2023A-13269-CHC-ROC Notice of Hearing and Packet MAILED 2023-13269.pd

2023A-13269-CHC-ROC · Registrar of Contractors · 2024-02-09

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Joshua Shim , Case No. 2023-13269 COMPLAINANT, Docket No. 2023A-13269-CHC-ROC

v. NOTICE OF HEARING ON CONTESTED CASE T L Hanks Excavating Inc License No. ROC 112626,

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

HEARING INFORMATION The hearing is set for:

March 26, 2024 9:00 AM Velva Moses-Thompson 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 January 10, 2024.

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)(3) - R4-9-108(a)

Charge: 2 A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158

Charge: 3 A.R.S. § 32-1154(A)(22)

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. The Registrar’s assigned investigator will appear as a witness at the hearing.

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/forms/RC-L-800A%20- %20Prehearing%20Disclosure%20Statement%2020191007v4.pdf

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 February 8, 2024.

By: /s/ Erika Hoskin Erika Hoskin Legal Secretary Legal Department Arizona Registrar of Contractors Copy mailed via USPS First Class mail February 8, 2024 to: Respondent(s) T L Hanks Excavating Inc 26719 N 156th St Scottsdale, AZ 85262

Daniel Shevtsov, Esq. 7144 E. Stetson Drive, Suite 300 Scottsdale, AZ 85251

Complainant(s) Joshua Shim 14318 E. Desert Vista Trail Scottsdale, AZ 85262

Alicia M. Casale, Esq. 4647 N. 32nd Street Phoenix, AZ 85018 Copy sent electronically this same date to: Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar Complainant’s Attorney at email address of record with Registrar

Case No. 2023-13269 /

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

Complainant: Joshua Shim 14318 E. Desert Vista Trail Scottsdale, AZ 85262

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

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C008 05/21 Respondent: T L Hanks Excavating Inc. 28150 N Alma School Pkwy #103-180 Scottsdale, AZ 85262

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

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C008 05/21 November 27, 2023

Jobsite Inspection Notice Re: Complaint Number 2023-13269

Dear Complainant and Respondent:

A formal complaint has been filed with the Arizona Registrar of Contractors.

A jobsite inspection is scheduled for December 4, 2023 at 11:30 AM. The Complainant is required to be present. The Respondent’s attendance is requested and encouraged. The Registrar encourages both parties to make a good faith effort to resolve this complaint prior to the jobsite inspection.

COMPLAINANT: 1. Under A.R.S. § 32-1155(D)(1), the Respondent must be allowed, upon request, the opportunity to inspect the work complained of within fifteen (15) days of receiving this notice. If Respondent is not provided an opportunity to inspect the work within the fifteen (15) day time period, the Registrar may be prohibited from taking further action on this complaint. 2. The Registrar may also be precluded from taking further action on this complaint, if the work that is the subject of the complaint is subject to neglect, modification, or abnormal use. A.R.S. § 32-1155(D)(2) 3. You must provide safe access to any area to be inspected. If access to a roof or other elevated area is required, you must provide a means to safely access the area (ladder or manlift as appropriate). Additionally, please secure any animals.

RESPONDENT: 1. Enclosed is a copy of the complaint. Under A.R.S. § 32-1155(D) you must be allowed, upon request, the opportunity to inspect the work complained of within fifteen days of the date of receipt of this notice. 2. To assist the assigned investigator in evaluating the merits of the complaint, please submit a response to the enclosed complaint to the assigned investigator prior to the scheduled inspection. 3. If you do not attend the jobsite inspection, your absence may negatively impact the investigation, and your interests. 4. If a building permit(s) was required for this project, please have the building permit information available at the jobsite inspection.

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

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C008 05/21 If either party needs to reschedule the jobsite inspection, please notify the assigned investigator at least three business days prior to the inspection date to schedule a new date and time.

If the parties resolve the complaint prior to the inspection, please notify the assigned investigator in writing and by phone as soon as possible.

Sincerely, David Fagerburg David Fagerburg, Investigator #210 602 7716735 [email redacted] 1700 W Washington St, Suite 105 Phoenix, AZ 85007-2812

CC: Respondent Complainant

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

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C008 05/21 A Guide to Jobsite Inspections

Purpose of the Jobsite Inspection When the Registrar receives a complaint against a contractor’s license alleging poor workmanship, the Registrar generally schedules a Jobsite Inspection. The Jobsite Inspection serves two purposes: 1. To give the contractor an opportunity to inspect the complaint items; and 2. To give the Registrar an opportunity to determine if the contractor’s work violates Arizona law.

Jobsite Inspection Rights and Responsibilities Access to inspect: The property owner has complete control over who they allow on the property. However, if the Registrar’s investigator or the contractor cannot inspect the work, the Registrar will not move forward with a citation.

Cooperation: Arizona law enables injured parties to seek relief for damages through several paths. When dealing with a licensed contractor, the Registrar of Contractors’ administrative complaint process may serve as one of those possible paths. However, in order to use that path, the Registrar relies on the cooperation of all parties to a complaint.

Minimum workmanship: The Registrar investigates workmanship complaints for compliance with minimum workmanship and professional industry standards. The Registrar does not issue citations for work that meets these standards.

Scope: The scope of the Jobsite Inspection is limited to items listed in the complaint filed with the Registrar’s office. It is the complainant’s responsibility to point out the complaint item(s) and the Investigators role to review the item(s). If the complainant identifies additional workmanship items not listed in the original complaint, they must file an addendum to the complaint. The Registrar’s Investigator may identify additional administrative violations by the contractor (e.g. work performed out of scope of the license and failure to provide a contract that meets requirements set by Arizona law) at the time of the inspection.

The Role of the Investigator At the Jobsite Inspection, the Registrar’s investigator will: ● Only investigate the items listed on the complaint form filed with the Registrar. ● Will gather evidence to make an informed decision about the complaint items.

What to expect after a Jobsite Inspection After doing a Jobsite Inspection, the Registrar’s Investigator will leave the jobsite and review the evidence provided during the inspection. Generally, the investigator does not make any determination at the time of the jobsite inspection regarding whether the allegations listed in the complaint are supported. ● If the allegations are confirmed, the Registrar’s Investigator may issue a Written Directive telling the contractor to correct the poor or incomplete work. ● If the allegations are not confirmed, the Registrar’s Investigator will close the complaint.

Questions? If you have already filed a complaint and it was assigned to an investigator, you are encouraged to contact that investigator directly with the information listed in your jobsite inspection letter. If you have not filed a complaint yet or have not been assigned an investigator, you can reach the Registrar’s compliance department at (877) 692-9762.

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

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C008 05/21 A Guide to Written Directives Purpose of the Jobsite Inspection When the Registrar receives a complaint against a contractor’s license, the Registrar generally schedules a Jobsite Inspection. The Jobsite Inspection serves two purposes: 1. To give the contractor an opportunity to inspect the complaint items; and 2. To give the Registrar an opportunity to determine if the contractor’s work violates Arizona law.

What to expect after a Jobsite Inspection After doing a Jobsite Inspection, the Registrar’s Investigator will determine whether the allegations listed in the complaint are supported. ● If the allegations are confirmed, the Registrar’s Investigator may issue a Written Directive telling the contractor to correct the poor or incomplete work. ● If the allegations are not confirmed, the Registrar’s Investigator will close the complaint.

Written Directives Access: In order to use the administrative process offered by the Registrar, a property owner must provide reasonable access to allow the contractor to fix their work as directed by the Registrar in a Written Directive. Complainants may not put any additional, unnecessary restrictions on the Respondent above and beyond the initial contract requirements agreed upon at the beginning of the project. Respondents are required to make repairs on items identified on any Written Directive, not otherwise restricted by local code or HOA limitations. Complainants must make access available to the Respondent to make the required repairs and failure to provide reasonable access may result in the Registrar dismissing the complaint.

Contractor obligations: The Written Directive will set a deadline for compliance. This is the period of time determined by the Investigator as necessary to complete the items listed in the Directive. ● The deadline for compliance assumes the contractor will promptly begin working on the items listed in the Directive. ● Do not wait. Both parties should communicate quickly to schedule the work.

Extensions: If good cause exists to extend this deadline, either party may submit a written request to the Investigator. The Registrar will review requests for extension and determine if the Directive should be extended.

Manner and method of performance: The Registrar does not provide specific instructions for how to correct poor work. A licensed contractor is expected to have the skill and professionalism to complete the work. Moreover, the complainant may not dictate the manner of repair. If the contractor fails to appropriately correct the work according to the contract, the Registrar will issue a citation.

Compliance Inspection: After the Written Directive expires, the Registrar’s Investigator will contact the complainant to determine if the contractor performed any corrective work. ● If the contractor did corrective work, the Investigator may schedule a Compliance Inspection to determine if the poor work is corrected. ● If the contractor did not perform any corrective work, the Registrar’s Investigator will not do a Compliance Inspection and will determine whether to issue a citation based on the administrative record.

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

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C008 05/21 Work performed after the directive ends: After the Directive period ends, a property owner may choose to allow the contractor to continue its work. The Registrar encourages parties to work cooperatively, but cannot require a homeowner to continue to allow a contractor access to the property after the Directive period ends in order for the administrative process to continue. Denying access after the Directive ends is not grounds to close or dismiss a complaint.

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

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C008 05/21 ecember 4, 2023 D 2023-13269 JSI Photos 14318 E Desert Vista Trail Scottsdale, AZ 85262

P 1 P 2 P 3 P 4 P 5 P 6 P 7 P 8 P 9 P 10 P 11 P 12 P 13 P 14 P 15 P 16 P 17 P 18 P 19 P 20 P 21 P 22 P 23 P 24 P 25 Katie Hobbs, Governor Martín Quezada, Director

Jobsite Inspection Notes

Case No.: 2023-13269 Investigator: David Fagerburg #210 Inspection Date: December 4, 2023 Inspection Time: 11:30 AM

Complainant: Misty Shim Respondent: TL Hanks Excavation Representing Joshua Shim Inc. Terry Hanks Owner & QP Not Present: Not Present:

Jobsite General Notes: Both parties were present at this jobsite investigation JSI photos taken with my Pixel 6 Pro Cell Phone JSI audio recorded with my Olympus Digital Voice Recorder model DM-620. Photos #1 and #2 are of the complainant’s residence and address.

Investigator Notes: 1: Along with the complaint form an additional statement was submitted by the complainant acknowledging that there is no written contract, the project was based on a verbal agreement and during this jobsite investigation the respondent acknowledged there is no written contract violating ARS §32-1158 (A) Minimum elements of a contract. 2: After this jobsite investigation the complainant provided copies of texts between the 2 parties with evidence of the estimated project costs. In the text thread the complainant asks how much you think this is going to cost us. The respondent replied, 10-15 grand. The complainant responded, “oh my! Ok! The respondent replied, “just kidding I don’t know, $1,500 - $2,500.00 per day give or take”. The complainant replied “my dad said you told him around $1,500.00 a day”. 3: At this jobsite investigation the respondent stated that the project was on a time and material basis. However, there is no documentation to substantiate this statement. 4: After this jobsite investigation the complainant provided documentation showing an attempt was made as a good faith gesture to provide a deposit for the project of $1,500.00 via UPS certified mail for the work performed. The mail delivery was refused by the respondent and returned to the complainant.

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 RCC100 11/18

Compliant Item 1: Agreed upon cost has changed now with no change order or written agreement; Investigator’s Observation: Not Verified. At this jobsite investigation I informed both parties that the ROC does not get involved in financial or contract disputes. Governing Rule: No Action

Compliant Item 2: Contractor hit our newly constructed block wall during grading; Multiple areas on the entire wall hit by heavy machinery during grading; Multiple areas on the wall that have black tire marks all over newly constructed wall; Investigator’s Observation: Verified. At this jobsite investigation I observed a CMU block wall surrounding the entire backyard of the home with black tire marks, dirt marks that appear to be from large tires and evidence of damage including a large horizontal crack on the west side of a newly constructed wall. See P (3) thru (25). During this jobsite investigation the respondent stated that the complainant had excavating equipment on the jobsite but this equipment is small, See P (4) and the damage to the CMU block wall indicates a larger piece of equipment likely caused the damage. The respondent shall correct the damage to the CMU block wall throughout by appropriate means. Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Compliant Item 3: Contractor is trying to bully us and threatening legal action ; Investigator’s Observation: Not Verified. This is a statement made by the complainant that does not imply poor workmanship. Governing Rule: No Action

Compliant Item 4: After he hit our wall and damaged approx. 40 linear feet, he is trying to make up for that by doubling our price ; Investigator’s Observation: Not Verified. At this jobsite investigation I informed both parties that without a written contract or total cost for the project this is considered a financial dispute. The ROC does not get involved in financial disputes. Governing Rule: No Action

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 RCC100 11/18

Complainant: Joshua Shim 14318 E. Desert Vista Trail Scottsdale, AZ 85262

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

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C009 04/21 Respondent: T L Hanks Excavating Inc. 28150 N Alma School Pkwy #103-180 Scottsdale, AZ 85262

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

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C009 04/21 December 11, 2023

License No. ROC 112626

Re:Complaint No. 2023-13269

WRITTEN DIRECTIVE FROM THE REGISTRAR

Dear Respondent:

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 Friday January 5, 2024.

RESTRICTIONS • You may not perform or hire other contractors to perform work that is outside the scope of your license. • If your license is currently suspended for administrative reasons 1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

Investigator Notes: 1: Along with the complaint form an additional statement was submitted by the complainant acknowledging that there is no written contract, the project was based on a verbal agreement and during this jobsite investigation the respondent acknowledged there is no written contract violating ARS §32-1158 (A) Minimum elements of a contract. 2: After this jobsite investigation the complainant provided copies of texts between the 2 parties with evidence of the estimated project costs. In the text thread the complainant asks how much you think this is going to cost us. The respondent replied, 10-15 grand. The complainant responded, oh my! Ok! The respondent replied, just kidding I don’t know, $1,500 - $2,500.00 per day give or take. The complainant replied, my dad said you told him around $1,500.00 a day. 3: At this jobsite investigation the respondent stated that the project was on a time and material basis. However, there is no documentation to substantiate this statement. This means the license is suspended for lack of qualifying party, lack of bond, nonrenewal, Recovery Fund payout, or for any reason listed in A.R.S. § 32-1124(F). 1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C009 04/21 Investigator Notes Continued: 4: After this jobsite investigation the complainant provided documentation showing an attempt was made as a good faith gesture to provide a deposit for the project of $1,500.00 via UPS certified mail for the work performed. The mail delivery was refused by the respondent and returned to the complainant.

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

ITEMS NOT REQUIRING CORRECTION The following complaint items require no action by the Respondent:

Compliant Item 4: After he hit our wall and damaged approx. 40 linear feet, he is trying to make up for that by doubling our price ; Investigator’s Observation: Not Verified. The ROC does not get involved in financial disputes. Governing Rule: No Action

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

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C009 04/21 Please direct all questions regarding this Directive to the undersigned Investigator.

Sincerely,

David Fagerburg David Fagerburg, Investigator #210 602 7716735 [email redacted] 1700 W Washington St, Suite 105 Phoenix, AZ 85007-2812

CC: Respondent Complainant

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

602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C009 04/21 REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Joshua Shim, Case No. 2023-13269 COMPLAINANT, v. T L Hanks Excavating Inc CITATION License No. ROC 112626, RESPONDENT.

The Registrar issues this Citation to T L Hanks Excavating Inc (“Respondent”) under A.R.S. § 32-1155(A). If Respondent fails to answer this Citation by January 25, 2024, 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). THE WRITTEN COMPLAINT On November 18, 2023, Joshua Shim (“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)(3) - R4-9-108(a) 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.

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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 Charge 2: A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158 Failure in any material respect to comply with this chapter; Namely A.R.S. § 32-1158. Charge 2: A.R.S. § 32-1154(A)(22) Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the Registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. 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. 2023-13269. How to File a Written Answer: Respondent’s written answer may be submitted in the following ways:

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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 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 January 25, 2024.

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).

INVESTIGATOR’S APPEARANCE AS A WITNESS

The Registrar’s assigned investigator will appear as a witness at the hearing. If either

party demands the attendance at the hearing of any other person, that party must obtain and

serve a subpoena in compliance with the rules and processes established by the Office of

Administrative Hearings. RESPONDENT’S RIGHT TO REQUEST 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 AN INFORMAL SETTLEMENT CONFERENCE Under A.R.S. § 41-1092.06, if Respondent submits a request to the Registrar for an 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

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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 Registrar. Dated January 10, 2024. By: /s/ Madelyn Hayes Madelyn Hayes Legal Assistant II Legal Department Arizona Registrar of Contractors COPY of the foregoing mailed by Certified Mail, Return Receipt Requested, January 10, 2024 to: [number redacted]

Respondent Certified Mail No: [number redacted]

T L Hanks Excavating Inc 28150 N Alma School Pkwy #103-180 Scottsdale, AZ 85262 Copy mailed by USPS First Class mail this same date to:

T L Hanks Excavating Inc 28150 N Alma School Pkwy #103-180 Scottsdale, AZ 85262

Complainant Joshua Shim 14318 E. Desert Vista Trail Scottsdale, AZ 85262

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. 2023-13269 / MTH

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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 Metro Builders LLC To 2375 E Camelback Rd. #600 Misty / Josh Shim Phoenix AZ 14318 Desert Vista Trl United States 85016 Scottsdale AZ (602) 786-8250 US 85262 ROC# 324956 408-205-7240 [email redacted]

# PRO - 21394 Block wall repair 14318 Desert Vista Trl Scottsdale

Date: 11/08/2023 Open Till: 12/08/2023 Project:

# Item Qty Rate Amount

BLOCK WALL / RETAINING WALL 1 EA 5,925.00 5,925.00 Block wall repair due to damage.

Removal of approximately 6 rows x 40ft of 8"x 8" x 16" Grey fence block with retaining wall specifications. This includes demo, haul off, installation, new re-bar, concrete and block.

Professional install of approximately 6 rows x 40LFT of 8"x 8" x 16" Grey fence block with retaining wall specifications per supplied plans.

1/3 # Item Qty Rate Amount (All Haul off and dump fees included in quote).

Sub Total $5,925.00

Total $5,925.00

SCOPE OF WORK:

Scope of work to be done includes labor, installation, and material. Any additional work or changes will need to be agreed to by both parties as a change order before any work can begin. Note: Only what has been outlined and agreed upon will be included in the work to be done.

EXCLUSIONS:

Permitting Impact Fees by Owner Testing & Survey Work. Sewer Systems, City performed sewer tap, Metro Builders will connect to city provided sewer tap. Gas Service Electrical Service Traffic control, barricades, permits. Cable / Telephone. Civil Work Water service, water meter, main water connection, pipe and install, including street demo tap and street repair.

Items Not Included:

Permits and/or Inspection Fees Sales Tax Security Fencing Engineering / Architectural / Blueprinting

FIELD MEASURE:

This quote is subject to final field measurements for described project. This will be adjusted prior or during the installation. (If necessary)

EXCAVATION DISCLOSURE:

Excavating and Underground construction involves risk of damage to existing underground infrastructure in addition to the possibility of **encountering unexpected subsoil conditions** including, but not limited to, rock, clay, aquifers, archeological items, existing or abandoned construction elements and sinkholes. Reasonable effort has been made to locate or predict said risk but no warranty is expressed or implied as to what will be discovered or encountered during construction. Proposal is an estimate only and is based on similar projects where adverse conditions were not encountered. Any such adverse conditions which arise during construction will require additional work which will be billed at time and materials above and in addition to the amount shown on this proposal. By accepting this proposal, customer agrees to these potential additional

2/3 charges which may include work by others when necessary in the opinion of the contractor.

Terms & Conditions Metro Builders LLC Proposal Agreement All work shall be performed in accordance with local and national ordinance and building code. Only the scope of work listed in this service proposal / contract shall be performed. Any additions to the scope will be by written consent / change order and agreed by both the Service Contractor and the Client prior to any additional work being performed. The Client is responsible for providing the Service Technician with access to the working area as well as a working electrical outlet within 150′ of the working area. The Client agrees to make full payment for the amount $5,925.00 listed in this service proposal upon the project’s completion by the service technician.

The Service Technician shall perform all repair service work and / or construction work in a professional and quality manner under Contractors License#333406. However, the company offers no warranty for any existing Equipment, Parts or Fixtures or other prior existing materials installed during the project, other than the workmanship performed. Any new Equipment, Parts or Fixture will carry the manufactures warranty, and we warranty our workmanship parts and labor for 2 years unless otherwise noted. If a defect in workmanship is discovered, the Contractor will remedy such defect at their sole expense. All precautions will be taken; however, the Service Technician or Metro Builders shall not be held liable for loss or damage beyond their reasonable control and shall not be liable for damages beyond the total price paid by the Customer for the service work listed in this proposal / contract’s scope of work. ROC Disclosure: Property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. Arizona Registrar of Contractors contact info: (602) 542-1525 website: www.roc.az.gov. Any complaints shall be made within the applicable time period set forth in section 32-1155, subsection A The Client agrees to remove or otherwise protect any personal belongings inside and near the working area. The Client acknowledges that work delays are possible should any required materials, parts or fixtures not be immediately available. The Client hereby agrees to express mechanics lien against the Client’s property for the amount listed in the proposal for this service contract. All payments are do at time of service, however should the Client fail to pay the full amount due within 7 days of project completion Metro Builders reserves the rights under the mechanics lien law.

I/we have read and understand the terms and conditions of this service / repair agreement PRO - 21394 in the amount of $5,925.00 , and with our digital signature except the terms and conditions in this proposal.

3/3 12/7/23, 10 22 AM Screen Shot 2023 12 05 at 11 15 00 PM png

https //mail google com/mail/u/0/#inbox/WhctKKZPFSNwtrHZvPcDRVGNRvPrhbQnrMWbwjVWJGTdXjHVQXJdvszQpFCmpgtmswjmQgg?projector 1/1 12/7/23, 10 24 AM Screen Shot 2023 12 05 at 11 12 11 PM png

https //mail google com/mail/u/0/#inbox/WhctKKZPFSNwtrHZvPcDRVGNRvPrhbQnrMWbwjVWJGTdXjHVQXJdvszQpFCmpgtmswjmQgg?projector 1/1 Received 1/24/2024 ROC Legal

ADAM TRENK (AZ #028375) DANIEL SHEVTSOV (AZ #036854) ROSE LAW GROUP, PC 7144 E. Stetson Drive, Suite 300 Scottsdale, Arizona 85251 Ph: (480) 398-3100 Fax: (480) 505-3925 E-mail: [email redacted] [email redacted] [email redacted] Attorneys for Respondent T L Hanks Excavating Inc License No. ROC 112626 REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA Joshua Shim, Case No.: 2023-13269 COMPLAINANT, v. WRITTEN ANSWER TO CITATION AND COMPLAINT T L Hanks Excavating Inc. License No. ROC 112626, RESPONDENT. Under A.R.S. § 32-1155, and in response to the Registrar’s citation and the complaint of Joshua Shim issued on January 10, 2024, Respondent T L Hanks Excavating Inc., License No. ROC 112626 (“TL Hanks” or “Respondent”), by and through undersigned counsel, responds and answers as follows:

BACKGROUND 1. TL Hanks was hired by Complainant’s wife, Misty Shim (“Misty”), to perform excavation work at 14318 E. Desert Vista Trail, Scottsdale, AZ 85262. TL Hanks met with Misty and her father several times before the work started. TL Hanks never met with Complainant. 2. TL Hanks was not supplied with accurate grading/drainage drawings or any soil reports. Without these, TL Hanks could not offer a firm bid, as the subsurface conditions and

Received 1/24/2024 ROC Legal

potential issues were unknown. Consequently, TL Hanks and Misty agreed that the work would be billed on a time-and-materials basis, estimated at $1,500-$2,500 per day. 3. During the project, unforeseen complications arose due to Misty’s failure to adequately clear the site. Buried debris, including broken blocks and concrete from prior demolition, required additional time and resources, complicating the excavation. Additionally, Misty ceased providing water for the project after the first day, requesting instead that TL Hanks supply water, which increased the project’s costs. 4. TL Hanks worked a total of eleven (11) days from September 12, 2023, through October 7, 2023, and issued an invoice for $22,502.50. Attached as Exhibit A is a true and correct copy of TL Hanks’ invoice. 5. After project completion, Misty reported wall damage. TL Hanks investigated but could not confirm if its workers or other contractors operating heavy machinery caused the damage. Regardless, TL Hanks agreed to cover the repair costs, to be deducted from its invoice. 6. Misty provided a repair quote of $5,925 from her father’s company, Metro Builders. Although TL Hanks obtained a lower estimate of $4,500, it agreed to cover Misty’s higher quoted amount. Attached hereto as Exhibit B is a true and correct copy of the repair bid from Metro Builders. 7. On November 16, 2023, TL Hanks’s owner, Terry Hanks (“Terry”), met with Misty to settle the financial dispute. Terry proposed reducing the invoice to $19,000.00 (approximately

$3,000 reduction) and deducting the $5,900 repair cost. The parties reached a verbal agreement to

settle the outstanding amount at $13,000. However, Misty later reneged on the agreement without

explanation.

8. On November 20, 2023, as a good-faith gesture, Terry reduced the final settlement

offer to $12,500, requesting a response by November 22, 2023. 9. Misty’s delayed response came on November 25, 2023, when she made a significantly lower offer of $7,575, which TL Hanks deemed unacceptable as it was nearly a third of the total invoice and approximately half of what was previously agreed to.

Received 1/24/2024 ROC Legal

10. Subsequently, TL Hanks was served with the citation and complaint. The company remains committed to a fair and reasonable settlement, reflective of the work performed and the unforeseen complications encountered. RESPONSE TO ALLEGATIONS IN COMPLAINT 11. As a preliminary matter, Respondent emphasizes that its dealings were solely with Misty. Respondent had no communication with the Claimant and is perplexed as to why the Claimant is making representations, under oath, about discussions and encounters in which he was not involved. 12. Regarding the allegations of wall damage, though unable to confirm its cause, Respondent agreed to deduct $5,900 in repair costs from its invoice. The core issue is the Claimant and his wife's refusal to pay for the extensive excavation work performed. 13. Respondent denies Claimant’s allegation that “Contractor is trying to bully us and threatened legal action.” Respondent never bullied anyone and made significant concessions to resolve this dispute in good faith. Respondent only raised the possibility of legal action after Misty reneged on her agreement to settle for $13,000 during the meeting on November 16, 2023. 14. Respondent denies Claimant’s allegation that “after he hit out wall and damaged approx. 40 linear feet, he is trying to make up for that by doubling our price.” The invoice accurately reflects the extensive work performed, including delays and added costs due to (1) the failure to provide proper drawings and/or soil reports, (2) inadequate site preparation, (3) debris

cleanup required from previous contractors, and (4) Misty’s last-minute request to supply water.

RESPONSE TO CHARGES IN CITATION

15. Respondent contests the charges in the citation. Respondent respectfully requests

an administrative hearing in this case.

16. In response to Charge No. 1, Respondent maintains that it performed the work in a professional and workmanlike manner, especially given the numerous unforeseen challenges, as outlined in paragraph 14 above. Misty indicated that she was satisfied with the quality of Respondent’s work. Furthermore, there were no reported issues or any complaints by subsequent

Received 1/24/2024 ROC Legal

contractors regarding the work performed by Respondent. 17. In response to Charge No. 2, the Respondent promptly addressed the wall damage and offered to deduct the repair costs from its invoice. The issue remains the Claimant and his wife’s refusal to pay for the excavation work, despite significant concessions and a previously reached settlement. 18. In the absence of a written contract, a contractor is entitled to the fair value of the services rendered. Wang Elec., Inc. v. Smoke Tree Resort, LLC, 230 Ariz. 314, 318, 283 P.3d 45, 49 (Ct. App. 2012) (“unjust enrichment provides a remedy when a party has received a benefit at another’s expense and, in good conscience, the benefitted party should compensate the other… The remedy is flexible and available when equity demands compensation for benefits received, ‘even though [the party] has committed no tort and is not contractually obligated to the [other].’”) 19. Respondent’s services cost $22,502.50 and Claimant is entitled to a reduction of $5,900 for repair costs. Therefore, Respondent is entitled to recover $16,602.50. REQUEST FOR INFORMAL SETTLEMENT CONFERENCE 20. Pursuant to A.R.S. § 41-1092.06, Respondent requests an informal settlement conference. 21. Respondent raised the possibility of mediation with Claimant, and while Claimant showed general openness to mediation, he did not provide a definitive answer yet. RESPECTFULLY SUBMITTED this 24th day of January, 2024. ROSE LAW GROUP pc By: /s/ Daniel Shevtsov Adam Trenk Daniel Shevtsov Attorneys for Respondent

Received 1/24/2024 ROC Legal

ORIGINAL of the foregoing filed this 24th day of January, 2024: Arizona Registrar of Contractors 1700 W. Washington Street Suite 105 Phoenix, AZ 85007-2812 [email redacted] COPY of the foregoing mailed by USPS First Class mail this same date to: Complainant Joshua Shim 14318 E. Desert Vista Trail Scottsdale, AZ 85262 Copy sent electronically this same date to:

Joshua Shim [email redacted] [email redacted] /s/ Summer A. Haws

Received 1/24/2024 ROC Legal Received 1/24/2024 ROC Legal

Invoice No : 3006 Date : 10/14/2023 Customer ID : Shim [email redacted]

Job: Joshua & Misty Shim Shim Residence 14318 E. Desert Vista Trail Same Scottsdale, Arizona 85262

Salesperson Job Payment Terms Due Date

Terry Pad for guest casita Due Upon Receipt

Quantity Description Unit Price Line Total

Pad for guest casita, backfill pool and yard area

Hours Sk85 Kobelco Excavator $175.00 $2,975.00 Hours Sk85 Kobelco Excavator with compactor $155.00 $620.00 Hours Mini Takeuchi Excavator $95.00 $570.00 Hours 544 John Deere Loader $120.00 $6,240.00 Hours Grade Tractor $95.00 $2,660.00 1.5 Hours Jumping Jack $75.00 $112.50 Hours Move In & Out $90.00 $630.00 Hours Water Truck 4000 gal $110.00 $7,150.00 Loads Water $515.00 $1,545.00

$22,502.50 Subtotal Sales Tax @ 0.00% $ -

TOTAL $ 22,502.50

Make all checks payable to T.L. Hanks Excavating, Inc. 26719 N. 156th Street, Scottsdale, AZ 85262

THANK YOU FOR YOUR BUSINESS! Received 1/24/2024 ROC Legal Received 1/24/2024 ROC Legal

Metro Builders LLC To 2375 E Camelback Rd. #600 Misty / Josh Shim Phoenix AZ 14318 Desert Vista Trl United States 85016 Scottsdale AZ (602) 786-8250 US 85262 ROC# 324956 408-205-7240 [email redacted]

# PRO - 21394 Block wall repair 14318 Desert Vista Trl Scottsdale

Date: 11/08/2023 Open Till: 12/08/2023 Project:

# Item Qty Rate Amount

BLOCK WALL / RETAINING WALL 1 EA 5,925.00 5,925.00 Block wall repair due to damage.

Removal of approximately 6 rows x 40ft of 8"x 8" x 16" Grey fence block with retaining wall specifications.

Profesional install of approximately 6 rows x 40LFT of 8"x 8" x 16" Grey fence block with retaining wall specifications per supplied plans.

1/3 Received 1/24/2024 ROC Legal # Item Qty Rate Amount All Haul off and Dump fees included in quote.

Sub Total $5,925.00

Total $5,925.00

SCOPE OF WORK:

EXCLUSIONS:

Items Not Included:

Permits and/or Inspection Fees Sales Tax Security Fencing Engineering / Architectural / Blueprinting

FIELD MEASURE:

This quote is subject to final field measurements for described project. This will be adjusted prior or during the installation. (If necessary)

EXCAVATION DISCLOSURE:

2/3 Received 1/24/2024 charges which may include work by others when necessary in the opinion of the contractor. ROC Legal

3/3 Received 1/25/24, 8:00 AM State of Arizona Mail - Shim v. T L Hanks Excavating- 2023-13269 1/24/2024 ROC Legal

Answers - AZROC <[email redacted]>

Shim v. T L Hanks Excavating- 2023-13269 message

Summer Haws <[email redacted]> Wed, Jan 24, 2024 at 11:21 AM To: "[email redacted]" <[email redacted]> Cc: Daniel Shevtsov <[email redacted]>, Adam Trenk <[email redacted]>, Angelica Van Balen <[email redacted]>

Good morning,

Please see attached Notice of Appearance and Respondents Answer to Citation and Complaint. A hard copy will follow via USPS mail.

Thank you,

File Manager / Paralegal

Rose Law Group pc

7144 E Stetson Drive, Suite 300, Scottsdale, AZ 85251

Direct: 480.944.4199 F: 480.505.3925

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The author of this email is not an attorney. This communication does not constitute legal advice and should not be construed as such. The information contained in this message is privileged and confidential. It is intended only to be read by the individual or entity named above or their designee. If the reader of this message is not the intended recipient, you are on notice that any distribution of this message, in any form is strictly prohibited. If you have received this message in error, please immediately notify the sender by telephone at 480.505.3936 or fax 480.505.3925 and delete or destroy any copy of this message. Thank you.

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attachments 2024.01.24 Answer to ROC Complaint.pdf 896K 2024.01.24 NOA.pdf 127K

https://mail.google.com/mail/b/AEoRXRRmSyjfTY3sW_sfIfD3dErFfb5nd6bkY9I4INC4rCG-PX9S/u/0/?ik=581c53cf5c&view=pt&search=all&permthid=t… 2/2 Mediation Notice

Mediation Services Mediation services are available to the parties. What is Mediation? Mediation is a method of resolving disputes where the parties can end conflict without the expense and time associated with the full administrative process. Who Participates in During mediation, a mediator will attempt to help the Mediation? parties find an optimal solution to the conflict. Both parties must agree to participate in mediation, and both parties must bring a representative to mediation that has full authority to settle the entire matter. Mediation Is Not Neither the Registrar nor the Office of Administrative Mandatory Hearings will penalize a party for not agreeing to mediation. Where do the Parties The parties will meet at the Office of Administrative Meet for Mediation? Hearings to participate in mediation.

The Office of Administrative Hearings is located at 1400 West Washington, Suite 101, Phoenix, Arizona 85007. When does Mediation can occur after the Registrar issues a citation, but Mediation Occur? before the administrative hearing. Why Should Parties Mediation can be an alternative to the full administrative Consider Mediation? process. Mediation is beneficial because it is (1) time- efficient, (2) cost-effective, (3) confidential, and (4) capable of providing flexible solutions to complex problems. How to Request If the parties wish to mediate this case, they must file a Joint Mediation Request for Mediation with the Office of Administrative Hearings. A Joint Request for Mediation is included with this Mediation Notice. REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA _________________________ Case No. _______________ COMPLAINANT,

v. JOINT REQUEST FOR MEDIATION _________________________ RESPONDENT.

REQUEST

The parties jointly request that this matter be referred to mediation in the Office of Administrative Hearings (OAH). ☐ This matter is set for hearing on __________________(date). ☐ This matter is not currently set for hearing. MEDIATION AGREEMENT By requesting this mediation and signing below, the parties understand, represent, and agree: 1. The parties are prepared to commence mediation and will be ready for mediation on _____________________(date); 2. The parties will participate in the mediation process in good faith; 3. This request for mediation is not intended to hinder or delay administrative proceedings; 4. No party will contend that the mediation limits the power of OAH and its administrative law judges to conduct an administrative hearing and issue decisions under A.R.S. §§ 41-1092 – 1092.12; 5. The parties will be courteous and respectful throughout the mediation process to all participants; 6. The mediation is completely voluntary and the principal purpose is to allow the parties a full and fair opportunity to discuss settlement; of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 7. The mediator may conduct joint and separate meetings with the parties and may suggest resolutions to the parties’ dispute, but the mediator has no authority to impose a settlement upon the parties; 8. The mediation process is confidential. Communications made, material created for or used during, and acts occurring during mediation are confidential and may not be discovered or admitted into evidence in any proceeding except as provided by A.R.S. § 12-2238; 9. The mediator is not subject to service of process or a subpoena to produce evidence or to testify regarding any evidence or occurrence relating to the mediation except as provided in A.R.S. § 12-2238(C); 10. Neither the mediator, nor the Registrar of Contractors, nor the Office of Administrative Hearings is subject to civil liability for any act or omission in connection with any mediation service or activity except for acts involving

intentional misconduct or reckless disregard of a substantial risk of injury to the rights of others; 11. Throughout the mediation process, each party must have a representative present who will have full settlement authority to settle all claims at issue in the administrative

proceeding. 12. The mediation process will terminate when: a. The parties reach settlement; b. The mediator determines that further efforts at mediation are no longer likely

to achieve a settlement; or c. One of the parties withdraws from mediation. _____________________________________ _______________________ Complainant (or representative) Date

_____________________________________ _______________________ Respondent (or representative) Date

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 PREHEARING DISCLOSURE STATEMENT INSTRUCTIONS ***DO NOT SUBMIT THESE INSTRUCTIONS WITH THE PREHEARING DISCLOSURE FORM***

ADMINISTRATIVE RULES A copy of the Arizona Administrative Code’s Rules for the Registrar of Contractors can be located on the Registrar’s Website.

PREHEARING DISCLOSURE REQUIREMENT Under A.A.C. R4-9-118(A), before a hearing, the parties must prepare a disclosure statement. The disclosure statement must contain: • A list of all the witnesses the party will call to testify, including the witnesses’ contact information and a brief description of the subject matter of the witnesses’ expected testimony; and • A list of all the exhibits that the party will use at the hearing.

FILE PREHEARING DISCLOSURE STATEMENTS • The Prehearing Disclosure Statements and Exhibits may be submitted to the Arizona Office of Administrative Hearings using any of the following: • Electronically: https://portal.azoah.com/submission/ • In-Person or by Mail: 1740 West Adams Street, Lower Level, Phoenix, Arizona 85007

EXCHANGING DISCLOSURE STATEMENTS AND EXHIBITS Under A.A.C. R4-9-118(B) (effective November 5, 2017), a party to the hearing must serve on every other party and file with the Office of Administrative Hearings a copy of: • The disclosure statement; and, • Any exhibit that the party will use at the hearing. Service: The disclosure statement and exhibits must be served on all parties in accordance with Arizona Administrative Code R2-19-108 Filing Documents. Under A.A.C. R2-19-108, service is completed by: • Personal delivery; • 1st class, certified or express mail; or • Facsimile. Timing: The disclosure statement and the exhibits must be served and filed not less than seven calendar days before the date of the hearing. Under A.A.C. R2-19-108, a document is served on a party: • On the date it is personally served; • Five days after it is mailed by express or 1st class mail; • On the date of the return receipt if it is mailed by certified mail; or • On the date indicated on the facsimile transmission.

CONSEQUENCES FOR FAILING TO DISCLOSE Under A.A.C. R4-9-108(C), if a witness or an exhibit is not timely disclosed as required the rules, and good cause for the failure to disclose is not shown, then the administrative law judge may: • Order that certain witnesses or exhibits not be used at the hearing; • Order that a particular fact is or is not established for the record; or, • Order that a charge, a defense, a claim, or some portion thereof, be dismissed.

Form RC-L-800A Prehearing Disclosure Statement Rev. 10/08/2019 Instructions Form PREHEARING DISCLOSURE STATEMENT FORM RC-L-800A

PART 1: WITNESS LIST DOCKET NO. Under A.A.C. R4-9-118(A), before a hearing, a party must prepare a disclosure statement containing a list of all the witnesses the party will call to testify, including the witnesses’ contact information and a brief description of the subject matter of the witnesses’ expected testimony. If you need additional space to list all witnesses, complete and attach additional Witness Lists. Example 1. Name 2. Telephone Number 3. Email Address

John Doe (123) 456-7890 [email redacted] 4. Subject Matter of Expected Testimony

John Doe will testify regarding the poor workmanship and poor installation of the Garage Door. Mr. Doe will also testify regarding the invoices and change orders for the project.

Witness 1. Name 2. Telephone Number 3. Email Address

4. Subject Matter of Expected Testimony

Witness 1. Name 2. Telephone Number 3. Email Address

4. Subject Matter of Expected Testimony

Witness 1. Name 2. Telephone Number 3. Email Address

4. Subject Matter of Expected Testimony

Witness 1. Name 2. Telephone Number 3. Email Address

4. Subject Matter of Expected Testimony

Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 1 of 3 PART 2: EXHIBIT LIST DOCKET NO. Under A.A.C. R4-9-118(A), before a hearing, a party must prepare a disclosure statement containing a list of all the exhibits that the party will use at the hearing. Note: All exhibits listed below must be provided to all parties to the hearing. See A.A.C. R4-9-118(B). If you need additional space to list all witnesses, complete and attach additional Exhibit Lists. Example Contract for new garage door. Invoice #10001 – Cost for garage door replacement.

Exhibit Exhibit Name

Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 2 of 3 PART 3: ACKNOWLEDGEMENT & SIGNATURE I certify that the above information is true and correct and that I will serve a copy of this disclosure statement and any exhibits listed in Part 2 to all parties to the hearing in accordance with A.A.C. R4-9-118. I acknowledge and understand that if I fail to properly disclose a witness or exhibit, the administrative law judge may: • Order that certain witnesses or exhibits not be used at the hearing; • Order that a particular fact is or is not established for the record; or, • Order that a charge, a defense, a claim, or some portion thereof, be dismissed.

I am the (check one):  Complainant  Respondent Docket No.

Print Name Signature Date

Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 3 of 3