up in Lake Havasu City.

• We met on July 7, 2023 and agreed on the hourly price of $125. We discussed the job and I got started on the job that day.

• I completed 3.5 hours of work on July 7, 2023 and was paid $437.50 for hours worked that day. Invoice #9074, Joe Vosskuhler paid with check #0016.

• On July 12, 2023 Joe contacted me asking me if I think the job will be ready for him to come back into town on Monday, July 17, 2023. I responded I do not know you will have to contact Scott the Superintendent.

• The week of July 24, 2023 I worked on the Dutch Bros. project with his crew. Hours worked for my services are listed on Invoice #9078 in the amount of $1187.50.

• On July 27, 2023 through text, I asked Joe for his billing address as he was not in town. • I sent a copy of the invoice through text on August 2, 2023 and mailed a hard copy to the address he had given me.

• On August 3, 2023 I texted Joe and asked if he received my text about the invoice. Joe responded I got it I ’ll get you tak en care of as soon as I can. Thank s for all of your w ork .

• On August 8, 2023 I texted Joe asking if I could get a check this week. Joe responded I hope so.

• On August 13, 2023 I texted Joe asking for payment status on the Dutch Bros. project. Joe responded I ’m still w aiting m yself to hear som ething tom orrow .

• On August 16, 2023 I texted Joe, Good Morning Joe, just checking to see if you have mailed that check yet, I really need to get paid for that job. Thank you. Joe responded; I should have som ething I can give you Friday. I w ill pay you as soon as I can. Tex ting m e everyday doesn’t m ake the m oney appear. I w ill get you paid 100% don’t w orry. I responded back Sorry it hasn’t been everyday but it has been 2 weeks since we did the work. Thank you for responding.

• On August 22, 2023 I texted Joe Hi Joe, checking on payment status. Joe responded on August 23,2023 w ith pictures stating I needed to do w ork for you that he had to fix the grading. He then added a statem ent and a reduction of m y bill. Reducing m y bill $350.00. He w as stating I did not do the grading job properly before the gravel w as spread.

• The contractor and superintendent for the Dutch Bros. project had already paid me in full for the grading on site prior to landscaping. I met the owner and superintendent on site to receive my payment of work which they were completely satisfied with and thanked me for all of the work I did and helping them with their project. They called me back for more work.

• On August 23, 2023 I contacted the Arizona Registrar of Contractors on advice of how to go about receiving payment for a job that was completed.

• On August 23, 2023 after I contacted the AROC I informed Joe that if I was not paid in full by August 28, 2023 that I intended to file a Non-Payment Compliant Form with the AROC.

• After I sent that text to Joe on August 23, 2023, I received several texts from Joe stating I ’m a thief, I stole gravel, and that if this goes to the AROC Court he w ill be ask ing m e for the gravel I stole. No gravel was every stolen all gravel is on site.

In summary I fulfilled my hourly obligation in performing the work I was asked to do. It appears that Joe had to come back to Lake Havasu City to complete his work so he could get paid by the developer and is now trying to blame me for his quality of work performed on the Dutch Bros. Project.

I was never contacted by Baldwin Development or the superintendent running the job regarding any pre-grading issue of the job prior to Joe’s quality of landscaping work.

Payment for my work completed didn’t seem to be an issue with Joe until about the third week of me requesting payment and he appeared to be bothered by me asking when I was going to receive my payment. He then started coming up with excuses and threats of deducting more money. My agreement with Joe was for hourly work ($125 hr.) for my equipment and as a owner operator.

I can provide copy of text messages if needed.

Thank you for your time in reviewing this complaint.

John K ow alsk i Van’s Bobcat K ow alsk i Back hoe REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Case No. 2023-10012 John Joseph Kowalski,

COMPLAINANT, v. CITATION Innovative Outdoor Concepts LLC License No. ROC 298588,

RESPONDENT.

The Registrar issues this Citation to Innovative Outdoor Concepts LLC (“Respondent”) under A.R.S. § 32-1155(A). If Respondent fails to answer this Citation by October 12, 2023, then under A.R.S. § 32-1155(C), Respondent’s failure to answer may be deemed an admission of the act or acts charged in the underlying complaint, and the Registrar may then suspend or revoke Respondent’s license(s).

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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 THE WRITTEN COMPLAINT On August 29, 2023, John Joseph Kowalski (“Complainant”) filed a written complaint with the Registrar. A copy of that Complaint is attached to this Citation. A FORMAL STATEMENT OF THE CHARGES AGAINST RESPONDENT The Registrar investigated this matter and finds cause to charge Respondent with violation(s) of Title 32, Chapter 10 of the Arizona Revised Statutes. Respondent is charged with violating: Charge :1 A.R.S. § 32-1154(A)(10) — Failure by a licensee or agent or official of a licensee to pay monies in excess of $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

If the matter proceeds to a hearing and the administrative law judge determines that any

of the charges listed above are supported by a preponderance of the evidence, then

Respondent’s license(s) may be subject to suspension or revocation, and Respondent may be

subject to other penalties provided by law, including civil penalties under A.R.S. §§ 32-1154(E)

and (F).

FILING A WRITTEN ANSWER

Respondent must appear by filing with the Registrar a written answer to the citation and

complaint showing cause, if any, why Respondent’s license(s) should not be suspended or

revoked. A.R.S. § 32-1155(A). Respondent’s written answer should contain the heading

“Written Answer to Citation and Complaint” and should include the case number, which is

Case No. 2023-10012. of 5

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 How to File a Written Answer: Respondent’s written answer may be submitted in the following ways: In-Person: 1700 W. Washington St., Ste. 105, Phoenix, Arizona, 85007-2812 Mail: P.O. Box 18244, Phoenix, Arizona, 85005-8244 Email: [email redacted] The Registrar’s normal office hours are 8:00 a.m. to 5:00 p.m., Monday through Friday. If Respondent submits a written answer by mail, it is not filed with the Registrar until the Registrar actually receives it. Deadline for Filing a Written Answer: Respondent must file a written answer with the Registrar no later than October 12, 2023. This deadline is calculated under A.R.S. §§ 32-1155(A) and (B), which provides a deadline ten days after service of the Citation. Service of the Citation and Complaint is complete five days after the Registrar mails a copy of the Citation and Complaint to Respondent’s latest address of record in the Registrar’s office. Consequences for Failing to File a Written Answer: If Respondent fails to answer, Respondent’s failure may be deemed an admission of the act or acts charged in the written complaint. A.R.S. § 32-1155(C). The Registrar may then suspend or revoke Respondent’s license(s). THE ADMINISTRATIVE HEARING If Respondent files a timely written answer contesting any charges in the Complaint, then the Registrar will request the Office of Administrative Hearings set a date for an administrative hearing and will notify all the parties at least 30 days before that hearing. A.R.S. § 41-1092.05(D). RESPONDENT’S RIGHT TO REQUEST AN INFORMAL SETTLEMENT CONFERENCE Under A.R.S. § 41-1092.06, if Respondent submits a request to the Registrar for an of 5

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 informal settlement conference, the Registrar must hold a conference within 15 days after receiving the request. Respondent’s request for an informal settlement conference must be in writing and must be filed no later than 20 days before the administrative hearing. A.R.S. § 41- 1092.06(A). The Registrar will not close or settle any case without both parties’ appearance at the Settlement Conference. The parties participating in the settlement conference must have the authority to settle the case and must waive their right to object to the participation of the Registrar’s settlement conference representative in the final administrative decision. A.R.S. § 41-1092.06(B). Any statements, either written or oral, made by the parties at the conference, including a written document, created or expressed solely for the purpose of settlement negotiations, are inadmissible in the administrative hearing. A.R.S. § 41-1092.06(B). RESPONDENT’S PRIOR RECORD Under A.A.C. R4-9-117, in determining the appropriate discipline, the administrative law judge and the Registrar may consider not only facts in the current case, but also facts in prior cases and any documents regarding Respondent on file with the Registrar. Respondent’s prior disciplinary record and current license(s) status may be considered as a mitigating or aggravating factor in determining the appropriate discipline. EVIDENTIARY DISCLAIMER By issuing this Citation, the Registrar is directing Respondent to file a written answer to the Citation and Complaint, showing cause, if any, why Respondent’s license(s) should not be suspended or revoked. A.R.S. § 32-1155(A). This Citation does not constitute proof that any charge or allegation in Complainant’s written complaint is in fact true. This Citation does not constitute proof that Respondent violated any statutory provision or rule adopted by the Registrar. of 5

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 Dated September 27, 2023. By: /s/ Robert Stirling Robert Stirling Assistant General Counsel Legal Department Arizona Registrar of Contractors COPY of the foregoing mailed by Certified Mail, Return Receipt Requested, September 27, 2023 to: Respondent Certified Mail No: [number redacted] Innovative Outdoor Concepts LLC 636 E Holmes Ave Mesa, AZ 85204

Copy mailed by USPS First Class mail this same date to: Innovative Outdoor Concepts LLC 636 E Holmes Ave Mesa, AZ 85204 Complainant John Joseph Kowalski PO BOX 3782 LAKE HAVASU CITY, AZ 86405 Copy sent electronically this same date to:

Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar

Case No. 2023-10012 /

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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 PROJECT NAME August 28,2023 Dutch Bros. 1621 McCulloch Blvd. Lake Havasu City AZ 86403