ALJDEC - Licensing
2023A-10914-CHC-ROC · Registrar of Contractors · 2024-03-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Adrian Larson,
COMPLAINANT,
v.
Bunkers Glass Of Phoenix Inc.
ROC License No. 153969,
RESPONDENT.
No. 2023A-10914-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 11, 2024 at 9:00 AM.
APPEARANCES: Adrian Larson (“Complainant”) appeared on his own behalf. David Fagerburg appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Kevin Dooley appeared on behalf of Bunkers Glass of Phoenix Inc. (“Respondent”). Jennifer Larson observed.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
EXHIBITS ADMITTED INTO EVIDENCE: The Notice of Hearing, including the Registrar’s attached agency file, was admitted along with the February 26, 2024, Hearing Order.
_____________________________________________________________________
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 License No. 153969 Specialty Dual CR-5 Glazing contracting license to Respondent. Although the license had been renewed through March 31, 2024, the Registrar revoked the license effective February 20, 2024, as a disciplinary measure resulting from Complaint No. 2023-05261. Gary Alvin Bunker is listed as the Qualifying Party and Officer on the license. Caroline May Bunker is also listed as an Officer on the license. Respondent’s address of record for the license was 8625 N. 27th Ave. Phoenix, Arizona 85051, but changed to 8442 W. Aster Dr. Peoria, Arizona 85381 in April 2023. 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 had been disciplined on one (1) prior occasion, and currently has two (2) open complaints against the license; one of which is presumed to be related to the matter at bar.
On or about September 19, 2023, the Registrar received a narrative complaint from Complainant against Respondent’s License No. 153969 alleging abandonment and poor work of a residential new build project. The Registrar designated it Complaint No. 2023-10914 and assigned to Steve Klein (“Investigator Klein”) for investigation.
On September 19, 2023, Investigator Klein issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on November 16, 2023, at 10:00 a.m. Correspondence was not returned as undeliverable to Respondent.
On November 16, 2023, Investigator Klein inspected the work that had been performed on the project to date. Respondent was not present. Investigator Klein also reviewed the contract-related correspondence between the parties, and took 2 photographs of the project site. When he was finished, Investigator Klein drafted his Inspection Notes. Ultimately, Investigator Klein derived a total of 4 separate and distinct complaint items, all of which he substantiated based on his firsthand observations. Specifically, Investigator Klein determined Respondent’s workmanship on complaint items 1-4 failed to meet the Registrar’s minimum standards and required Respondent to perform corrective and/or completion work to remediate the identified deficiencies.
On November 16, 2023, Investigator Klein issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated most of Complainant’s complaint allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on December 07, 2023, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A) and 32-1154(E). Correspondence was not returned as undeliverable to Respondent.
Having received no correspondence from Respondent regarding its compliance with the Directive, on December 14, 2023, Investigator Klein emailed Complainant to inquire if any corrective work had been performed. On December 15, 2023, Complainant replied that Respondent had performed some corrective work.
On an unknown date, Investigator Klein issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on December 15, 2023, at 3:00 p.m. Correspondence was not returned as undeliverable to Respondent.
On December 15, 2023, Investigator Klein inspected the corrective work that had been performed on the project. Respondent was not present. When he was finished, Investigator Klein drafted his Compliance Jobsite Inspection Notes. Ultimately, Investigator Klein determined that Respondent had not satisfactorily remediated any of the previously substantiated complaint items.
On December 18, 2023, Investigator Klein forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On December 19, 2023, 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 January 03, 2024, 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.
In December 2023, Investigator Klein retired from the Registrar.
On January 03, 2024, the Registrar received Respondent’s timely Answer whereby Mr. Dooley admitted that Respondent had installed the windows and doors on the underlying project, but argued that Respondent was not responsible for the sizes of the materials ordered or the existing openings of the structure. Mr. Dooley also argued that the windows and doors did not function properly because they were dirtied by construction debris and/or because the doors had been installed with hardware that was not from the manufacturer. Mr. Dooley denied any knowledge of materials being incorrectly delivered or otherwise damaged to the project site.
On January 12, 2024, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on March 11, 2024. Per the January 26, 2024, 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)
Sometime in mid-January 2024, Registrar investigator David Fagerburg (“Investigator Fagerburg”) was reassigned Investigator Klein’s remaining caseload, including Complaint No. 2023-10914.
Hearing Evidence
Complainant testified on his own behalf and called Investigator Fagerburg as a witness. Mr. Dooley testified on behalf of Respondent. The substantive evidence of record is as follows:
Complainant owns residential property located at 6121 E. Calle Tuberia Scottsdale, Arizona 85251.
On an unknown date, Complainant entered into a construction agreement with Stewart Builders, ROC License No. 286540, to demolish the existing structure on the property and build a new residence on the remaining foundation. On or about July 16, 2021, Complainant contracted directly with Respondent for the $47,704.62 installation of windows and doors for the newly built residential structure.
On or about October 06, 2021, Complainant paid Respondent $23,852.00 towards the project.
On or about April 20, 2022, Complainant paid Respondent $20,581.83 towards the project.
Work on the project took place sometime between January 15, 2022, and February 20, 2022.
On December 06, 2023, Respondent contacted Complainant to schedule corrective work for the following day, December 07, 2023.
On December 07, 2023, Respondent performed corrective work and advised Complainant that additional time would be necessary in order to complete remediations per the Directive.
At no point in time did Respondent allege a denial of access to the project site to the Registrar during the Directive’s compliance period, or request an extension thereof to the agency.
On February 29, 2024, Investigator Fagerburg telephoned the parties to provide notice of a scheduled prehearing jobsite inspection scheduled for March 07, 2024, at 11:30 a.m. However, at that time, Respondent’s telephone number was disconnected and Respondent was unable to be reached telephonically. Consequently, Investigator Fagerburg issued a Prehearing Jobsite Inspection Notification Letter to Respondent, which was not returned as undeliverable.
On March 07, 2024, Investigator Fagerburg conducted a prehearing jobsite inspection of the project. Based on his firsthand observations and understanding of Investigator Klein’s prior findings, Investigator Fagerburg determined that Respondent had successfully remediated portions of complaint items 1 and 2, and had completely remediated complaint items 3 and 4.
Additional Evidence
On an unknown date, Complainant’s screen doors were installed by another contractor.
Closing Arguments
Respondent declined to provide a closing argument.
In closing, Complainant expressed his frustrations regarding the timeline of events in the underlying matter, and argued that Respondent’s license should be disciplined by the Registrar because it had not “lived up to” its contract with Complainant.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. The matter was properly brought before OAH.
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.
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)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code R4-9-108(a) requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
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) holds, 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 holds that no 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.”
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 clear.
It is clear from the record that the parties had a labor, material, and installation contract for windows and doors that Complaint substantially paid. It is also clear from the record that there were deficiencies in Respondent’s work that required correction, and that Respondent did not fully comply with the Registrar’s Directive, or request an extension thereof.
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 complete Complainant’s project per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, 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 on this project. Respondent failed to address why it waited until the day prior to the expiration of the Directive’s compliance deadline to schedule corrective work. It is further unclear why Respondent did not ask the Registrar for an extension of the Directive’s compliance period, when it informed Complainant on the final day of the Directive that it required additional time to complete the work. No exigent or otherwise mitigating evidence exists in the record in favor of Respondent.
Notably, Respondent’s license revocation did not occur until well after the expiration of the Directive in this matter, so legal prohibition is inapplicable to this matter. Regardless, the parties could have entered into a settlement agreement.
Because Complainant has established Respondent’s violation(s) of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.
Complainant may petition the Registrar’s Recovery Fund for financial recompense in this matter.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, based on the egregiousness of its conduct in this matter, Respondent Bunkers Glass Of Phoenix Inc., ROC License No. 153969, be suspended for two (2) business days.
It is further recommended that the Registrar require Respondent to pay the sum total of $50.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E).
It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar 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, March 13, 2024.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile 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 Bunker, Secretary & Treasurer
8442 W. Aster Dr.
Peoria, AZ 85381
[email redacted]
[email redacted]
Adrian Larson, Complainant
6121 E. Calle Tuberia
Scottsdale, AZ 85251
[email redacted]
By: OAH Staff