ALJDEC - Licensing
2023A-13342-CHC-ROC · Registrar of Contractors · 2024-07-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Melissa Tohlakai,
COMPLAINANT,
v.
Copper State Materials LLC,
DBA: Copper State Site Services,
License No. ROC 339659, 349778,
RESPONDENT.
No. 2023A-13342-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Convened and concluded on June 24, 2024.
APPEARANCES:
For Complainant: Melissa Tohlakai.
For Respondent: Stephen Fuller.
For the Registrar of Contractors: Investigator Chris Allison.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet and the Supplemental Notice of Hearing Packet submitted by the Registrar of Contractors. Complainant introduced Exhibits 1 through 9 and witnesses Ian Bruan and Arvin Moreno.
_____________________________________________________________________
FINDINGS OF FACT
Copper State Materials LLC (Respondent) is the holder of License Numbers 339659 and 349778 issued by the Arizona Registrar of Contractors (Registrar).
On or about June 29, 2023, Melissa Tohlakai (Complainant) entered into a contract with Respondent for, among other things, construction of a waste sanitation system.
On or about November 20, 2023, Complainant filed a Licensed Complaint Form with the Registrar, claiming Respondent did not complete the project, did not install the correct system, and did not follow the engineering plans.
The Registrar assigned the complaint to Investigator Chris Allison, who issued a Jobsite Inspection Notice on November 30, 2023, scheduling the inspection for December 15, 2023. The inspection was rescheduled twice. On December 7, 2023, it was rescheduled for December 18, 2023, but Respondent informed Investigator Allison he would be unavailable until December 21, 2023. On December 13, 2023, it was rescheduled for December 27, 2023.
Investigator Allison conducted the jobsite inspection on December 27, 2023, and all parties were present. On January 9, 2024, Investigator Allison issued a Written Directive From the Registrar to Respondent that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Contracted completion date set by Contractor was September 15, 2023 for installation of a concrete slab and septic system. We are now over two months past this date and neither is complete.; A different septic system was installed to that designed and specified by the engineer, neither I nor the engineer were made aware of this until it failed the County inspection. Leach fields were put in 20 inches apart instead of 5 feet apart as per the plans.
Investigator’s Observation: At the time of the inspection, all items were completed with the exception of the septic system.
Respondent shall complete the installs and obtain final approval from the building department.
The Written Directive required Respondent to notify Investigator Allison of Respondent’s compliance with the directive prior to 5:00 p.m. on January 24, 2024.
On February 2, 2024, Investigator Allison scheduled a Compliance Jobsite Inspection for February 12, 2024. Respondent was not present for the Jobsite inspection, when Investigator Allison found that Respondent extended the leach lines but did not provide an approved final inspection, backfill, nor fully comply with the Directive.
On February 27, 2024, the Registrar issued a Citation against Respondent’s License No. 339659, charging possible violations of A.R.S. § 32-1154(A)(3) - R4-9-108(a) and A.R.S. § 32-1154(A)(22). That Citation was quashed for only having one license number. The Registrar issued a second Citation on February 28, 2024, charging the same possible violations against both License Numbers 339659 and 349778.
Respondent submitted an Answer to the Citation on February 27, 2024. Respondent’s Answer blamed the engineer’s drawings and stated Respondent could not get final approval without a permanent power supply.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On May 20, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing at 9:00 a.m. on June 24, 2024.
The hearing was held via Google Meet on June 24, 2024.
Investigator Allison testified that the work was not completed, it was not done professionally, and it was not completed in the proposed timeline. Respondent did not tell Investigator Allison that he was unable to complete the project because there was no power supply. Respondent did not provide Investigator Allison with any information about whether he had ordered an inspection or had made any progress toward that directive issue.
Complainant testified that a representative of the Engineer conducted a site inspection on March 6, 2024, and he determined that the chlorinator (which was indicated missing on the county inspection) was installed, but the pump, two way clean-out, and control panel were not installed. Complainant further testified that Respondent was difficult to communicate with and was often unresponsive.
The waste sanitation system failed its first inspection because it did not follow the original engineering plans, resulting in a delay to the project.
Engineering Plans provide that “any deviations from these plans including any and all product brand substitutions must be approved by the design engineer and the Coconino county community development/environmental quality program.” Respondent deviated from the plans without seeking approval from Complainant or informing the design engineer or the Coconino County. Respondent installed a different tank and incorrectly dug the trenches closer together than was indicated in the plans.
Respondent left a pile of the excavation rubble on the property, which would be used (at least in part) to cover the waste sanitation system; however, it is where Complainant wanted to install a solar system to power the property.
Respondent testified that the project was done to scale according to Page S-4 of Exhibit 2, which indicates approximately two feet between the chambers. He stated that it would be an easy mistake to make and was not a big deal, comparing this mistake to spacing studs incorrectly. Respondent stated that the County’s initial inspection was to receive clearance to cover the waste sanitation system with the excavation rubble. Afterwards, Respondent would have installed the missing components. Respondent said the project cannot be completed without power.
Respondent testified that there was no reason he could not install the missing parts before the power is hooked up. Respondent did not complete the installs because it was not time to do so in his plan; he chose to wait until it was time to backfill.
Respondent testified that the Directive item requiring him to “obtain final approval” isn’t possible without power.
Administrative notice was taken of Respondent’s prior License record on July 10, 2024. According to that record, Respondent’s License No. 339659, first issued on July 25, 2022; it was voluntarily cancelled on January 23, 2024. It had one open case, and no disciplined or resolved cases. According to that record, Respondent’s License No. 349778 was first issued on January 23, 2024; it had no open, disciplined, or resolved cases.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
The evidence established that Respondent did not perform the work in accordance with professional industry standards in violation of A.R.S. § 32-1154(A)(3) - R4-9-108(A).
The evidence established that Respondent did not complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 339659 for 2 days and suspend Respondent’s License No. 349778 for 2 days.
It is further recommended that the Registrar require Respondent to pay the sum of $200.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).
No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.
Done this day, July 12, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Tom Cole
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Melissa Tohlakai
12688 Mesa View Road
Williams, AZ 86046
[email redacted]
Copper State Materials LLC
DBA: Copper State Site Services
871 Quarter Horse Rd
Williams, AZ 86046
[email redacted]
Chris Allison
[email redacted]
By: OAH Staff