2024A-03445-CHC-ROC Notice of Hearing & Packet MAILED 2024-03445.pdf

2024A-03445-CHC-ROC · Registrar of Contractors · 2024-06-25

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Rosemary Crowley , Case No. 2024-03445

COMPLAINANT, Docket No. 2024A-03445-CHC-ROC

v. NOTICE OF HEARING ON CONTESTED CASE Sharp Manufacturing and Contracting LLC License No. ROC 294252,

RESPONDENT.

This Notice of Hearing is issued under A.R.S. § 41-1092.05(D). HEARING INFORMATION The hearing is set for:

August 2, 2024 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 May 31, 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)(2)(b) Charge: 2 A.R.S. § 32-1154(A)(3) - R4-9-108(a)

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 June 25, 2024.

By: /s/ Erika Hoskin Erika Hoskin Legal Secretary Legal Department Arizona Registrar of Contractors

Copy mailed via USPS First Class mail June 25, 2024 to:

Respondent(s) Sharp Manufacturing and Contracting LLC 128 W Boxelder Pl Ste. 105 Chandler, AZ 85225

Complainant(s) Rosemary Crowley 6768 W. Morrow Drive Glendale, AZ 85308

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. 2024-03445 /

Douglas A. Ducey, Governor Jeffrey L. Fleetham, 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

Douglas A. Ducey, Governor Jeffrey L. Fleetham, 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

Douglas A. Ducey, Governor Jeffrey L. Fleetham, 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: Rosemary Crowley 6768 W. Morrow Drive Glendale, AZ 85308

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C008 12/23 Respondent: Sharp Manufacturing and Contracting LLC DBA: 128 W Boxelder Pl Ste 105 Chandler, AZ 85225

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C008 12/23 March 28, 2024

Re: Complaint No. 2024-03445

Dear Complainant and Respondent:

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

A jobsite inspection is scheduled for Friday, April 19, 2024 at 09:30 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. 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.

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C008 12/23 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,

Mike Wiskow Mike Wiskow, Investigator 602 7716750 [email redacted] 1700 W Washington StSte 105 Phoenix, AZ 85007

Cc: File

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C008 12/23 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 1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C008 12/23 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 12/23 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 1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C008 12/23 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.

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 12/23 1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C008 12/23 Complainant: Rosemary Crowley 6768 W. Morrow Drive Glendale, AZ 85308

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C009 12/23 Respondent: Sharp Manufacturing and Contracting LLC DBA: 128 W Boxelder Pl Ste 105 Chandler, AZ 85225

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C009 12/23 April 22, 2024

License No. ROC 294252

Re:Complaint No. 2024-03445

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 Tuesday, May 14th, 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 reasons1, 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.

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 12/23 DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Grade to my yard was change by at least 3" or more creating an unsafe and hazardous area along walkway Investigator’s Observation: See Complaint item #2. Repair of complaint item #2 may require the rest of the sidewalk to be adjusted. The sidewalk should follow the original grade and not be unsightly. This includes any slopes or steps in the sidewalk. Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 2 - Ruined front door entrance by eliminating step which causes water to flow to entrance when it rains Investigator’s Observation: The concrete at the front door entrance does not slope away from the structure properly. The concrete should slope away from the home 1/4" per foot. Contractor should repair by appropriate means. Repair of this complaint item may require the rest of the sidewalk to be repaired as no unnecessary slopes or steps should be in the sidewalk. Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C009 12/23 ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 3 - Busted front yard lighting system that I had for 22 years. Told me too bad. That happens. Investigator’s Observation: No repairs are required as the contract indicates unmarked electrical or irrigation may be damaged. Governing Rule:

Compliance Item: 4 - Busted front yard drip system that I had for 22 years.. Told me too bad. That happens. Investigator’s Observation: No repairs are required as the contract indicates unmarked electrical or irrigation may be damaged. Governing Rule:

Compliance Item: 5 - They had me sign "complete satisfaction" paperwork and pay them balance before they even started the work on 9/6/22. Investigator’s Observation: Not a workmanship issue. Governing Rule:

Compliance Item: 6 - It was 6:30am when they arrived on 9/6/22. I didn't want to sign anything or pay balance until work was completed. Investigator’s Observation: Not a workmanship issue. Governing Rule:

Compliance Item: 7 - CoCo (supervisor) said I had to sign per contract. Office didn't open until 9am, so no one to talk to. Investigator’s Observation: Not a workmanship issue. Governing Rule:

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C009 12/23 Please direct all questions regarding this Directive to the undersigned Investigator.

Sincerely,

Mike Wiskow Mike Wiskow, Investigator 602 7716750 [email redacted] 1700 W Washington StSte 105 Phoenix, AZ 85007

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 12/23 Complainant: Rosemary Crowley 6768 W. Morrow Drive Glendale, AZ 85308

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C013 12/23 Respondent: Sharp Manufacturing and Contracting LLC 128 W Boxelder Pl Ste 105 Chandler, AZ 85225

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C013 12/23 Case No.: 2024-03445 Investigator: Mike Wiskow Call to Respondent

Compliance Jobsite General Notes: Audio recorded with ROC Genesys Internet Phone System

Respondent stated “I don’t know what to do with it” when asked if directive was completed on May 14, 2024. Called complainant and got no answer. Based on the call to the respondent on May 14th, 2024 and the correspondence between the respondent and several individuals with the ROC concerning his request for an appeal of the directive, all evidence suggests that the directive was not completed.

Compliance Findings

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C013 12/23 Contractor should repair by appropriate means. Repair of this complaint item may require the rest of the sidewalk to be repaired as no unnecessary slopes or steps should be in the sidewalk.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner. *Not Completed

Note:

Please review the complaint items listed above. If any of the items have not been corrected at the time of the compliance inspection this complaint will be forwarded to the Registrar’s legal department and a citation may be issued.

If all items are corrected after receipt of this letter, please notify the Registrar’s legal department by sending a notice of compliance signed by the complainant to fax number (602) 364-0416 or by mail to: Arizona Registrar of Contractors, P.O. Box 18244, Phoenix, Arizona 85005-8244. Sincerely,

Mike Wiskow, Investigator 602 7716750 [email redacted] 1700 W Washington StSte 105 Phoenix, AZ 85007

CC: Respondent Complainant

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov C013 12/23 REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Rosemary Crowley Case No. 2024-03445 COMPLAINANT, v. Sharp Manufacturing and Contracting LLC CITATION License No. ROC 294252,

RESPONDENT.

The Registrar issues this Citation to Sharp Manufacturing and Contracting LLC

(“Respondent”) under A.R.S. § 32-1155(A). If Respondent fails to answer this Citation by June

15, 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).

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1700 W. Washington Street, Suite 105 ꞏ Phoenix AZ 85007-2812 602.542.1525 ꞏ Toll Free 877.692.9762 ꞏ roc.az.gov Lg101 8/21 THE WRITTEN COMPLAINT On March 23, 2024, Rosemary Crowley (“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)(2)(b) Departure from or disregard of: (b)A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

Charge 2: 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.

Charge 3: 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.

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1700 W. Washington Street, Suite 105 ꞏ Phoenix AZ 85007-2812 602.542.1525 ꞏ Toll Free 877.692.9762 ꞏ roc.az.gov Lg101 8/21 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. 2024-03445. 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 June 15, 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,

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1700 W. Washington Street, Suite 105 ꞏ Phoenix AZ 85007-2812 602.542.1525 ꞏ Toll Free 877.692.9762 ꞏ roc.az.gov Lg101 8/21 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 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

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1700 W. Washington Street, Suite 105 ꞏ Phoenix AZ 85007-2812 602.542.1525 ꞏ Toll Free 877.692.9762 ꞏ roc.az.gov Lg101 8/21 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. Dated May 31, 2024. By: /s/ Dylan Warwick Dylan Warwick Legal Department Arizona Registrar of Contractors

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1700 W. Washington Street, Suite 105 ꞏ Phoenix AZ 85007-2812 602.542.1525 ꞏ Toll Free 877.692.9762 ꞏ roc.az.gov Lg101 8/21 COPY of the foregoing mailed by Certified Mail, Return Receipt Requested, May 31, 2024 to:

Respondent Certified Mail No: [number redacted]

Sharp Manufacturing and Contracting LLC 128 W Boxelder Pl Ste 105 Chandler, AZ 85225

Copy mailed by USPS First Class mail this same date to:

Sharp Manufacturing and Contracting LLC 128 W Boxelder Pl Ste 105 Chandler, AZ 85225

Complainant Rosemary Crowley 6768 W. Morrow Drive Glendale, AZ 85308 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. 2024-03445 / <<CreatedBy_DW>

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1700 W. Washington Street, Suite 105 ꞏ Phoenix AZ 85007-2812 602.542.1525 ꞏ Toll Free 877.692.9762 ꞏ roc.az.gov Lg101 8/21 Received 6/14/2024 ROC Legal

REGISTRAR OF CONTRACTORS

THE STATE OF ARIZONA

Rosemary Crowley Case No. 2024-03445

COMPLAINANT, WRITTEN ANSWER TO v. CITATION AND COMPLAINT

Sharp Manufacturing and Contracting LLC AND RESPONDENT MOTION TO RECLASSIFY

ANSWER TO CITATION On 22 April 2024, Inspector Mike Wiskow of the Arizona Registrar of Contractors issued a Written Directive regarding complaint items 1 and 2 from Complaint No. 2024-03445. On 9 May 2024, pursuant to our rights under A.R.S. § 41-1092.03(B), we respectfully requested that pursuant to A.R.S. § 41- 1092.03(C), the Registrar of Contractors notify the Office of Administrative Hearings of the appeal and request for a hearing. In violation of A.R.S. § 41-1092.03(C), that request for a hearing was not forwarded to the Office of Administrative Hearings and was denied by the Registrar of Contractors. No statute in the A.R.S. allows the Registrar to circumvent our right to appeal an appealable agency's action to the Office of Administrative Hearings. A.R.S. § 41-1092.03(C) states that "The agency SHALL notify the office of the appeal or request for a hearing and the office SHALL schedule an appeal" (emphasis added). In this case, the "agency" is the Registrar, and the "office" is the Office of Administrative Hearings. Neither the "agency" nor the "office" has the authority to deny a hearing when requested. Our goal was not to disagree or argue with the Registrar but to get some clarity about the Directive. We did not know how to comply with the Directive as it was written. Shortly after receiving the Directive, we called to speak with Inspector Wiskow to get some clarity on complaint items #1 and #2. He did not provide that clarity, which left us not knowing how to comply with the Directive. Hence, the appeal of the Registrar's action and request for a hearing. Received 6/14/2024 ROC Legal

This leads us to a contention we have had with the Registrar for many years. If we disagree with the

Written Directive action by the Registrar, an appealable agency, we are told that if we want a hearing, we

simply need not comply with the Directive. This advice has always seemed wrong. The Registrar's

process and guidance is for us to break the law, namely A.R.S. § 32-1154(A)(22), to get a hearing. Once

in violation, we receive a citation, then we answer the Citation, and then we have a compliance hearing

with the Office of Administrative Hearings. To stay true to the purpose of that compliance hearing, the question is, did we comply? The answer is no. But not because we did not want to but because we

disagreed with the Directive or, in this case, did not know how to comply with an ambiguous Directive. This is where we now stand. Our rights under A.R.S. § 41-1092.03(C) have been violated, and, as

such, we are asked to answer to a citation that, under the Registrar's processes, had no option but to

violate. Therefore, our answer to the Citation is thus:

Charge 1: A.R.S. § 32-1154(A)(2)(b)

Departure from or disregard of: (b)A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another. Sharp Manufacturing and Contracting L.L.C. has not disregarded any building code. There is no building code stated in the Written Directive for the complaint items that we were instructed to correct,

namely, complaint items 1 and 2. When called to get clarity regarding complaint item #1, the Inspector was unwilling to strip away the ambiguity and clarify how we could know if we were complying with the Directive. In its current condition, we were told that the sidewalk does not fall below any Workmanship

Standard; it just needs to look good after correcting Complaint Item #2. Of course, everything needs to "look good" after any work is done. But what does "look good" mean? What code standard are we being

held against? Regarding item #2, the Inspector instructed us to "Google it." When we Googled it, we found a code

similar to the Directive and assumed the ¼ inch per foot, as written by the Inspector, was actually

referring to a code that required only a 2% grade, less than ¼ inch per foot. In addition, the 2% requirement is an exception to the code that the ground must slope 5% from the structure. The 2% code

does not stand on its own. Because there is no specific code for the slope of a front entry, we turned to the

Minimum Workmanship Standards published by the Registrar of Contractors, which covers slope only in terms of drainage. If the entry drains within a specified period of time after being flooded, it is within Received 6/14/2024 ROC Legal

standards. The Inspector did not perform that test. A few days after the inspection, we performed the test,

and it drained according to the minimum standards.

Charge 2: 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.

All work performed by Sharp Manufacturing and Contracting L.L.C. at the residence of the complainant is in accordance with the Registrar's published Minimum Workmanship Standards and industry standards.

Therefore, we have not violated this statute. Charge 3: 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.

Charge 3 is the challenge. No, we did not comply with the Written Directive. Not because we did not want to but because we were not given the clarity necessary to comply. In literal terms, we are in violation of A.R.S. § 32-1154(A)(22). However, we have only violated that statute as part of the Registrar's process

for appealing the Directive. They require that we violate this statute to get a hearing. Yet, the hearing we get is a compliance hearing, not an appeal. The process is counterintuitive at best and blatantly violates

the right to due process at worst. ANSWER TO COMPLAINT

The document titled "CITATION" by the Registrar gives instruction to title this answer "Written Answer to Citation and Complaint." This is a little confusing in that 1) the Registrar's document is only titled

"Citation" and not "Citation and Complaint," and 2) we were already asked to provide a written answer to

the complaint when it was first received. We provided that written answer within the original time requested. I will attach it to the end of this document. Received 6/14/2024 ROC Legal

MOTION TO RECLASSIFY

As a layperson citizen, and because the Office of Administrative Hearings is a quasi-court with its own

rules and processes, I do not know what classification various hearings have. Therefore, please forgive

any incorrect terminology and apply the proper classification that matches the spirit of my request.

My understanding is that a hearing as a result of not complying with a directive from the Registrar will be a compliance hearing. The question before the judge will be, did we comply or did we not. In that case,

the conclusion must be that we did not comply. We do not contest that. If that is the case, at what point are we able to appeal the Directive itself?

Our rights under A.R.S. § 41-1092.03(B) were ignored, and the Registrar violated A.R.S. § 41-

1092.03(C) by not forwarding our request for a hearing. We have been in business for 35 years. In that

time, we have received a few written directives from the Regisrar. We have complied with most of those

directives. The few we disagreed with have led us to request a hearing to appeal the directive. Not once has the Registrar acknowledged those requests. They have simply ignored them. This is the first time that the Registrar has acknowledged the request. We suppose that is a positive step away from ignoring, but it still violates A.R.S. § 41-1092.03(C).

We, therefore, are filing this MOTION TO RECLASSIFY from a compliance hearing to an appeal hearing so our appeal of the Directive may be heard.

RIGHT TO APPEAL AN APPEALABLE AGENCY ACTION To justify the reclassification of the hearing, the following will outline in more detail our rights that

have been violated, the processes of the Registrar that violate the law, and our right to appeal a Directive. After requesting the hearing for appeal, we were told by the Inspector via email:

"There isn't a statute requiring the O.A.H. to hear a dispute concerning the appeal of a

directive. If the work is not completed by the directive period, the complaint will then be directed to the legal department where a hearing will be scheduled assuming a valid/timely

answer is received by the R.O.C."

After sending an answer regarding the denial of the appeal, we received the following from the Registrar's Compliance Department: Received 6/14/2024 ROC Legal

"As of this moment, your written directive is not subject to appeal, as it remains valid

until tomorrow at 5:00 PM. For your convenience, I've provided a link to our website

outlining the complaint process to help clarify matters. Opting not to adhere to the directive

effectively serves as your appeal. Should you choose not to comply, the investigator will

advise issuing a citation. Upon receiving a citation, you may contest it (equivalent to what

you're presently considering as an appeal), initiating a request for a hearing. Subsequently, the case will be forwarded to O.A.H. for the hearing you're currently seeking."

Here the Compliance Department outlined the Registrar's process that requires violating A.R.S. § 32- 1154(A)(22) to "appeal." With this email was a link to a flowchart on the Registrar's website. The

flowchart outlined the same process as described. The flowchart did not include any reference to any

statute or rule.

We responded by asking:

"Nowhere in the [Administrative Procedures Act (A.P.A.)] or the A.G.'s Handbook is "opting not to adhere to the directive effectively serves as your appeal" part of the appeals process. Could you point me to where, in the law, that is part of the appeals process?" We also made it clear that according to statute and the A.P.A., any action that affects our rights, duties,

privileges, etc., by an appealable agency is appealable. The Compliance Department claimed that a Directive does not meet the criteria for appealability. To continue to argue their point, the Compliance Department replied:

"This directive is a fundamental aspect of your right to due process. The R.O.C. always encourages both parties to attempt to resolve disputes before a Jobsite inspection takes place.

Typically, when a complaint is filed, the complainants seek immediate citation. However, part of ensuring your due process involves a thorough and impartial investigation. If the complaint

is verified, a directive is issued. This directive provides you with the opportunity to address

the 32-1154 violations. Ignoring the directive or taking no action effectively serves as your appeal against it."

The Compliance Department doubled down on their convoluted process, "Ignoring the directive or

taking no action effectively serves as your appeal against it." But the first line of that response said it all: "This directive is a fundamental aspect of your right to due process." This was a clear admission that the Received 6/14/2024 ROC Legal

Directive is "a fundamental aspect" of our rights. This, therefore, makes it a clear appealable action of an

appealable agency. I replied with:

"Your most recent email states, "this directive is a fundamental aspect of your right to due

process." An appealable agency action is defined as an action that affects an individual's

rights, duties, and privileges. By your admission, a directive is a fundamental aspect of my

rights. If it is a "fundamental aspect," then it most certainly affects my rights, and if it affects my rights, it is appealable. In light of that admission, I again request a hearing to allow us to

appeal the Written Directive." That reply was ignored. The next correspondence with the Registrar was the Citation letter that we are

now giving answer to. Here are the statutes that outline our right to appeal and the guidance the Attorney

General offers agencies concerning those statutes.

A.R.S. § 41-1092.05 states explicitly that an appealable agency action can be appealed. Furthermore,

that statute states that the Registrar "shall" forward the appeal to the Office of Administrative Hearings, where the O.A.H. "shall" schedule a hearing. Article 10 of the A.P.A. defines an "appealable agency action" as "an action that determines the legal rights, duties or privileges of a party…" The Written Directive determines our legal rights, duties, and privileges. More on that below.

Waiting until the directive period to schedule a hearing provides several problems: 1. We are being deprived of due process. According to the Administrative Procedures Act, A.R.S. §§ 41-1001 to -1092.12, the ability to appeal and appealable agency action is required for due

process. 2. The hearing scheduled after the directive period is a compliance hearing. The question before the

Administrative Law Judge is whether or not we complied with the Directive. Based on the purview of the compliance hearing, we can technically only present our case regarding how we

complied with the Directive. If we did not fulfill the Directive, we have no case. At no point in

the hearing are we allowed to argue our appeal against the Directive itself. We are not asking for, nor do we want a compliance hearing. We are asking for an appellate hearing.

3. The Registrar's position is not to allow a Written Directive to be appealed and that the only way

for the Respondent to be granted a hearing is by failing to comply with the Directive. The Registrar has directed us to violate A.R.S. § 32-1154(A)(22) in order to "appeal." The problem Received 6/14/2024 ROC Legal

with this position is that the Registrar recommends that we break the law to get our day in court.

In that scenario, the Registrar is aiding and abetting our violation of the law. The Directive states

that "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." Failure to comply violates the law. How can the

Registrar's policy be that we must violate the law for us to receive due process? The Agency Handbook published by the Attorney General's office guides how state agencies should

comply with Chapter 10 of Arizona's Administrative Procedure Act (A.P.A.), A.R.S. §§ 41-1001 to - 1092.12. The Registrar of Contractors is within the legal jurisdiction of Chapter 10 of the A.P.A. I have

taken pertinent excerpts from Chapter 10 to clarify the Registrar's duties concerning an appeal of an

appealable agency action.

CHAPTER 10

ADMINISTRATIVE ADJUDICATIONS 10.1 Scope of this Chapter. Arizona's Administrative Procedure Act (A.P.A.), A.R.S. §§ 41-1001 to -1092.12, establishes the minimum procedures that must be followed for two important functions of most departments, boards and agencies - administrative adjudications

and rule-making. This Chapter addresses only administrative adjudications. Chapter 11 discusses the rule making provisions of the A.P.A. Specifically, this Chapter describes the procedures that state administrative agencies

follow in adjudicating "contested cases" or "appealable agency actions," which are defined in the A.P.A. as actions that affect "the legal rights, duties, and privileges" of individual parties.

A.R.S. § 41-1001(5)(defining contested case); A.R.S. § 41-1092(3)(defining appealable agency action).

Chapter 6 of the A.P.A. calls appeals "contested case," and Chapter 10 calls them "appealable agency

actions." The Registrar falls under Chapter 10, "appealable agency actions." That is defined in the A.P.A. as actions that affect "the legal rights, duties, and privileges" of individual parties. A Written Directive

affects our legal rights, duties, and privileges.

Every agency must follow the statutory scheme in either Article 6 of the A.P.A., A.R.S. §§ 41-1061 through -1067 (titled "Adjudicative Proceedings"), or Article 10 of the A.P.A., Received 6/14/2024 ROC Legal

A.R.S. §§ 41-1092 through -1092.12 (titled "Uniform Administrative Hearing Procedures"),

when conducting administrative adjudications.

Caveat: Nearly all administrative adjudications conducted by state agencies are subject to

the A.P.A., and the A.P.A. supersedes any other statute that would diminish a right provided

in the A.P.A., unless a statute expressly provides otherwise. A.R.S.§ 41-1002 (B). However,

the A.P.A. also specifically states that agencies may grant procedural rights greater than those allowed by the A.P.A., so long as those rights do not substantially prejudice the rights of

others. See A.R.S. § 41-1002(B), (C). An agency's specific statutes and rules must, therefore, be reviewed to determine if any rights differ from those described in this Chapter.

Every agency must follow the A.P.A., including the Registrar. This statute supersedes all agency rules.

Just because the Registrar may have a policy or rule that does not allow a Written Directive to be

appealed does not mean a Written Directive is not appealable. According to the A.P.A., a Written

Directive is appealable and supersedes the Registrar's opinion. 10.2.1 Definition of "Agency" and Statutory Exemptions. The A.P.A. defines the term "agency" as "any board, commission, department or other administrative unit of this state, including the agency head and . . . other persons directly or indirectly purporting to act on

behalf or under the authority of the agency head, whether created under the Constitution of Arizona or by enactment of the legislature." A.R.S. § 41-1001(1). This definition controls over all other statutes in determining whether an entity is an "agency" for purposes of the

A.P.A., including the organic laws of that entity. See Thompson v. Tucson Airport Auth., 163 Ariz. 173, 786 P.2d 1024, 1025 (App. 1989).

Under the A.P.A., the Registrar is an "agency" that is governed by the A.P.A. 10.2.2 Administrative Adjudications Requiring Application of the A.P.A. Both Article 6

and 10 of the A.P.A. refer to "contested cases." Article 10 of the A.P.A. includes the additional

concept of the "appealable agency action." These are terms defined specifically to apply to different types of agency decisions. This subsection examines the meaning of these key

phrases.

10.2.2.2 Appealable Agency Actions. Article 10 of the A.P.A. defines an "appealable agency action" as "an action that determines the legal rights, duties or 10-3 Revised 2018 Received 6/14/2024 ROC Legal

privileges of a party and that is not a contested case." A.R.S. § 41-1092(3). A hearing on an

appealable agency action occurs after an agency renders a decision and only when a party

with standing to challenge the decision requests a hearing. See A.R.S. § 41-1092.03. Also, a

hearing on an "appealable agency action" occurs only for agencies governed by Article 10 of

the A.P.A.

The definition of "appealable agency action" exempts several actions, including: (a) "interim orders by self-supporting regulatory boards", (b) "rules, orders, standards or

statements of policy of general application issued by an administrative agency to implement, interpret or make specific the legislation enforced or administered by it," and (c) rules

"concerning the internal management of the agency that do not affect private rights or

interests." A.R.S. § 41-1092(3); see also A.R.S. § 41-1092(7) (listing self-supporting

regulatory boards). An agency's organic statutes may also exempt application of the

procedures for a decision that might otherwise be considered an appealable agency action. See, e.g., A.R.S. § 8-811 (applicable to certain D.E.S. decisions). A Written Directive does not fall within the definitions of exempt agency actions. (a) the Registrar is not a self-supporting board, so (a) is moot, (b) the Written Directive is not a rule, order, standard, or

statement of general application, and (c) the Written Directive is not internal management of the Registrar. I am unaware of any statutes that would exempt the appeal of a Written Directive. 10.2.2.3 Determining Whether "Legal Rights, Duties or Privileges" Are Affected. The

A.P.A. does not define the term "legal rights, duties or privileges." In general, the federal and state constitutions, together with Arizona statutes and rules, determine the existence of legal

rights, duties, or privileges. The Fourteenth Amendment to the United States Constitution and Article II, Section 4, of

the Arizona Constitution, which both provide that "[n]o person may be deprived of life,

liberty, or property without due process of law," require notice and an opportunity for hearing before an agency can take away a person's property interest, such as an existing license to

practice a profession. See Schillerstrom v. State, 180 Ariz. 468, 471, 885 P.2d 156, 159 (App.

1994). Due process, however, is not a technical concept with fixed requirements, but is instead flexible, calling only for those procedural protections demanded by the particular Received 6/14/2024 ROC Legal

situation. Mathews v. Eldridge, 424 U.S. 319, 334 (1976); see also Comeau v. Arizona State

Bd. of Dental Exam'rs, 196 Ariz. 102, 107, 993 P.2d 1066, 1071 (App. 1999).

In some situations in which due process may not necessarily require a full hearing before an

agency decision, Arizona law creates such a right by statute or rule. See, e.g., A.R.S. § 49-

428(A). This statutory grant of a procedural right constitutes the type of "legal right, duty or

privilege" to which the A.P.A. applies. An agency may also create a right to a hearing by its rules. Whether the A.P.A. applies

will depend on the language of the rule and the context of the agency decision. For example, the Arizona Court of Appeals considered the unique nature of a prison setting in holding that

an inmate disciplinary hearing is not a "contested case" within the meaning of the A.P.A.

Rose v. Ariz. Dept. of Corrections, 167 Ariz. 116, 120, 804 P.2d 845, 849 (App. 1991).

In general, questions about the requirement of a full hearing under the A.P.A. should be

resolved in favor of affording a party a hearing. The AG's Handbook clarifies that "legal rights, duties or privileges" are not defined by the A.P.A.; therefore, we must turn to the U.S. and Arizona Constitutions for such definitions. Those definitions refer to "life, liberty, and property" as our "rights, duties, and privileges." Failing to grant us appellate action on

the Written Directive is a violation of our life, liberty, and property, not only because forcing us to not comply with the Directive to force a hearing could result in our losing or suspending our license if we are found not to comply, which would be true if we did not comply, even if it was to force a hearing, but the

action of the Written Directive itself forces us to use our life, liberty, and property to comply with the Directive without due process of the right to appeal. In addition, the admission that the Directive is

fundamental to our right to due process is an admission that the Directive is appealable. If it is fundamental to our right, it certainly affects that right.

The Written Directive itself states that "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." The Directive states that it affects our

rights, duties, and privileges.

Suppose there is any question as to the validity of our appeal. In that case, the Handbook says, "In general, questions about the requirement of a full hearing under the A.P.A. should be resolved in favor of Received 6/14/2024 ROC Legal

affording a party a hearing." It would be safer, legally, for the Registrar to lean toward granting the appeal

rather than denying it.

10.3 Determining Whether a Hearing is Required Prior to Action. The A.P.A.

contemplates that hearings may occur either before or after an agency makes a decision that

determines a "right, duty or privilege." As a general rule, a hearing occurs upon request of a

party after an agency decision when the agency is deciding whether or not to grant a privilege, and an opportunity for hearing must occur before an agency decision when the

agency is deciding whether to alter or terminate a privilege that has already been granted. Both Article 6 and Article 10 of the A.P.A. specifically provide that "[n]o revocation,

suspension, annulment or withdrawal of any license is lawful unless, prior to the action, the

agency provides the licensee with notice and an opportunity for a hearing in accordance with

[the A.P.A.]." A.R.S. § 41-1064(C); A.R.S. § 41-1092.11(B). This statutory requirement is

consistent with principles of due process, which generally require an opportunity for a hearing before a decision is made to revoke an existing property right or privilege. State v. O'Connor, 171 Ariz. 19, 23, 827 P.2d 480, 484 (App. 1992). This provision does not address whether a hearing is required prior to the imposition of civil penalties on a person who holds

a license. Some agencies treat the imposition of civil penalties as an appealable agency action and hold a hearing upon request by the licensee. See A.R.S. § 3-3475(A) (Division of Weights & Measures). Other agencies treat the matter as a contested case and impose civil

penalties only after an opportunity for an administrative proceeding. A.R.S. § 32-1451(K) (Arizona Medical Board). If you have any question about whether a hearing should be held

before or after imposing a sanction other than those listed above, you should seek advice from your legal counsel.

In our case, we have a right to appeal for reasons that apply after and before an action. A written

Directive is an appealable agency action because it affects our rights, duties, and privileges immediately upon its issuance; hence, we have the right to appeal to a hearing after that action. We also have a right to

appeal because, as the Directive states, "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 Received 6/14/2024 ROC Legal

civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00." Since failure to comply would affect our

rights, duties, and privileges, we have a right to appeal prior to those actions as well.

10.4.2 Application of Article 10 to Most State Agencies. Unless expressly exempted by

A.R.S. § 41-1092.02(A), every State agency in Arizona is required to apply Article 10 of the

A.P.A. to conduct all contested cases and appealable agency actions. Also, A.R.S. § 41-

1092.02(B) indicates that the procedural rules established by the Director of O.A.H. apply to all hearings conducted under Article 10. Thus, even if an agency chooses not to use O.A.H. to

conduct its hearings, and instead conducts the hearing itself under the authority of A.R.S. § 41-1092.01(F), the agency must apply the procedures in Article 10 and should follow the

rules created by O.A.H. for Article 10 hearings. In addition, an agency's organic statutes may

require application of Article 10 and the use of O.A.H. as the administrative law judge for the

hearing. See, e.g., A.R.S. § 8-811(J).

10.4.2.1 Exemptions from Application of Article 10. Agencies exempt from Article 10 of the A.P.A. are listed in A.R.S. § 41-1092.02(A). The Legislature may exempt other agencies from Article 10 by so providing in the agency's organic statutes. The Registrar is required to comply with the A.P.A.

10.5.1.3 Appealable Agency Actions. Article 10 of the A.P.A. recognizes a type of administrative adjudication called the "appealable agency action," which is defined broadly to include any action that determines the legal rights, duties, or privileges of a party that is not

preceded by an opportunity for a hearing. A.R.S. § 41-1092(3). When an agency makes a decision that constitutes an appealable agency action, it is required to serve notice on the

affected individual, and hold a hearing if requested. A.R.S. § 41-1092.03. The procedures for appealable agency actions are more fully discussed at Sections 10.6.3 and 10.7 through

10.7.6.

10.7.2 The Notice of Appeal. A party may obtain a hearing by filing a notice of appeal that meets the statutory requirements within thirty (30) days after receiving the notice of

appealable agency action. A.R.S. § 41-1092.03(B). The notice of appeal may be filed by the

party whose legal rights, duties, or privileges were determined by the agency, or by anyone who is adversely affected by the appealable agency action and who was allowed to comment Received 6/14/2024 ROC Legal

on the action by law or rule. Id. If good cause is shown, an agency head may accept an appeal

that is not filed timely. A.R.S. § 41-1092.03(C).

This reiterates what an appealable agency action is and that the agency must grant a requested hearing. In

addition, section 10.7.2 makes it clear that we have standing to request an appeal.

CONCLUSION The forgoing arguments should be clear that our original request for an appellate hearing should have

been granted. We do not have any desire to ignore a directive from the Registrar. We never have in 35 years of business. We desire some clarity regarding the Directive. If that clarity results in the realization

that the original work complies with applicable code, Minimum Workmanship Standards, or industry

standards, then the Directive should be rescinded. If that clarity determines that corrective work is

required and can be clear, then we will have no argument with completing a clearer directive. Either way,

if the Registrar is unwilling to amend the Directive with more clarity, an appellate hearing is the proper venue for finding that clarity—a compliance hearing is most certainly not appropriate.

Received 6/14/2024 ROC Legal

April 16, 2024

Re: Complaint No. 2024-03445

Complainant: Rosemary Crowley 6768 W. Morrow Drive Glendale, AZ 85308

Respondent: Sharp Manufacturing and Contracting LLC 128 W Boxelder Pl Ste 105 Chandler, AZ 85225

Inspector Wiscow,

Below are our answers to the specific complaints by the Complainant. Also included are supporting documents and pictures.

We’ll be at the inspection on Friday.

Thanks, Bill Norton Sharp Manufacturing and Contracting 602-910-0290

1. “Grade to my yard was change by at least 3" or more creating an unsafe and hazardous area along walkway.”

The customer ordered stamped concrete front entry and walk OVERLAY. The original estimate, which became part of the contract at the time of contract, clearly states that the work is an overlay. In our product literature and website we clearly describe an overlay as a concrete overlay ranging in height from 1.5” to 3.” Pictures of overlay entries are included in product literature.

Sharp Contracting does not change the grade of the home or property, as stated in the “Contractual Agreement” page.

The Complainant has also complained that a raised walk and entry with a “slope” to the drive is not common. The enclosed pictures shows 3 homes in their neighborhood with overlays up to the entry stoop and overlaying the walk. One Received 6/14/2024 ROC Legal

paver overlay has a step at the drive. Two of these homes are only two houses away in both directions.

2. “Ruined front door entrance by eliminating step which causes water to flow to entrance when it rains.”

Again, we do not change the grade of the property or home. Flood water would need to raise to the exact same level to enter the house with or without the overlay. If any water is entering the home at the front door, that would be a threshold seal problem, not a concrete overlay problem.

3. “Busted front yard lighting system that I had for 22 years and front yard drip system that I had for 22 years. Told me too bad. That happens.”

We do what we reasonably can to avoid damaging any existing features at a home. However, we make it very clear in the “Contractual Agreement” and the “What to Expect” pages of the contract that we cannot be held responsible for items that are not clearly marked, and if there is any damage done then the homeowner will need to cover the cost of those repairs (especially for 22 year old systems).

4. “They had me sign "complete satisfaction" paperwork and pay them balance before they even started the work on 9/6/22. It was 6:30am when they arrived on 9/6/22. I didn't want to sign anything or pay balance until work was completed. CoCo (supervisor) said I had to sign per contract. Office didn't open until 9am, so no one to talk to.”

It is not our policy to have a homeowner sign “Completion Satisfaction” nor pay in full until the job is “substantially complete.” The crew has the homeowner sign the “Layout Satisfaction” after they arrive and go over the project with the homeowner. If a homeowner will not be present at the time of completion, they may elect to sign and pay before the job is complete. However, we strongly encourage the homeowner to be there when the job is complete so they can look at the work upon completion. These policies were followed. Received 6/14/2024 ROC Legal Received 6/14/2024 ROC Legal Received 6/14/2024 ROC Legal Received 6/14/2024 ROC Legal Received 6/14/2024 ROC Legal Received 6/14/2024 ROC Legal Received 6/14/2024 ROC Legal Received 6/14/2024 ROC Legal

Arizona Registrar of Contractors 1700 W Washington St #105 Phoenix, AZ 85007

Cc: Office of Administrative Hearings 1400 West Washington Street Phoenix, AZ 85007

Cc: Complainant: Rosemary Crowley 6768 W. Morrow Drive Glendale, AZ 85308

Respondent: Sharp Manufacturing and Contracting LLC 128 W Boxelder Pl Ste 105 Chandler, AZ 85225 License No. ROC 294252

Re: Complaint No. 2024-03445

Date: 9 May 2024

Subject: Appeal of Written Directive Issued by Arizona Registrar of Contractors

To Whom It May Concern,

I am writing to appeal the Written Directive from The Registrar formally issued on 22 April 2024 by Inspector Mike Wiskow of the Arizona Registrar of Contractors regarding complaints Items 1 and 2 from Complaint No. 2024-03445 as described in the Directive. Pursuant to our rights under A.R.S. § 41-1092.03(B), I respectfully request that pursuant to A.R.S. § 41-1092.03(C), the Registrar of Contractors notify the Office of Administrative Hearings of the appeal and request for a hearing, as the findings and the corresponding directives do not align with Workmanship Standards for Licensed Contractors published by the Registrar of Contractors, established industry standards, or specific regulatory building code. And that the Office of Administrative Hearings, pursuant to A.R.S. § 41-1092.05, schedule a hearing to place the matter before an administrative judge.

As per instruction in A.R.S. § 41-1092.03(B), the reasons for the appeal and supporting documents are below. Additional documentation that is not available at this time will be provided at the hearing.

Our goal is not to argue with the Registrar but to get some clarity about the Directive. We do not know how to comply with the Directive as it is currently written.

Complaint Item #1: "Grade to my yard was change by at least 3" or more creating an unsafe and hazardous area along walkway." Received 6/14/2024 ROC Legal

The Written Directive for correcting Complaint Item #1 is ambiguous and lacks alignment with the Workmanship Standards for Licensed Contractors and generally recognized industry standards. The Registrar's Directive does not specify the exact nature of the "unsafe and hazardous area" nor provides a standard for the required remedy. The Directive broadly mentions that the sidewalk should follow the original grade and avoid being unsightly, but does not define or quantify what constitutes an unsightly condition, thereby leaving the Directive open to subjective interpretation, which is not a reasonable basis for a directive of this nature. The Workmanship Standards for Licensed Contractors booklet does not address the slope or grade of a sidewalk in any way that relates to the complaint.

I called to speak with Inspector Wiskow to get some clarity and was told that the sidewalk, in its current condition, does not fall below any Workmanship Standard; it just needs to look good after correcting Complaint Item #2. That leaves the determination of compliance to subjective opinion. Case in point: The Complainant has the subjective opinion that the current sidewalk is unsightly, and our subjective opinion is that it is not unsightly. Which subjective opinion is correct?

Complaint Item #2: "Ruined front door entrance by eliminating step which causes water to flow to entrance when it rains."

The Directive to correct Complaint Item #2 does not cite a specific violation of any city, county, or state building code. While the Directive references A.A.C. R4-9-108(a), it fails to detail how the current slope constitutes a failure to perform work in a professional and workmanlike manner. It does not address the actual complaint. The complaint is not about drainage; it is about eliminating the step at the front door entrance, which allegedly causes water to get into the house when it rains. There is no violation of code, workmanship standards, or industry standards in pouring concrete up to the height of the house slab at the entrance.

The Inspector did not address the actual complaint, the height of the step, but instead simply stated, "Concrete should slope away from home 1/4" per foot." When I called the Inspector for clarity, he told me he could look it up and send it to me (which he has not done) and told me to just "Google it."

I have spent hours Googling it and have found no code that says, "Concrete should slope away from home 1/4" per foot" (see Figure 1). I came across many websites that say the slope should be between 1/8" and 1/4" per foot and/or 2%. The only code I could find was a 2% slope recommended by the International Residential Code (IRC), code R401.3 Drainage. While some websites use 2% and 1/4" per foot interchangeably, the IRC does not, because 1/4" per foot is steeper slope that 2%. If that is the code the Inspector is referring to, we would expect the code to be quoted accurately.

Assuming the Inspector is referring to IRC code R401.3 Drainage, that code does not apply. Code R401.3 is about the overall drainage away from the home's foundation. The code states:

R401.3 Drainage

Surface drainage shall be diverted to a storm sewer conveyance or other approved point of collection that does not create a hazard. Lots shall be graded to drain surface water away from foundation walls. The grade shall fall a minimum of 6 inches (152 mm) within the first feet (3048 mm). Received 6/14/2024 ROC Legal

Exception: Where lot lines, walls, slopes or other physical barriers prohibit 6 inches (152 mm) of fall within 10 feet (3048 mm), drains or swales shall be constructed to ensure drainage away from the structure. Impervious surfaces within 10 feet (3048 mm) of the building foundation shall be sloped a minimum of 2 percent away from the building.

The 2% slope, in this case, is part of the "Exception" section. This indicates that it is a secondary code, not a primary code. In addition, the ground slope at the Complainant's home is between -1% and 0%, far below the recommended 5%. This makes it clear that this code was not applied to the development of the Complainant's subdivision by the city of Glendale.

In our post-Written Directive phone call with the Inspector, he indicated that there needs to be a 1/4" slope away from the home in all directions. This is not only not required by code, but it is also not possible in most cases and would be unsightly in others (see Figure below).

Due to the ambiguity of the Directive for Complaint Item #2 concerning any cited code, we are left to fall back on the other two criteria used by the Registrar of Contractors to determine if a complaint item needs to be corrected, 1) Workmanship Standards for Licensed Contractors and 2) industry standards.

Workmanship Standards for Licensed Contractors booklet published by the Registrar of Contractors has no standard about the minimum slope or the direction of the slope of an exterior concrete entry pad. It does have a slope standard for the interior slab, so sloped concrete is in the sights of the Registrar, just not for exterior slabs. Drainage is the issue for exterior slabs. As such, the Workmanship Standards for Licensed Contractors addresses that:

Concrete:

Possible deficiency: Ponding or standing water on garages, patios, stoops, carports, walks and driveway concrete surfaces.

Acceptable tolerance: Water should drain. Standing water exceeding 3/32" is unacceptable. Standing water exceeding 3/16" on driveways is unacceptable. Flood, wait 30 minutes and then check for ponding. Received 6/14/2024 ROC Legal

Contractor responsibility: Contractor should make necessary repairs.

It is clear by this workmanship standard that slope is not the standard; drainage is. So long as the concrete drains so there is no standing water deeper than 3/32", the slope is not a concern. The method for checking for this standard is to "flood, wait 30 minutes and then check for ponding." At the time of the inspection, the Inspector did not flood the entryway and, therefore, could not determine if that standard was met. After the Written Directive, we returned to the site and performed the flood test. The following pictures show the entry after 12 minutes. The key in the picture is roughly 3/32" thick. The picture shows that the water does not cover the key—it is less than 3/32" deep. Based on this test, the entryway does not fall below the specified standard in the Workmanship Standards for Licensed Contractors.

The final test is to determine if the work is within industry standards. From the street, the entryways of many homes in the Complainant's subdivision can be observed that most, if not all, entryways do not have a 1/4" per inch slope. Evidence of such will be provided at the hearing.

As seen in the photos below, the entryways of the Arizona State Legislature's House and Senate buildings and the West entry to the Executive Tower all have a slope of less than 1/4" per foot. The concrete is poured up to the threshold level, as is the Complainant's home. The significance of the Executive Tower is that it is where the Arizona Registrar of Contractors' offices are located. The inspectors walk on that entry every day. Received 6/14/2024 ROC Legal Received 6/14/2024 ROC Legal

In these two examples, the Complainant's subdivision and the Registrar's home should be enough to establish the industry standard for slope. It can be observed in the photos that there are small puddles of standing water on the Executive Tower entry, indicating that there is far less than 1/4" per foot slope. It can also be observed that the existing slope only slopes away from one wall of the structure and level along the other wall. This is the industry standard. Sloping from all walls of the structure is not only not industry standard but is often not possible or would be unsightly, as explained above. A comparison with the industry standards, especially those observed in similar installations within our state offices, should be considered to ensure fairness and consistency in applying the rules.

I am prepared to discuss this matter at a hearing and provide any necessary documentation or expert opinion to support my appeal.

Thank you. I look forward to your response.

Sincerely,

Bill Norton Sharp Manufacturing and Contracting 480-539-5944 Received 6/14/2024 ROC Legal Received 6/14/2024 ROC Legal Received 6/14/2024 ROC Legal Received 6/14/24, 11:11 AM State of Arizona Mail - Answer to Citation and Complaint Case No. 2024-03445 6/14/2024 ROC Legal

Answers - AZROC <[email redacted]>

Answer to Citation and Complaint Case No. 2024-03445 message

William Norton <[email redacted]> Fri, Jun 14, 2024 at 11:01 AM To: "[email redacted]" <[email redacted]> Cc: Alan Norton <[email redacted]>, "[email redacted]" <[email redacted]>

Answer to Citation and Complaint Case No. 2024-03445 is attached.

Please notify me of receipt.

Bill Norton

Sharp Manufacturing and Contracting LLC

480-539-5944

Answer to Citation and Motion to Reclassify_2024-03445.pdf 5691K

https://mail.google.com/mail/b/AEoRXRSu5pbeOWFpotUqBeXMf_tmw5KHd8BRlo-ymKWLewfMD8RL/u/0/?ik=581c53cf5c&view=pt&search=all&per… 1/1 Arizona Registrar of Contractors 1700 W Washington St #105 Phoenix, AZ 85007

Cc: Office of Administrative Hearings 1400 West Washington Street Phoenix, AZ 85007

Cc: Complainant: Rosemary Crowley 6768 W. Morrow Drive Glendale, AZ 85308

Respondent: Sharp Manufacturing and Contracting LLC 128 W Boxelder Pl Ste 105 Chandler, AZ 85225 License No. ROC 294252

Re: Complaint No. 2024-03445

Date: 9 May 2024

Subject: Answer to Denial of Appeal of Written Directive Issued by Arizona Registrar of Contractors

Inspector Wiskow,

First, thank you for at least acknowledging our request for a hearing. This is the first time in 35 years that the Registrar has acknowledged our request. I want to address your reply to my request for a hearing regarding the Written Directive, an appealable action agency action. Your replay stated:

"There isn't a statute requiring the OAH to hear a dispute concerning the appeal of a directive. If the work is not completed by the directive period, the complaint will then be directed to the legal department where a hearing will be scheduled assuming a valid/timely answer is received by the ROC."

Could you send me the statute or Registrar rule or policy, internal, public, or otherwise, that says that a Written Directive is not appealable?

I'll address the code you attached to your email, IRC R401.3 Drainage. As outlined in my request for an appeal document, that code is not what you cited in your Written Directive. IRC R401.3 calls for a 2% grade; you cited 1/4" per foot. While 2% is close to 1/4" per foot is close, what you cited is not the same as the code. Please cite the 1/4" per foot code. As outlined in my document, I showed industry standards using your office building. How do you account for that? Lastly, the Complainant's home does not even come close to having a 5% grade away from the house as per IRC R401.3. If that code does not apply, how can a subsection of that code, where the 2% is mentioned, apply? A.R.S. § 41-1092.05 states explicitly that an appealable agency action can be appealed. Furthermore, that statute states that the Registrar "shall" forward the appeal to the Office of Administrative Hearings, where the OAH "shall" schedule a hearing. The legal term "shall" means that the party must perform the action; it is not left to their discretion to not perform the action. . Article 10 of the APA defines an "appealable agency action" as "an action that determines the legal rights, duties or privileges of a party…" The Written Directive determines our legal rights, duties, and privileges. More on that below.

Waiting until the directive period to schedule a hearing provides several problems:

1. We are being deprived of due process. According to the Administrative Procedures Act, A.R.S. §§ 41-1001 to -1092.12, the ability to appeal and appealable agency action is required for due process. 2. The hearing scheduled after the directive period is a compliance hearing. The question before the Administrative Law Judge is whether or not we complied with the Directive. Based on the purview of the compliance hearing, we can technically only present our case regarding how we complied with the Directive. If we did not fulfill the Directive, we have no case. At no point in the hearing are we allowed to argue our appeal against the Directive itself. We are not asking for, nor do we want a compliance hearing. We are asking for an appellate hearing. 3. The Registrar's position is not to allow a Written Directive to be appealed and that the only way for the Respondent to be granted a hearing is by failing to comply with the Directive. A recent conversation with the Registrar's legal department reiterated this position. I was told that if I disagreed with the Directive, I should not comply and let it go to a hearing. The problem with this position is that the Registrar recommends that we break the law to get our day in court. In that scenario, the Registrar is aiding and abetting our violation of the law. The Directive states that "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." Failure to comply violates the law. How can the Registrar's policy be that we must violate the law for us to receive due process? This goes against hundreds of years of common practice in jurisprudence. Show me another application where a person must violate the law to be granted due process.

The Agency Handbook published by the Attorney General's office guides how state agencies should comply with Chapter 10 of Arizona's Administrative Procedure Act (APA), A.R.S. §§ 41-1001 to - 1092.12. The Registrar of Contractors is within the legal jurisdiction of Chapter 10 of the APA. I have taken pertinent excerpts from Chapter 10 to clarify the Registrar's duties concerning an appeal of an appealable agency action.

CHAPTER 10

ADMINISTRATIVE ADJUDICATIONS

10.1 Scope of this Chapter. Arizona's Administrative Procedure Act (APA), A.R.S. §§ 41-1001 to -1092.12, establishes the minimum procedures that must be followed for two important functions of most departments, boards and agencies - administrative adjudications and rule-making. This Chapter addresses only administrative adjudications. Chapter 11 discusses the rule making provisions of the APA.

Specifically, this Chapter describes the procedures that state administrative agencies follow in adjudicating "contested cases" or "appealable agency actions," which are defined in the APA as actions that affect "the legal rights, duties, and privileges" of individual parties. A.R.S. § 41-1001(5)(defining contested case); A.R.S. § 41-1092(3)(defining appealable agency action).

Chaper 6 of the APA calls appeals "contested case," and Chaper 10 calls them "appealable agency actions." The Registrar falls under Chapter 10, so we will use the term "appealable agency actions." That is defined in the APA as actions that affect "the legal rights, duties, and privileges" of individual parties. A Written Directive affects our legal rights, duties, and privileges.

Every agency must follow the statutory scheme in either Article 6 of the APA, A.R.S. §§ 41- 1061 through -1067 (titled "Adjudicative Proceedings"), or Article 10 of the APA, A.R.S. §§ 41- 1092 through -1092.12 (titled "Uniform Administrative Hearing Procedures"), when conducting administrative adjudications.

Caveat: Nearly all administrative adjudications conducted by state agencies are subject to the APA, and the APA supersedes any other statute that would diminish a right provided in the APA, unless a statute expressly provides otherwise. A.R.S.§ 41-1002 (B). However, the APA also specifically states that agencies may grant procedural rights greater than those allowed by the APA, so long as those rights do not substantially prejudice the rights of others. See A.R.S. § 41-1002(B), (C). An agency's specific statutes and rules must, therefore, be reviewed to determine if any rights differ from those described in this Chapter.

Every agency must follow the APA, including the Registrar. This statute supersedes all agency rules. Just because the Registrar may have a policy or rule that does not allow a Written Directive, an appealable agency action, to be appealed does not mean a Written Directive is not appealable. According to the APA, a Written Directive is appealable and supersedes the Registrar's opinion.

10.2.1 Definition of "Agency" and Statutory Exemptions. The APA defines the term "agency" as "any board, commission, department or other administrative unit of this state, including the agency head and . . . other persons directly or indirectly purporting to act on behalf or under the authority of the agency head, whether created under the Constitution of Arizona or by enactment of the legislature." A.R.S. § 41-1001(1). This definition controls over all other statutes in determining whether an entity is an "agency" for purposes of the APA, including the organic laws of that entity. See Thompson v. Tucson Airport Auth., 163 Ariz. 173, 786 P.2d 1024, 1025 (App. 1989).

Under the APA, the Registrar is an "agency" that is governed by the APA.

10.2.2 Administrative Adjudications Requiring Application of the APA. Both Article 6 and 10 of the APA refer to "contested cases." Article 10 of the APA includes the additional concept of the "appealable agency action." These are terms defined specifically to apply to different types of agency decisions. This subsection examines the meaning of these key phrases. 10.2.2.2 Appealable Agency Actions. Article 10 of the APA defines an "appealable agency action" as "an action that determines the legal rights, duties or 10-3 Revised 2018 privileges of a party and that is not a contested case." A.R.S. § 41-1092(3). A hearing on an appealable agency action occurs after an agency renders a decision and only when a party with standing to challenge the decision requests a hearing. See A.R.S. § 41-1092.03. Also, a hearing on an "appealable agency action" occurs only for agencies governed by Article 10 of the APA.

The definition of "appealable agency action" exempts several actions, including: (a) "interim orders by self-supporting regulatory boards", (b) "rules, orders, standards or statements of policy of general application issued by an administrative agency to implement, interpret or make specific the legislation enforced or administered by it," and (c) rules "concerning the internal management of the agency that do not affect private rights or interests." A.R.S. § 41- 1092(3); see also A.R.S. § 41-1092(7) (listing self-supporting regulatory boards). An agency's organic statutes may also exempt application of the procedures for a decision that might otherwise be considered an appealable agency action. See, e.g., A.R.S. § 8-811 (applicable to certain DES decisions).

A Written Directive does not fall within the definitions of exempt agency actions. (a) the Registrar is not a self-supporting board, so (a) is moot, (b) the Written Directive is not a rule, order, standard, or statement of general application, and (c) the Written Directive is not internal management of the Registrar. I am unaware of any organic statutes that would exempt the appeal of a Written Directive.

10.2.2.3 Determining Whether "Legal Rights, Duties or Privileges" Are Affected. The APA does not define the term "legal rights, duties or privileges." In general, the federal and state constitutions, together with Arizona statutes and rules, determine the existence of legal rights, duties, or privileges.

The Fourteenth Amendment to the United States Constitution and Article II, Section 4, of the Arizona Constitution, which both provide that "[n]o person may be deprived of life, liberty, or property without due process of law," require notice and an opportunity for hearing before an agency can take away a person's property interest, such as an existing license to practice a profession. See Schillerstrom v. State, 180 Ariz. 468, 471, 885 P.2d 156, 159 (App. 1994). Due process, however, is not a technical concept with fixed requirements, but is instead flexible, calling only for those procedural protections demanded by the particular situation. Mathews v. Eldridge, 424 U.S. 319, 334 (1976); see also Comeau v. Arizona State Bd. of Dental Exam'rs, 196 Ariz. 102, 107, 993 P.2d 1066, 1071 (App. 1999).

In some situations in which due process may not necessarily require a full hearing before an agency decision, Arizona law creates such a right by statute or rule. See, e.g., A.R.S. § 49- 428(A). This statutory grant of a procedural right constitutes the type of "legal right, duty or privilege" to which the APA applies.

An agency may also create a right to a hearing by its rules. Whether the APA applies will depend on the language of the rule and the context of the agency decision. For example, the Arizona Court of Appeals considered the unique nature of a prison setting in holding that an inmate disciplinary hearing is not a "contested case" within the meaning of the APA. Rose v. Ariz. Dept. of Corrections, 167 Ariz. 116, 120, 804 P.2d 845, 849 (App. 1991).

In general, questions about the requirement of a full hearing under the APA should be resolved in favor of affording a party a hearing.

The AG's Handbook clarifies that "legal rights, duties or privileges" are not defined by the APA; therefore, we must turn to the U.S. and Arizona Constitutions for such definitions. Those definitions refer to "life, liberty, and property" as our "rights, duties, and privileges." Failing to grant us appellate action on your Written Directive is a violation of our life, liberty, and property, not only because forcing us to not comply with the Directive to force a hearing could result in our losing or suspending our license if we are found not to comply, which would be true if we did not comply, even if it was to force a hearing, but the action of the Written Directive itself forces us to use our life, liberty, and property to comply with the Directive without due process of the right to appeal.

The Written Directive itself states that "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." The Directive states that it affects our rights, duties, and privileges.

Suppose there is any question as to the validity of our appeal. In that case, the Handbook says, "In general, questions about the requirement of a full hearing under the APA should be resolved in favor of affording a party a hearing." It would be safer, legally, for the Registrar to lean toward granting the appeal rather than denying it.

10.3 Determining Whether a Hearing is Required Prior to Action. The APA contemplates that hearings may occur either before or after an agency makes a decision that determines a "right, duty or privilege." As a general rule, a hearing occurs upon request of a party after an agency decision when the agency is deciding whether or not to grant a privilege, and an opportunity for hearing must occur before an agency decision when the agency is deciding whether to alter or terminate a privilege that has already been granted.

Both Article 6 and Article 10 of the APA specifically provide that "[n]o revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the action, the agency provides the licensee with notice and an opportunity for a hearing in accordance with [the APA]." A.R.S. § 41-1064(C); A.R.S. § 41-1092.11(B). This statutory requirement is consistent with principles of due process, which generally require an opportunity for a hearing before a decision is made to revoke an existing property right or privilege. State v. O'Connor, 171 Ariz. 19, 23, 827 P.2d 480, 484 (App. 1992). This provision does not address whether a hearing is required prior to the imposition of civil penalties on a person who holds a license. Some agencies treat the imposition of civil penalties as an appealable agency action and hold a hearing upon request by the licensee. See A.R.S. § 3-3475(A) (Division of Weights & Measures). Other agencies treat the matter as a contested case and impose civil penalties only after an opportunity for an administrative proceeding. A.R.S. § 32-1451(K) (Arizona Medical Board). If you have any question about whether a hearing should be held before or after imposing a sanction other than those listed above, you should seek advice from your legal counsel. In our case, we have a right to appeal for reasons that apply after and before an action. A written Directive is an appealable agency action because it affects our rights, duties, and privileges immediately upon its issuance; hence, we have the right to appeal to a hearing after that action. We also have a right to appeal because, as the Directive states, "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." Since failure to comply would affect our rights, duties, and privileges, we have a right to appeal prior to those actions.

10.4.2 Application of Article 10 to Most State Agencies. Unless expressly exempted by A.R.S. § 41-1092.02(A), every State agency in Arizona is required to apply Article 10 of the APA to conduct all contested cases and appealable agency actions. Also, A.R.S. § 41- 1092.02(B) indicates that the procedural rules established by the Director of OAH apply to all hearings conducted under Article 10. Thus, even if an agency chooses not to use OAH to conduct its hearings, and instead conducts the hearing itself under the authority of A.R.S. § 41-1092.01(F), the agency must apply the procedures in Article 10 and should follow the rules created by OAH for Article 10 hearings. In addition, an agency's organic statutes may require application of Article 10 and the use of OAH as the administrative law judge for the hearing. See, e.g., A.R.S. § 8-811(J).

10.4.2.1 Exemptions from Application of Article 10. Agencies exempt from Article 10 of the APA are listed in A.R.S. § 41-1092.02(A). The Legislature may exempt other agencies from Article 10 by so providing in the agency's organic statutes.

The Registrar is required to comply with the APA.

10.5.1.3 Appealable Agency Actions. Article 10 of the APA recognizes a type of administrative adjudication called the "appealable agency action," which is defined broadly to include any action that determines the legal rights, duties, or privileges of a party that is not preceded by an opportunity for a hearing. A.R.S. § 41-1092(3). When an agency makes a decision that constitutes an appealable agency action, it is required to serve notice on the affected individual, and hold a hearing if requested. A.R.S. § 41-1092.03. The procedures for appealable agency actions are more fully discussed at Sections 10.6.3 and 10.7 through 10.7.6.

10.7.2 The Notice of Appeal. A party may obtain a hearing by filing a notice of appeal that meets the statutory requirements within thirty (30) days after receiving the notice of appealable agency action. A.R.S. § 41-1092.03(B). The notice of appeal may be filed by the party whose legal rights, duties, or privileges were determined by the agency, or by anyone who is adversely affected by the appealable agency action and who was allowed to comment on the action by law or rule. Id. If good cause is shown, an agency head may accept an appeal that is not filed timely. A.R.S. § 41-1092.03(C).

Again, this reiterates what an appealable agency action is and that the agency must grant a requested hearing. In addition, section 10.7.2 makes it clear that we have standing to request an appeal. I am not sure what more can be said. The law and AG guidance clearly state that we SHALL be granted a hearing. Again, we are appealing the Written Directive and requesting an appellate hearing. If that is not granted, we formally request a hearing to appeal your appealable agency action of denying the appeal because that clearly affects our rights, duties, and privileges.

Sincerely, Bill Norton Sharp Manufacturing and Contracting Cell: 602-910-0290 Inspection Date: Inspection Date:

Concrete pitches left to right ¼ inch in 4 ft. Inspection Date: Inspection Date: Inspection Date: Inspection Date:

Negative pitch of ¼” in 4 ft. back to home Inspection Date: Inspection Date: Inspection Date: Inspection Date: Inspection Date: Inspection Date: 5/10/24, 11:28 AM State of Arizona Mail - Fwd: Appeal Written Directive Complaint No. 2024-03445

Michael Wiskow <[email redacted]>

Fwd: Appeal Written Directive Complaint No. 2024-03445 message

Alex Figueroa <[email redacted]> Fri, May 10, 2024 at 11:27 AM To: Chance Peterson <[email redacted]>, Robert Di Alto <[email redacted]> Cc: Michael Wiskow <[email redacted]>

Morning Chance and Robert,

I am looking for your input please...

The contractor involved is citing concerns that the ROC investigator is being ambiguous and asking for a hearing prior to the directive expiring (which expires in a few days).

Since he has been licensed for a while, I do know that the ROC at one time did allow hearing's upon request, but that is no longer the case. The statutes he is citing appear to be for OAH, but because I wish to do my due diligence....it is my understanding that a hearing is requested by the assigned investigator if the two parties have not resolved the directive. Therefore a hearing cannot be requested and honored until the directive expires.

Can the ROC send to legal for a hearing prior to the directive expiring, at the contractor's discretion?

And finally my intention is to explain to the contractor that neither INV Wiskow nor the ROC provides guidance or advice on how to address the item of concern on the directive. As stated in our introduction letter, A guide to Written Directives:

"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."

Am I on point or is the contractor on to something here.

Respectfully,

Alex Figueroa #145 Assistant Chief of Investigations Arizona Registrar of Contractors 1700 W. Washington St. Suite 105 Phoenix, AZ 85007 Office/FAX: (602) 771-6768 Email: [email redacted]

Fill out AZ ROC’s survey to let us know how we’re doing and how we can better serve you!

https://mail.google.com/mail/u/0/?ik=e45caa793b&view=pt&search=all&permthid=thread-f:[number redacted]&simpl=msg-f:[number redacted]… 1/3 5/10/24, 11:28 AM State of Arizona Mail - Fwd: Appeal Written Directive Complaint No. 2024-03445 ---------- Forwarded message --------- From: Compliance Department LIC - AZROC <[email redacted]> Date: Fri, May 10, 2024 at 8:38 AM Subject: Fwd: Appeal Written Directive Complaint No. 2024-03445 To: Alex Figueroa <[email redacted]>

Kind Regards,

ROC Compliance Department.

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CONFIDENTIALITY NOTICE: This e-mail message, including any attachments, is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message.

---------- Forwarded message --------- From: William Norton <[email redacted]> Date: Fri, May 10, 2024 at 8:28 AM Subject: Appeal Written Directive Complaint No. 2024-03445 To: [email redacted] <[email redacted]> Cc: [email redacted] <[email redacted]>, [email redacted] <compliancedepartmentlic@roc. az.gov>, [email redacted] <[email redacted]>, Alan Norton <[email redacted]>

Inspector Wiskow,

Please see the attached appeal to the Written Directive for Complaint No. 2024-03445. Pursuant to our rights under A.R.S. § 41-1092.03(B), I respectfully request that pursuant to A.R.S. § 41-1092.03(C), the Registrar of Contractors notify the Office of Administrative Hearings of the appeal and request for a hearing, as the findings and the corresponding directives do not align with Workmanship Standards for Licensed Contractors published by the Registrar of Contractors,

https://mail.google.com/mail/u/0/?ik=e45caa793b&view=pt&search=all&permthid=thread-f:[number redacted]&simpl=msg-f:[number redacted]… 2/3 5/10/24, 11:28 AM State of Arizona Mail - Fwd: Appeal Written Directive Complaint No. 2024-03445 established industry standards, or specific regulatory building code. And that the Office of Administrative Hearings, pursuant to A.R.S. § 41-1092.05, schedule a hearing to place the matter before an administrative judge.

As a licensed contractor in Arizona for over 30 years, we have requested a hearing to appeal a written directive a few times. The Registrar has never acknowledged or forwarded those requests to the Office of Administrative Hearings as per the law. The only way we could get a complaint before an administrative law judge was to not comply with the directive. This action forced it to a hearing as a compliance hearing. Recently, I had a conversation with the Registrar’s legal department, and I was told that if I disagreed with the directive, I should not perform the work, and then it would go to a hearing. Our past experience and that phone conversation violate our right to appeal and force us to break the law by not complying with the directive. Even worse, the hearing is held to determine our compliance rather than the validity of the written directive.

Please note that the law clearly states that the Registrar must schedule a hearing with the Office of Administrative Hearings upon request of a party affected by an action by the Registrar. “Shall” means that the appeal must receive a hearing. “The agency (in this case, the Registrar) shall notify the office (Office of Administrative Hearings) of the appeal or request for a hearing, and the office (Office of Administrative Hearings) shall schedule an appeal or contested case hearing pursuant to section 41-1092.05” (emphasis and parenthetical clarification added). This must be done as an appeal, not a compliance hearing after the fact.

Thank you for your attention to this matter.

Bill Norton

Sharp Manufacturing and Contracting

License No. ROC 294252

Appeal Complaint 2024-03445.pdf 1387K

https://mail.google.com/mail/u/0/?ik=e45caa793b&view=pt&search=all&permthid=thread-f:[number redacted]&simpl=msg-f:[number redacted]… 3/3 5/6/24, 8:02 AM State of Arizona Mail - Fwd: Written Directive

Michael Wiskow <[email redacted]>

Fwd: Written Directive message

[email redacted] <[email redacted]> Sat, May 4, 2024 at 8:22 AM Reply-To: [email redacted] To: [email redacted] Cc: [email redacted], [email redacted]

Good Morning Bill~

I received your voice message late Thursday afternoon. I was in an appointment and by the time it was over, it was too late to call you back. However, I did return your call first thing the next day, Friday, May 3rd. I have not heard back from you. Per your voice message you left on Thursday, I'm not quite sure what else we need to discuss other than to just schedule the work to be done. You said it was an easy fix when you were at my home on Monday, so I assumed it would be scheduled quickly. Please advise where we are with this corrective measure.

Thank you.

Rosie Crowley

From: [email redacted] To: [email redacted] Cc: [email redacted], [email redacted] Sent: 4/30/2024 2:57:43 PM US Mountain Standard Time Subject: Re: Written Directive

Good Afternoon Bill~

Per our conversation yesterday at my home, please go ahead and schedule the repair to my walkway. My understanding is that you will be totally removing the section by my front door and the section next to it and making the corrections per the Written Directive from the Registrar and following the Directive Requirements.

The only day I cannot have it done is Wednesday, May 8th, as I have other scheduled work being done to my yard that day. Please let me know when you have it scheduled by replying to this email.

Thank you.

Rosie Crowley

In a message dated 4/26/2024 8:21:48 AM US Mountain Standard Time, [email redacted] writes:

Mr. Wiskow,

I left a message for you on Tuesday, Wednesday, and Thursday and am still waiting for a callback. Could you let me know if you got my messages? As you know, we are under a deadline to fulfill your Written Directive. Your timely response would be appreciated.

https://mail.google.com/mail/u/0/?ik=e45caa793b&view=pt&search=all&permthid=thread-a:r-[number redacted]&simpl=msg-f:[number redacted]… 1/3 5/6/24, 8:02 AM State of Arizona Mail - Fwd: Written Directive 1. We need your guidance on Complaint Item #1. The Directive is not clear on whether this item requires correction or not. It suggests that it may be addressed as #2 is handled. However, the approaches we can take to address Complaint Item #2 may or may not impact the sidewalk and the substance of Complaint Item #1. If we choose an approach that doesn't affect the sidewalk grade or slope, you or the Complainant might feel we haven't fully addressed the Directive. Could you please clarify if Complaint Item #1 meets Minimum Workmanship Standards? We are also unsure what "no unnecessary slopes or steps should be in the sidewalk" means. How should we interpret or define "unnecessary?" What Minimum Workmanship Standard are we to follow to be sure there are "no unnecessary slopes or steps." Are you indicating that you have a specific remedy or process in mind for correcting Complaint Item #2 that you feel would affect Complaint Item #1? If so, what is that particular remedy or process, and could you cite the specific Minimum Workmanship standard, code, or industry standard that we should reference to be sure we are correcting it as per your expectations?

2. Could you cite the minimum standard, the specific building code, or explain the specific industry standard on which you are basing your Directive of Complaint Item #2? There are many instances, including grade restrictions, in which concrete may slope into a structure in one direction and away from it in another. This is typically acceptable if the slab ultimately drains, which, in this case, it does. While the front entry pad does slope into the wall with the door, it slopes away from the perpendicular wall to the left of the door. This overall slope allows the pad to drain in accordance with minimum standards. Letting us know the specific violation of Minimum Standards, building codes, or industry standards will help guide us on how best to correct Complaint Item #2 and if it will affect #1.

We have a meeting with the Complainant on Monday to discuss the fulfillment of the Directive. That meeting and our ability to schedule any work to be performed will be difficult without some clarity on these items. Your response today would be appreciated.

Thanks, Bill Norton Sharp Manufacturing and Contracting Cell: 602-910-0290

From: Michael Wiskow <[email redacted]> Sent: Tuesday, April 23, 2024 8:00 AM To: [email redacted]; [email redacted]; William Norton <[email redacted]> Subject: Written Directive

Please see attachment

Mike Wiskow

https://mail.google.com/mail/u/0/?ik=e45caa793b&view=pt&search=all&permthid=thread-a:r-[number redacted]&simpl=msg-f:[number redacted]… 2/3 5/6/24, 8:02 AM State of Arizona Mail - Fwd: Written Directive Investigator #217

AZ State Registrar of Contractors

602.771.6750

https://mail.google.com/mail/u/0/?ik=e45caa793b&view=pt&search=all&permthid=thread-a:r-[number redacted]&simpl=msg-f:[number redacted]… 3/3 5/1/24, 7:45 AM State of Arizona Mail - Re: Written Directive

Michael Wiskow <[email redacted]>

Re: Written Directive message

[email redacted] <[email redacted]> Tue, Apr 30, 2024 at 2:57 PM Reply-To: [email redacted] To: [email redacted] Cc: [email redacted], [email redacted]

Good Afternoon Bill~

The only day I cannot have it done is Wednesday, May 8th, as I have other scheduled work being done to my yard that day. Please let me know when you have it scheduled by replying to this email.

Thank you.

Rosie Crowley

In a message dated 4/26/2024 8:21:48 AM US Mountain Standard Time, [email redacted] writes:

Mr. Wiskow,

1. We need your guidance on Complaint Item #1. The Directive is not clear on whether this item requires correction or not. It suggests that it may be addressed as #2 is handled. However, the approaches we can take to address Complaint Item #2 may or may not impact the sidewalk and the substance of Complaint Item #1. If we choose an approach that doesn't affect the sidewalk grade or slope, you or the Complainant might feel we haven't fully addressed the Directive. Could you please clarify if Complaint Item #1 meets Minimum Workmanship Standards? We are also unsure what "no unnecessary slopes or steps should be in the sidewalk" means. How should we interpret or define "unnecessary?" What Minimum Workmanship Standard are we to follow to be sure there are "no unnecessary slopes or steps." Are you indicating that you have a specific remedy or process in mind for correcting Complaint Item #2 that you feel would affect Complaint Item #1? If so, what is that particular remedy or process, and could you cite the specific Minimum Workmanship standard, code, or industry standard that we should reference to be sure we are correcting it as per your expectations?

2. Could you cite the minimum standard, the specific building code, or explain the specific industry standard on which you are basing your Directive of Complaint Item #2? There are

https://mail.google.com/mail/u/0/?ik=e45caa793b&view=pt&search=all&permthid=thread-a:r-[number redacted]&simpl=msg-f:[number redacted]… 1/2 5/1/24, 7:45 AM State of Arizona Mail - Re: Written Directive many instances, including grade restrictions, in which concrete may slope into a structure in one direction and away from it in another. This is typically acceptable if the slab ultimately drains, which, in this case, it does. While the front entry pad does slope into the wall with the door, it slopes away from the perpendicular wall to the left of the door. This overall slope allows the pad to drain in accordance with minimum standards. Letting us know the specific violation of Minimum Standards, building codes, or industry standards will help guide us on how best to correct Complaint Item #2 and if it will affect #1.

Thanks, Bill Norton Sharp Manufacturing and Contracting Cell: 602-910-0290

From: Michael Wiskow <[email redacted]> Sent: Tuesday, April 23, 2024 8:00 AM To: [email redacted]; [email redacted]; William Norton <[email redacted]> Subject: Written Directive

Please see attachment

Mike Wiskow

Investigator #217

AZ State Registrar of Contractors

602.771.6750

https://mail.google.com/mail/u/0/?ik=e45caa793b&view=pt&search=all&permthid=thread-a:r-[number redacted]&simpl=msg-f:[number redacted]… 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