Carefree Truth

Issue #431, October 10, 2015

 

 

 

Gene Shareneorch spoke in support of the renovation of the wine bar, saying he couldn't remember the name of it.  Councilwoman Melissa Price prompted him that it had been called Cellar 13.  Mr. Shareneorch said that he and his wife had been customers of Cellar 13, enjoying many meals there, along with a glass of wine, calling it an important part of the community.  He didn't want Carefree to drive businesses away.

 

 

 

Andrew Gublder is an electrical contractor who did some work at Cellar 13, and he said everything was corrected except the emergency lighting.  The inspector added more items to the list during the final inspection.  Two of these items included moving pre-existing electrical panels, one upstairs and one downstairs.  The clearances appeared satisfactory to Mr. Gublder. 

 

 

 

Jeff Huff, a Realtor in the strip mall where Cellar 13 was located, said that Larry Foppe and Mike Hightower had worked hard during the renovation.  They now own the cigar shop next to the wine bar as well.  He felt it would be beneficial to keep those businesses in Carefree.  They don't want more vacancies.

 

 

 

Larry Foppe, the new owner of the former Cellar 13, now Bodega 13, said Cellar 13 was in business in that location since 2009.  The space contains 1500 square feet, 700 upstairs and 800 downstairs.  The project was upstairs and only involved 200 sq ft.  The initial plan was to replace a wall, building the electrical wires into the new wall, and to extend the bar 4 feet.  The project evolved into their spending tens of thousands of dollars, then being asked to relocate 2 electrical panels.

 

 

 

At the beginning, Mr. Foppe and his partner Mike Hightower had planned to do the work themselves.  They applied for a permit and were told by Mike Tibbetts, the Town of Carefree Building Official, that stamped engineering plans were required prior to the review process, citing ARS 34-144.  Mr. Foppe disagreed.  Mr. Foppe stated that he is a registered engineer in the State of Arizona, and felt that ARS 34-144 had nothing to do with the requirement for stamped plans.  He said  projects were exempt if they were under 3000 sq ft, not continuously occupied, and had no structural spans over 20', criteria his project met.  

 

 

 

Mr. Tibbetts inspected the building both upstairs and downstairs, finding many issues in places that were not part of the project.  Mr. Foppe felt the worst had to do with the electrical code.  He pointed to the Arizona Administrative Code, saying drawings and specs for a new system or for modifications to an existing system were only required for a 600 or more ampere service, and theirs is a 400 amp service.  When he challenged Mr. Tibbetts on this point,  he said Mr. Tibbetts became "unreasonable and uncooperative", and that he was "treated unfairly".  Because Mr. Foppe felt Mr. Tibbetts' actions were "retribution", Gary Neiss and Ms. Price told him that an outside inspector would be hired, but he was upset to see Mr. Tibbetts' signatures and notes on the initial plans submitted in July.  He showed notes made by Mr. Tibbetts, stating the "work is minor in nature and in compliance with IBC section 106.1 and exceptions". 

 

 

 

Several weeks into the project, Mr. Foppe and Mr. Hightower decided that the cooking area needed to be expanded and they also replaced the small hood with a "real" hood.  The plans were reviewed and approved.  But they discovered there was insufficient electrical power for the new cooking equipment, so they needed to run gas into the building.  The drawings were red lined because the pipe was 1" in diameter, rather than  1-1/4".  Mr. Foppe again disagreed, but replaced the pipe. Issues on the hood were cited and corrected, then Mr. Foppe called for a final inspection.  20 new issues were cited, including relocating the 2 electrical panels, and the inspector wanted a fence surrounding the roof mounted equipment for safety.  Mr. Foppe showed a photo of a nearby restaurant with similar roof mounted equipment and no fence.  

 

 

 

Mr. Foppe said Carefree has asked for "stuff we can't do".  He wondered how a 200 sq ft remodel could turn into what it is today.  He again claimed it was "personal payback", and they were now looking at moving to Cave Creek.  He added that the wine bar is a gathering place for locals, and is not for tourists. 

 

 

 

Mike Hightower, the owner of the defunct Cellar 13, is now a partner in Bodega 13.  He said he wanted to see it open, and that the customers feel like family.  When he opened Cellar 13 there were issues, but they worked through them. He asked if there was any way for Carefree to compromise and work with them.  He said they would do what they needed to do, "but don't tell us you need more".  His original drawings for Cellar 13 were not stamped, but he went back and had them done correctly.  He still wants to be here.  He made the Cellar 13 plans work, and he wanted to make this work.

 

https://vimeo.com/user18676056/review/141750234/ceffdabd54

 

 

 

 

The Carefree Building Officer, Mike Tibbetts, was given the opportunity to respond to the criticism, as is allowed by law during Call to the Public.  He said, "Where to begin?"  He explained that ARS 34-144 gives exception to the requirement for stamped plans from a licensed engineer if the building is under 3000 sq ft, so that clause doesn't apply.  It does apply if the occupancy is more than 20.  Cellar 13 had an occupancy of 27, which was being increased by the remodel on the lower floor.  Ms. Price questioned the clause about continuous occupancy, and Mr. Tibbetts replied that even if one employee is present, which is often the case in restaurants with opening, prep work, clean up, and closing, that is considered "occupancy".  The term applies to anyone in the building, not just to customers. 

 

 

 

Mr. Tibbetts called the president of Central Chapter Building, with covers every city in the Valley, and asked his opinion and how ARS 34-144 is handled by other jurisdictions.  13 of 14 cities require a registrant's (engineer's) seal when a project falls under this Statute.  According to the National Electrical Code, a 400 amp service requires a registrant's seal also. Although Councilman Glenn Miller knew the answer, having been an electrical contractor, he asked if the Arizona Administrative Code quoted by Mr. Foppe supersedes the National Electrical Code, so the rest of the Council could hear the answer.  Mr. Tibbetts replied that it does not.  It does not even supersede the Carefree Town Building Codes that were approved by the Mayor and Council, which mirror the National Electrical Code.  These codes are required by the State.  That is what the Carefree Building Department enforces.  

 

 

 

Mr. Tibbetts said he was called by Mike Hightower, who asked him to stop by, take a look, and approve the work, at which point Mr. Tibbetts realized that work was being done without a permit.  In an effort to be business friendly, Mr. Tibbetts did not issue a stop work order, but did ask them to submit plans.  After quite a while, plans were submitted that were not even working plans and contained many flaws.  More detailed plans were submitted after the first set was rejected for review.  

 

 

 

Mr. Tibbetts explained that specific inspections are called for by the owners as a job progresses, for example grease equipment, the hood, electrical, and plumbing work.  These are the stages of inspection and only those items specified are included in the inspection.  On October 1st, a final inspection was requested, which includes the entire building.  The new items were not brought up before because they were not part of the previous inspections.  Unfortunately, the inspector was not able to complete his inspection because he was harassed by Mr. Foppe and threatened with a lawsuit.  At that point the inspector said, "This inspection is done.  We are over.  I'm not going to sit here and be berated."  He wrote up a code section for violations, and was asked, "Where is your code book?"  He said he didn't carry one, and was asked what kind of inspector didn't carry a code book.  Mr. Tibbetts cites violations, and carries the Carefree Code book in his truck so that, if challenged, he can produce the section.  However, Brown and Associates does inspections for 15 jurisdictions and 4 Indian Tribes, each of which operate under slightly different codes. Mr. Tibbetts wrote down the sections of each Bodega 13 violation for the Council to see. 

 

 

 

Mr. Tibbetts asked Mr. Foppe and Mr. Hightower what part of the life safety requirements they wanted the Mayor and Town to waive.  What is not important?  Councilman Gene Orrico asked if there were any life safety factors of concern in the Bodega 13 project.  Mr. Tibbetts replied that there were many.  He said Mr. Foppe claimed to have gotten approval from the Health Department, but it must have been prior to the installation of the hood.  He said he would not get that approval now due to plumbing code and health code violations, such as the floor drain in the bathroom with no backflow preventer.  Perhaps the Health Department inspector didn't see the drain.  Mr. Tibbetts saw it.  Mr. Foppe has failed to provide the documented final approval from either the Health Department or Rural/Metro, which he also claimed to have received.

 

 

 

The electrical panel downstairs that requires relocating is surface mounted on a wall in a "wet" area above a sink that will be used for stacking and washing dishes.  The counter and floor could be wet.  There was not a full kitchen on the lower level when the original plans were approved.  There were no plans or approval for the wash station.  Mr. Miller explained that panels in a wet area must be in a lockable, rain tight enclosure, not in an open residential surface mount. 

 

 

 

The electrical panel upstairs is located behind a hot water heater that had been installed by Mr. Hightower at some point after the issuance of the Certificate of Occupancy for Cellar 13, without a permit or an inspection.  The water heater is in the way of the panel, with no clear working space.  An electrician changing a breaker or pulling a wire faces the hazard of falling into the panel or touching something and being electrocuted.  An electrician fell into a panel with insufficient working space in Desert Hills and was electrocuted.  "There is a reason for the codes."  Mr. Tibbetts said the owners created these issues themselves by performing illegal work without permits and inspections. 

 

 

 

Mayor Les Peterson said it is unsafe to violate building codes and that they would like to see the restaurant open, but within the building codes.  There was a meeting last week attended by John Gunn, who is the building inspector representing Brown & Assoc., Mr. Tibbetts, and the Bodega 13 people.  He asked what happened at that meeting.  Mr. Tibbetts replied that none of the Bodega 13 contractors came, and nothing discussed had been addressed.  They seem to pick and choose what they do and don't do.  Once they brought in the hood and the gas, the scope of work changed from "simple in nature".  These changes were made after getting the initial set of plans approved.  

 

 

 

Marty Holmes, who is remodeling and reopening the Black Mountain Coffee Shop, submitted exemplary plans and in less than a week he obtained phased conditional approval to begin underground work.  If Mr. Foppe and Mr. Hightower had submitted the same quality of plans, many of the code violations would have been addressed and wouldn't be issues now.  They want the Town to look the other way on code violations. The Town is not going to do that.  

 

 

 

Mr. Orrico asked if Bodega 13 had been given a final punch list.  Mr. Tibbetts told him that the inspector had been unable to complete the inspection due to being harassed and berated by Mr. Foppe.  The inspector left, rather than taking more abuse. If they can complete a final inspection, they will provide a final list.  Contractors who had already been paid said Mr. Foppe was directing everything, telling them what and what not to do.  He writes the checks, so they did what they told. 

 

 

 

Mr. Miller stated that contractors won't risk their licenses.  Mr. Tibbetts explained that Dynamic Plumbing pulled his permit because Mr. Foppe was using unlicensed people to do a lot of the work under his permit and license.  Although the Town was trying to help Mr. Foppe get through the process, and didn't make him get another permit, he has fought the Town every step of the way.  Mr. Miller expressed surprise that it was all being done under a plumber's permit.  Mr. Tibbetts said the plumber agreed that the work could be done using his license for the permit on the condition that only licensed contractors were used, and the Town agreed.  The initial project just called for minor electrical, plumbing, and drainage/waste.  It was pretty simple.

 

 

Looking at the picture of the nearby restaurant Mr. Foppe had produced earlier, Mr. Miller pointed out that the rooftop ventilation was close to the exhaust, a violation.  Mr. Tibbetts said that was not a recent picture, and the exhaust had been moved quite a while ago.  Councilman Mike Farrar said he would like to keep Bodega 13 in Carefree if possible but that he didn't want to jeopardize the health and safety of the customers.  Mr. Orrico asked if they had refused a final punch list.  Mr. Tibbetts said he was told that some of the items already listed are "a deal breaker"; they have no more money, and are not going to do them.  Mr. Orrico stressed that the Town can't compromise on life safety.  Mr. Farrar said he and other customers would frequent Bodega 13, making up for the money spent.  Mr. Miller said, "Don't allow one life safety issue not to be up to code." It would expose Bodega 13, Mr. Tibbetts, and the Town to liability.  Mr. Tibbetts assured him, "Oh, we won't."  

 

 

 

Mayor Peterson asked Mr. Neiss to arrange a meeting between Brown & Assoc., Mr. Tibbetts, Mr. Foppe, and Mr. Hightower.  "Let's make this happen, meeting all the safety code requirements."  He would love to see them open in Carefree, but can not jeopardize safety.  Mr. Tibbetts said all of the Bodega 13 contractors need to be there too.  He heard a lot of hearsay tonight.  All of the inspections are in writing and part of the public record.  They are not picking and choosing the codes, and are not dictating anything cosmetic.  All are building safety code requirements.  The Mayor called for everyone to work together.

 

 

 

I said we had installed a solar panel project with 78 panels on a large raised steel shade structure.  We had planned to hire Cave Creek Welding and Bentley Concrete to do what we thought was simple work.  In order to get our permit, we found we were required to submit drawings from an architect, stamped by an engineer.  I groused slightly about the delay and the extra expense, but the engineer had several good suggestions that were incorporated into our structure, producing a better finished product. 

 

 

 

Next, my husband Herbert spoke.  During his medical residency, the head of his department was married to a developer who built a nightclub on one of the docks in Philadelphia.  He and his partner knowingly cut corners.  The dock collapsed after a few years, critically injuring many and killing 2 girls in their early 20's, because the building inspector had been convinced to look the other way.  Herbert said he appreciated the vital importance of the job, done with consistent integrity by Mr. Tibbetts.

 

 

 

Marty Holmes felt that a couple people on the Council wanted to bend over to accommodate Bodega 13.  You don't bend over on building safety and health issues.  People can die.  He is going into the restaurant business because he wanted to save a Carefree icon, the Black Mountain Coffee Shop, which was the first restaurant to open in Carefree.  He is doing it right, and submitted 29 pages of stamped engineered blueprints.  He has been a builder here since the mid 1990s, has a history here, and loves this town.  The Council assured Mr. Holmes that they felt it is vital to enforce the codes.  Mr. Holmes apologized if he misunderstood them. He said Mr. Tibbetts does, "a heck of a job and is very knowledgeable", calling him 110% inspector.  Mr. Holmes backs the Town.  He is hoping to open the Black Mountain Coffee Shop in November.  Many Council members said they looked forward to returning to the Coffee Shop.

 

https://vimeo.com/user18676056/review/141806292/7c0dd5d25a

 

 

 

Lyn Hitchon

 

 

 

Prepared by Carefree Truth

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