ALJDEC - Licensing

2023A-04524-NPC-ROC · Registrar of Contractors · 2024-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Bunkers Glass Of Phoenix Inc,

COMPLAINANT,

Fairway Homes West Inc dba FHW,

License No. ROC 261141,

RESPONDENT.

No. 2023A-04524-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING SESSIONS: November 16, 2023 and April 18, 2024.

APPEARANCES: Kevin Dooley represented Bunkers Glass of Phoenix Inc. Attorney Paul Harter represented Fairway Homes West Inc dba FHW.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: ROC Administrative Record [Notice of Hearing with attachments]; Respondent Exhibits 1 through 7.

_____________________________________________________________________

FINDINGS OF FACT

Fairway Homes West Inc dba FHW (Respondent) is the holder of License No. 261141 issued by the Registrar of Contractors (Registrar or ROC).

On or about April 18, 2023, Bunkers Glass of Phoenix, Inc (Complainant) filed a Non-Payment Complaint Form (Complaint) for 13 different projects against Respondent alleging that Respondent had failed to pay Complainant on each project in various sums.

On April 25, 2023, Complainant provided the Registrar with some additional information and supplemented the filings with several missing documents. Complainant wrote:

Payment schedule is Typically 30 days from invoice date however the contractor started ordering material months in advance without notice to Bunkers Glass. We started asking to receive material payments after 30 days of delivery starting in Oct of 2022 with no response until January 13th 2023. In January Stan Kinnear [a]greed to pay for material and then stopped all communication. I continually had to track Stan down to get him to communicate with me. On February 2nd Stan agreed to pay if we would sign a waiver that Fairways Homes would provide. The waiver was never provided by Fairways Homes and then again communication was stopped by Stan Kinnear. On March 3rd we asked if they would do a joint check to our supplier and Bunkers Glass which they agreed to do then on March 6th again communication was stopped by Fairway Homes. On March 23rd Stan emaild [sic] back to me that [] he has been trying to contact me and they ordered material from another supplier and were not going to pay Bunkers Glass. Three of the thirteen jobs we have delivered and installed the material the other product is sitting in our warehouse. We have asked multiple times for Fairway Homes to make arrangements to get their material and have not responded to the requests.

On May 3, 2023, Respondent filed a response to the Registrar with some explanation, some documents, and a chart of the thirteen complaints. Respondent’s chart indicates Complainant’s alleged non-payments totaling $83,987.31. Further, on the chart, Respondent noted that, as of March 24, 2023, Complainant had been paid for its work on all but three jobs: Borquez (missing 3 windows); Jelen; and, Bruett (only partially installed).

Complainant contracted with Respondent on November 17, 2021.

On these owner-builder residential projects, Respondent offers subcontracts to trades/contractors for which the homeowner will not be undertaking responsibility; the subcontractors are required to maintain certain levels of certain insurance. In the at-issue project contracts, Respondent contracted with Complainant to provide, install, and warranty windows, glass and glass doors.

Respondent’s process was to send a work order to Complainant to request quotes on a project with certain specifications, then Respondent would approve the quote, and, finally, Respondent would e-mail Complainant regarding the scheduling for the project (i.e., a projection as to when Complainant’s work would be required at that project). Respondent’s work order specifies that it is not an authorization to do the work at that time.

At some point, Complainant no longer held the requisite insurance policies and could not continue to perform the installations on Respondent’s projects. However, prior to the insurance circumstances, Complainant had performed work for Respondent at various projects.

COMPLAINT ITEMS

Anderson/Pickard. No Work Order; Complaint alleges Complainant is owed $1,364.24. Invoice A0449906 dated April 18, 2023 for “three glass panels” and install for $1,364.22. Respondent indicates a back charge of $720.00 on April 5, 2023.

Romero. Respondent’s Work Order dated March 21, 2022 for $3,154.64. Complaint alleges Complainant is owed $1,868.64. Two Invoices [both] A0006177 dated March 8, 2022 list various items including a labor and a trip charge and set forth two different amounts.

Borquez. Respondent’s Work Order dated June 9, 2022 for $6,278.00. Complaint alleges Complainant is owed $6,278.00. Invoice A0449902 dated April 18, 2023 lists various items including a labor charge, a trip charge, and the “window package” in the total amount of $6,278.00.

Dye. Respondent’s Work Order dated September 21, 2022 for $16,873.34. Complaint alleges Complainant is owed $13,678.34. Invoice A0449900 dated April 18, 2023 for “Milgard window package” in the amount of $13,678.34.

Ross. Respondent’s Work Order dated October 24, 2022 for $9, 327.00. Complaint alleges Complainant is owed $6,826.71. Invoice A0449901 dated April 18, 2023 for “Milgard window package” in the amount of $6,826.71.

Abdelrasoul. Respondent’s Work Order dated July 18, 2022 for $3,388.00. Complaint alleges Complainant is owed $2,118.00. Invoice A0449904 dated April 18, 2023 for “window package” in the amount of $2,118.00.

Jelen. Respondent’s Work Order dated September 1, 2022 for $13,200.00. Complaint alleges Complainant is owed $7,311.05. Invoice A0449898 dated April 18, 2023 for “Milgard window package,” Labor and Delivery in the amount of $13,200.00. Respondent indicates several back charges: $13,200.00 on February 3, 2023; $1,975.00 on June 5, 2023; $810.00 on June 19, 2023; $641.00 on June 21, 2023; and $1,015.00 on June 21, 2023.

Cooper. Respondent’s Work Order dated July 13, 2022 for $12,855.00. Complaint alleges Complainant is owed $8,854.72. Invoice A0449899 dated April 18, 2023 for “Milgard window package” in the amount of $8,854.72.

Dell Veneri. Respondent’s Work Order dated November 21, 2022 for $3,892.00. Complaint alleges Complainant is owed $2,891.40. Invoice A0449894 dated April 18, 2023 for “Milgard window package” in the amount of $2,891.40.

Mattison. Respondent’s Work Order dated October 25, 2022 for $11,563.00. Complaint alleges Complainant is owed $9,262.37. Invoice A0449896 dated April 18, 2023 for “Milgard window package” in the amount of $9,262.37.

Henry. Respondent’s Work Order dated November 23, 2022 for $6,769.00. Complaint alleges Complainant is owed $4,418.86. Invoice A0449897 dated April 18, 2023 for “Milgard window package” in the amount of $4,418.86.

Cruv. Respondent’s Work Order dated December 12, 2022 for $18,145.00. Complaint alleges Complainant is owed $5,915.00. Invoice A0449895 dated April 18, 2023 for “Milgard window package” in the amount of $5,915.00.

Mackness. Respondent’s Work Order dated September 20, 2022 for $10,432.00. Complaint alleges Complainant is owed $7,311.05. Invoice A0449898 dated April 18, 2023 for “Milgard window package” in the amount of $7,311.05.

__________________

At hearing, Mr. Dooley indicated that he reached out several times to make arrangements for Respondent to receive the ordered materials for various projects but such delivery was not accomplished prior to the end of March 2023. Complainant alleged there was a verbal agreement by Stan Kinnear for Respondent to pay for the ordered materials but that Mr. Kinnear then backed out of the agreement, and that Respondent never made arrangements with the manufacturer regarding the Bunker account being on hold. Complainant argued that the Section 1, Scope, of the parties’ Contract allowed for verbal agreements. Complainant further argued that it could have performed other repair work on the projects, such as the warranty work on installations already completed and, thus, Respondent’s back charges are not appropriate. Mr. Dooley indicated he was never notified of any back charges and he had never seen Respondent’s back charge documents until they were disclosed to him for this case.

Complainant’s position is that Respondent should pay on these thirteen invoices for the ordered materials that Complainant ordered by the scheduled dates for installation at the various projects which were not yet installed and which had been being stored by Complainant until the materials would have been installed.

Respondent’s position is that it cannot pay on these at-issue invoices, and would not pay on any project unless the installation work was completed and the work had been signed off on by Respondent. However, at hearing, and as was set forth on its spreadsheet, Respondent indicated that it had already paid Complainant for its work on all but three of the projects: Borquez (missing 3 windows); Jelen; and, Bruett (only partially installed).

In response to a query by Complainant regarding why Respondent had made payments to him, Mr. Dennis responded that Complainant had invoiced Respondent for those payments.

Additionally, Respondent argued that because Complainant did not complete the projects’ work (i.e., finish the installation of the materials) as Complainant had been contracted to do, Complainant was not entitled to be paid on these at-issue invoices because Respondent had incurred other expenses, and had set forth back charges, for hiring other subcontractors to complete this trade’s work and other corrective work. For many of the “uncompleted” projects and the calculated back charges, Respondent noted that the charges were due to Complainant’s failure to have installed the window screens.

At hearing, Complainant did not dispute Respondent’s testimony that Complainant had been paid for work on all of the Complaint item projects except the mentioned projects of Borquez and Jelen.

NON-COMPLAINT ITEMS

George. Not a Complaint item. No Work Order in the hearing record; unknown project date. Respondent indicates several back charges: $4,392.00 on March 17, 2023; $7,600.00 on May 1, 2023; $810.00 on June 19, 2023; $641.00 on June 21, 2023; and, $900.00 on June 21, 2023.

Bruett. Not a Complaint item. No Work Order in the hearing record; unknown project date. Respondent indicates two back charges in the amounts of $500.00 on March 20, 2023 and $760.00 on June 21, 2023.

Baylor. Not a Complaint item. No Work Order in the hearing record; unknown project date. Respondent indicates two back charges in the amounts of $675.00 on April 10, 2023 and $822.00 on August 21, 2023.

Renniker. Not a Complaint item. No Work Order in the hearing record; unknown project date. Respondent indicates a back charge in the amount of $735.00 on June 21, 2023.

Weinfurtner. Not a Complaint item. No Work Order in the hearing record; unknown project date. Respondent indicates a back charge in the amount of $735.00 on June 21, 2023.

Rensink. Not a Complaint item. No Work Order in the hearing record; unknown project date. Respondent indicates a back charge in the amount of $1,300.00 on June 17, 2023.

Pierson. Not a Complaint item. No Work Order in the hearing record; unknown project date. Respondent indicates a back charge in the amount of $1,480.00 on October 27, 2023.

Sanders. Not a Complaint item. No Work Order in the hearing record; unknown project date. Respondent indicates a back charge in the amount of $685.00 on August 31, 2023.

Hudson. Not a Complaint item. No Work Order in the hearing record; unknown project date. Respondent indicates a back charge in the amount of $7,765.00 on October 27, 2023.

On May 1, 2023, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10).

Respondent filed an Answer on May 16, 2023.

Unresolved by the parties, the matter proceeded to administrative hearing.

CONCLUSIONS OF LAW

The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

[f]ailure by a licensee or agent or official of a licensee to pay monies in excess of $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

Culled for any relevant details, the evidence in the hearing record failed to establish that Respondent owed monies that were not paid “when due.” Absent documentation from either party of the undisputed “payments” Respondent had made to Complainant, and Complainant’s invoices therefor, the hearing record does not demonstrate that any other payments were “due” to Complainant prior to the filing of the Complaint in this matter. The parties’ testimony demonstrated that Complainant performed work, for which it was paid. The hearing record demonstrated that the parties were unable to continue with the relationship due to Complainant’s loss of insurance. It is unfortunate that the parties, which had had a good working relationship, were unable to come to some terms with each other as to Complainant’s completion of “uncompleted” projects.

Based on the foregoing, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant on the April 18, 2023 invoices for materials. Thus, no grounds exist to impose discipline against Respondent’s license

RECOMMENDed order

Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order in this matter, the Registrar dismiss Complainant’s Complaint 2023-04524 against Respondent’s license based on Complainant’s failure to prove a violation of A.R.S. § 32-1154(A)(10). -54864001

001

-137160-45720000

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

Done this day, June 10, 2024.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Registrar of Contractors

Bunkers Glass Of Phoenix Inc.

ATTN: Kevin Dooley

[email redacted]

Fairway Homes West Inc. dba FHW

[email redacted]

By OAH Staff