ALJDEC - Licensing

2023A-09412-CHC-ROC · Registrar of Contractors · 2024-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Marie Herdt ,

COMPLAINANT,

v.

Bunkers Glass of Phoenix Inc.,

ROC License No. 153969,

RESPONDENT.

No. 2023A-09412-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 26, 2024 at 1:00 PM.

APPEARANCES: Marie Herdt (“Complainant”) appeared on her own behalf. Aaron King appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). No appearance(s) by or on behalf of Bunkers Glass of Phoenix Inc. (“Respondent”). Jorge Victoria and Ryan Dennis observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

EXHIBITS ADMITTED INTO EVIDENCE: The Notice of Hearing, including the Registrar’s attached agency file was admitted into the record.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

Pursuant to Arizona Administrative Code (“Ariz. Admin. Code”) R4-9-117, Administrative Notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website. On March 30, 2000, the Registrar issued ROC License No. 153969 Specialty Dual CR-65 Glazing contracting license to Respondent. The license has been renewed through March 31, 2024. Gary Alvin Bunker is listed as the Qualifying Party and Officer on the license. Caroline May Bunker is also listed on the license as an Officer. Respondent’s address of record for the license 8625 N. 27th Ave. Phoenix, Arizona 85051. Respondent has an active $6,750.00 surety bond on the license issued by Contractors Bonding and Insurance Company, effective March 30, 2000. The license has no prior disciplinary history. Currently, however, there are 3 open complaints against the license, one of which is presumed to be related to this matter.

On or about August 15, 2023, the Registrar received a 3-item complaint from Complainant against Respondent’s License No. 153969 alleging abandonment and poor work of their residential window installation project. The Registrar designated it Complaint No. 2023-09412 and assigned to Aaron King (“Investigator King”) for investigation.

On August 25, 2023, Investigator King issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on September 15, 2023, at 10:00 a.m. Correspondence was not returned as undeliverable to Respondent.

On September 15, 2023, Investigator King inspected the work that had been performed on the project to date. Respondent was not present. Investigator King also reviewed the contract-related correspondence between the parties, and took 30 photographs of the project site. When he was finished, Investigator King drafted his Inspection Notes. Ultimately, Investigator King substantiated all 3 of Complainant’s complaint items based on his firsthand observations. Specifically, Investigator King determined the following regarding complaint items 1 and 3:

Compliant Item 1: Confirmed. There are multiple examples in which the windows were shown to be crooked and warped. In the first window shown to me as an example, the window itself is warped so that the gap approximately 1⁄2” that is normally there, is closed so much that a piece of paper cannot fit. There are gaps at the drywall were the window bows away from it. Using a level placed vertically against it, the bottom touches but the top has a gap and is no longer touching the window showing that the convex shape of the window on the 2 foot level is poor. The exterior trim was falling off in multiple windows. Multiple examples of warped and damaged pieces were installed on windows. The Respondent will have to go to all windows and identify the areas that are crooked and correct by the appropriate means.

Compliant Item 2: Confirmed. Several of the windows are difficult to operate and will need to be corrected. Adjustment of doors, windows and weatherstripping [sic]after the first year of occupancy are considered as homeowners’ responsibility however when it is shown that any of the above items have been aggravated by the actions or inaction of the contractor, the contractor should assume responsibility for repair or replacement of these items. As the Respondent has shown to have either aggravated by poor workmanship, inaction for repair or a combination of both, the Respondent will need to correct by the appropriate means.

Compliant Item 3: Confirmed. Both a screen and a window are included as one screen was installed torn, and one window was broken during installation. The Respondent will correct by the appropriate means.

(All emphasis and errors in original).

On September 21, 2023, Investigator King issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated all of Complainant’s complaint allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on October 11, 2023, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 32-1154(A) and 32-1154(E). Correspondence was not returned as undeliverable to Respondent.

On October 13, 2023, Investigator King forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.

On November 17, 2023, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a),, and 32-1154(A)(22). Respondent was given until December 02, 2023, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155. Correspondence was not returned as undeliverable to Respondent.

On December 02, 2023, the Registrar received Respondent’s timely Answer whereby Mr. Dooley offered that Respondent’s work vehicle was “vandalized” and as such, Respondent was not able to transport project materials needed to perform corrective work. Per Respondent, if Investigator King had granted an extension to the Registrar’s Directive the work would have been timely remediated. Respondent also accused Complainant of utilizing another contractor’s services to correct its deficient work.

To corroborate its contentions, Respondent attached a screenshot of an email sent to Investigator King October 10, 2023, in pertinent part, as follows:

Hi Aaron

Our Truck was vandalized and will not be fixed until next week fixed until next week we can not transport the material untethered truck is fixed. I left you a VM as well.

(All errors in original.)

On December 04, 2023, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on January 26, 2024. Per the December 12, 2023, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:

Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)

Charge 2: A.R.S. § 32-1154(A)(22)

Hearing Evidence

Complainant testified on her own behalf and called Investigator King as a witness. The substantive evidence of record is as follows:

Complainant is the Office Manager for Fairway Homes West (“FHW”), a general contractor operating in Washington and Arizona.

On an unknown date Tristan and Lauren Hudson entered into a contract with FHW for the construction of a new residential build at 7704 E. Eleven Mile Corner Rd. Eloy, Arizona 85131.

On October 03, 2022, the parties entered into a $10,803.00 window installation subcontract agreement for the Hudson’s project.

All of Respondent’s work on the project was performed on October 03, 2022.

Complainant paid Respondent in full on the project.

At no point in time did Respondent submit an Ariz. Rev. Stat. § 32-1155(D)(1) request to the Registrar to inspect the complained upon work.

Between September 21, 2023, and October 11, 2023, Respondent did not perform any corrective work on the project.

Respondent’s license was active and in good status during this time.

At no point in time did Respondent allege a denial of access to the project site during the Directive’s compliance period.

Additional Evidence

Investigator King testified that, on October 19, 2023, he was able to confirm with Complainant that no corrective work had been performed by Respondent on the project.

On September 22, 2023, Respondent received an electronic copy of the Directive from Investigator King.

On October 10, 2023, after receiving the only correspondence from Respondent since the Directive was issued, a day before Respondent’s compliance with the Directive was due, Investigator King replied to Respondent minutes later to inquire how long of an extension Respondent was seeking. Investigator King never received a response from Respondent.

Notably, Investigator King opined that it would have been highly unlikely for Respondent to perform all work needed to remediate substantiated complaint items 1-3 sufficient to meet the Registrar’s minimum workmanship standards in one day.

Complainant testified that no efforts have been undertaken to correct Respondent’s deficient work performance, save obtaining bids.

Closing Argument

In closing, Complainant argued that it sought reimbursement of the monies it paid to Respondent on the project, and opined that discipline was warranted against ROC License No. 153969 because Respondent left Complainant in a bad position with its client, the Hudsons, and noted remediations with another contractor would cost more than what Complainant paid Respondent.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.

The Notice of Hearing the Registrar mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter. Because the Registrar mailed all correspondence to Respondent in the same manner and failed to receive any mail returned as undeliverable, Respondent is deemed to have received all correspondence regarding this matter from the Registrar as well.

Complainant bears the burden of proof to establish cause for the Registrar to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Ariz. Rev. Stat. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

Ariz. Rev. Stat. § 32-1154(A)(6) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “the doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured. For the purposes of this paragraph, ‘fraudulent act’ means a material misrepresentation that a licensee makes, that is relied on by another person and that results in damage to that person or that person's property.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.

Ariz. Rev. Stat. § 32-1154(E) provides, in pertinent parts, that the Registrar may “[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty.” It also provides that “[n]o future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.”

Ariz. Rev. Stat. § 32-1156.01(A) provides that an ALJ may “recommend that a licensee provide restitution to any person who is injured or whose property is damaged by an action of the licensee.”

Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”

Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”

The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.

The material facts in the case at bar are not in dispute.

It is undisputed that the parties had a subcontract agreement for window installation that Complainant paid Respondent in full. It is also undisputed that most of the work Respondent performed on the project did not satisfy the minimum standards set for workmanship by the Registrar. It is further undisputed that Respondent failed to comply with the Registrar’s Directive. It is also clear from the record that Respondent directly jeopardized Complainant’s relationship with its client, and the underlying new build, as a result of its conduct. Thus, violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22) have been established by a preponderance of the evidence.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and remediate Complainant’s project. This is an affirmative defense that Respondent bears the burden to establish. Because Respondent failed to appear and offer any evidence, Respondent did not sustain its burden. There is no evidence in the record that excuses or otherwise justifies Respondent’s inaction and/or lack of performance/competence on this project. Respondent’s eleventh hour Directive extension request was both untimely and uncorroborated. Notably, Respondent’s failure to appear is a factor in aggravation as it evinces Respondent’s unwillingness to submit to regulation by the Registrar.

Because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22), Complainant has also established cause for the Registrar to discipline ROC License No. 153969.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent, Bunkers Glass Of Phoenix Inc., ROC License No. 153969, be suspended two (2) days.

IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum total of $10,803.00 (ten thousand eight hundred three dollars) to Complainant in restitution.

IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the ordered restitution no later than nine (9) months following the effective date of the Registrar’s Order, the Registrar shall suspend Respondent’s license until such time Respondent tenders the Registrar with sufficient proof of payment to Complainant.

IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum total of $100.00 (one hundred dollars) in certified funds as a civil penalty.

IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) days following the effective date of the Registrar’s Order, the Registrar shall revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

NOTICE

Pursuant to Ariz. Rev. Stat. § 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, January 29, 2024.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

c/o Legal Department

Registrar of Contractors

1700 W. Washington St., Ste. 105

Phoenix, AZ 85007

[email redacted]

Bunkers Glass of Phoenix Inc. Respondent

c/o Kevin Dooley, Agent

8625 N. 27th Ave.

Phoenix, AZ 85051

[email redacted]

[email redacted]

Marie Herdt, Complainant

ICO Fairway Homes West

2720 S. J St.

Tacoma, WA 98409

[email redacted]

By: OAH Staff