2024A-04335-NPC-ROC Notice of Hearing & Packet MAILED.pdf

2024A-04335-NPC-ROC · Registrar of Contractors · 2024-07-17

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Foundation Building Materials, LLC, Case No. 2024-04335 DBA: FBM Sales Docket No. 2024A-04335-NPC-ROC COMPLAINANT, NOTICE OF HEARING ON v. CONTESTED CASE Desert Sand Construction Inc. DBA: Desert Sand Electric License No. ROC 078318,

RESPONDENT.

This Notice of Hearing is issued under A.R.S. § 41-1092.05(D).

HEARING INFORMATION The hearing is set for:

August 23, 2024 1:00 PM Amy Haley 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 13, 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)(10)

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. 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 July 17, 2024.

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

Copy mailed via USPS First Class mail July 17, 2024 to:

Respondent(s) Desert Sand Construction Inc. DBA: Desert Sand Electric PO Box 8187 Cave Creek, AZ 85327 Respondent's Attorney Richard W. Hundley, Esq. 7537 E McDonald Dr Scottsdale, AZ 85250 Complainant(s) Foundation Building Materials, LLC DBA: FBM Sales 3126 N 30th Avenue Phoenix, AZ 85017 Complainant's Attorney James B. Reed, Esq. 1138 N Alma School Rd Ste. 101 Mesa, AZ 85201 Copy sent electronically this same date to: Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar Complainant’s Attorney at email address of record with Registrar

Case No. 2024-04335 /

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

April 16, 2024

Via U.S. Mail and Email

Complainant FBM 3126 N. 30th Avenue Phoenix, AZ 85017

Respondent Desert Sand Construction Inc. PO Box 8187 Cave Creek, AZ 85327-8187

Re: Complaint No. 2024-04335

Dear Complainant and Respondent:

The Registrar received a complaint filed against Desert Sand Construction Inc., for non-payment of materials or services rendered. This complaint is complete and will be substantively reviewed by the Registrar.

Respondent is free to raise any issue or affirmative defense to this complaint by filing a response with the Registrar by April 23, 2024. Please reference the complaint number listed above if you file a response. Respondent may file a response by:

Mail: P.O. Box 18244, Phoenix, Arizona, 85005-8244 In-Person: 1700 W. Washington St., Ste. 105, Phoenix, Arizona, 85007-2812 Email: [email redacted]

The Registrar will not issue a citation before April 23, 2024 and will review Respondent’s response, if one is submitted.

Please be advised that a response to the complaint is not the same as a written answer. If the Registrar issues a citation Respondent must file a written answer to that citation in accordance with A.R.S. § 32-1155.

Sincerely,

/s/ Meridith Bell Meridith Bell Legal Assistant II Legal Department 1700 W, Washington St., Ste. 105 Phoenix, AZ 85007

1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg100 4/21 Non-Payment Complaint Form Departmental Use Only Complaint Number: Mail to: Registrar of Contractors P.O. Box 18243 Phoenix, AZ 85005-8243

Person Filing Complaint (Payee) Business Name Full Name (First Middle Last) ROC License Number(s) (if any) Kristina Kurce Street Address City State Zip Code 3126 N 30th Ave Phoenix Arizona 85017 Phone Number Email Address (602) 272-5427 [email redacted] I consent to receive communications electronically in connection with this case

Name of Attorney (if any)

Attorney’s Street Address City State Zip Code

Attorney’s Phone Number Attorney’s Email Address

Licensee Information (Payer) Name (as shown on contracts, invoices, etc.) ROC License Number(s) Desert Sand Construction Inc ROC 078318 Street Address City State Zip Code PO Box 8187 Cave Creek AZ 85327-8187 Phone Number Email Address

Name of Person(s) Representing License Chantz Tezzurai Stewart;Rodney Thomas Stewarat Complaint Information Principal Amount Due (excluding interest and fees) Contract Date (if applicable) $11,086.00 November 18, 2023 Have you filed a civil complaint? No List all specific invoices which have not been paid. Attach additional pages if necessary. 761044

Certification I certify, upon information and belief, that the above-named licensee has failed to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor. I further certify, upon information and belief, that the above-named licensee has the capacity to pay, or has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased. A.R.S. § 32-1154(A)(10). Printed Name Signature Date Kristina Kurce Declaration & Signature I am the Complainant in this Complaint Form or Complainant’s duly authorized representative. I declare under penalty of perjury that the information contained in this Form is true and correct to the best of my knowledge. I further certify that any documents submitted in support of this complaint are true and correct copies of the originals and are accurate to the best of my knowledge. I will assist in the investigation or in the prosecution of the contractor or other parties, and will, if necessary, attend hearings and testify to facts. Printed Name Signature Date Kristina Kurce Invoice 3126 N 30th Ave Phoenix, Arizona 85017 Invoice # : 761044 Tel: 602-272-5427 Fax: 602-272-5534 Order # : 559209 Date : Nov 18, 2023

Customer: Ship To: Desert Sand Construction, Inc Desert Sand Construction, Inc Email invoices - [email redacted] WC Cave Creek, Arizona 85327 Phoenix, Arizona 85017 Tel: (480) 595-0031 Fax: (480) 595-0216

Account Code : 4715 Quote # : 428629 Terms : Net 30 days Purchase Order # : CLOCKTOWER STE 240 Customer Job # : Shipped Via : WC Salesperson : Greg Weber Contact : Greg Weber Order Name : RESOURCE HEALTHCARE -CLOCK TOWER STE 240

DAVID - 602-725-9790

Unit Extended Ordered Shipped Product Description Price Price 2 SGLJP 2668 4 S GALV 478 20 KD LH (345S; SC103-BL(2); 165.00 330.00 TSTK; TA-1-ZINCROME; Work Order) 1 SGLJP 2668 4 S GALV 478 20 KD RH (345S; SC103-BL(2); 165.00 165.00 TSTK; TA-1-ZINCROME; Work Order) 11 SGLJP 3068 4 S GALV 478 20 KD LH (345S; SC103-BL(2); 155.00 1,705.00 TSTK; TA-1-ZINCROME; Work Order) 6 SGLJP 3068 4 S GALV 478 20 KD RH (345S; SC103-BL(2); 155.00 930.00 TSTK; TA-1-ZINCROME; Work Order) 2 2668 WD PSRO MATCH/EDGE 1 3/4 F APC-2 SPC UNFIN (161; 450.00 900.00 345; LH; Restyle; Timely; U/C) 1 2668 WD PSRO MATCH/EDGE 1 3/4 F APC-2 SPC UNFIN (161; 450.00 450.00 345; Restyle; RH; Timely; U/C) 9 3070 WD PSRO MATCH/EDGE 1 3/4 F APC-2 SPC UNFIN (161; 325.00 2,925.00 345; LH; Timely; U/C) 6 3068 WD PSRO MATCH/EDGE 1 3/4 F APC-2 SPC UNFIN (161; 325.00 1,950.00 345; RH; Timely; U/C) 54 Hinge(s) BB81 4 1/2 X 4 1/2 US26D 8.00 432.00 9 Privacy Set XP20 2 3/4 BS US26D 67.00 603.00 10 Passage Set XP30 2 3/4 BS US26D 62.00 620.00 19 Stop WB26 US32D 4.00 76.00

Shipment Number Shipment Date Note 62095 Nov 18, 2023 DAVID - 602-725-9790 62096 Nov 18, 2023 DAVID - 602-725-9790 Pre-Tax Total : 11,086.00 ARIZONA SALES TAX 8.6% : 0.00 Amount Due : 11,086.00

Printed Apr 15, 2024 9:12 AM Accounts 90 days past due are automatically placed on credit hold.

Statement 3126 N 30th Ave Phoenix, Arizona 85017 Date : Apr 15, 2024 Tel: 602-272-5427 Fax: 602-272-5534

Attn: Accounts Payable Desert Sand Construction, Inc Email invoices - [email redacted] Cave Creek, Arizona 85327

Account Code : 4715 Contact Info : Tel: (480) 595-0031 Fax: (480) 595-0216

Invoice Invoice Invoice Invoice Number Date Customer PO# Customer Job# Total Balance Retainage 761044 Nov 18/23 CLOCKTOWER STE 11,086.00 11,086.00 0.00 240 DAVID - 602-725-9790

Aging 0-30 30-60 60-90 90-120 Over 120 Interest Total Retainage 0.00 0.00 0.00 0.00 11,086.00 0.00 11,086.00 0.00

All customers 90 Days past due are automatically placed on credit hold.

Printed Apr 15, 2024 8:19 AM Page 1 Invoice 3126 N 30th Ave Phoenix, Arizona 85017 Invoice # : 761044 Tel: 602-272-5427 Fax: 602-272-5534 Order # : 559209 Date : Nov 18, 2023