2024A-07801-NPC-ROC Notice of Hearing & Packet MAILED 2024-07081.pdf
2024A-07801-NPC-ROC · Registrar of Contractors · 2024-09-09
REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA
Sierra Pacific Windows Inc., Case No. 2024-07801
COMPLAINANT, Docket No. 2024A-07801-NPC-ROC
v. NOTICE OF HEARING ON CONTESTED CASE R D Enterprises LLC License No. ROC 251644,
RESPONDENT.
This Notice of Hearing is issued under A.R.S. § 41-1092.05(D).
HEARING INFORMATION The hearing is set for: October 10, 2024 3:00 PM Samuel Fox 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 August 20, 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 September 9, 2024.
By: /s/ Erika Hoskin Erika Hoskin Legal Secretary Legal Department Arizona Registrar of Contractors
Copy mailed via USPS First Class mail September 9, 2024 to:
Respondent(s) R D Enterprises LLC 2451 E Desert Ln Gilbert, AZ 85234
Respondent's Attorney Teresa H. Foster, Esq. 6245 N 24th Pkwy Ste. 100 Phoenix, AZ 85016 Complainant(s) Sierra Pacific Windows Inc. 1650 E Riverview Dr. Phoenix, AZ 85034
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
Case No. 2024-07801 /
Hearing Packet FAQ What is the The Hearing Packet is a packet of certain documents collected or Hearing Packet? issued by the Registrar over the course of its investigation. Who gets the The Hearing Packet is assembled and distributed to all parties and Hearing Packet? to the Office of Administrative Hearings (“OAH”) prior to an administrative hearing. What types of The Registrar prepares a Hearing Packet for Complainant-Handled cases does the Cases and No-Pay Cases. Note: If the Docket Number on the Registrar prepare a Notice of Hearing contains a “CHC” or “NPC”, your case is a Hearing Packet for? Complainant-Handled Case or a No-Pay Case. What is in the The Hearing Packet contains essential case-specific documents and Hearing Packet? at a minimum will include the following documents: ● Original complaint; ● 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 If there is any evidence you submitted to the Registrar that are not documents missing included in the Hearing Packet it is your responsibility to introduce from the Hearing that evidence at the administrative hearing. Note: The Packet? 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
How do I disclose You must properly disclose any and all documents and witnesses evidence I intend to you intend to use at your hearing according to the Registrar’s use at a Hearing? 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 If you previously submitted documents to the Registrar and need a documents I copy of these documents, please contact the Registrar’s Legal previously submitted Department or submit a public records request at to the Registrar? 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
July 11, 2024
Via U.S. Mail and Email
Complainant Sierra Pacific Windows Inc. 1650 E. Riverview Dr. Phoenix, AZ 85034
Respondent R D Enterprises LLC 2451 E .Desert Ln. Gilbert, AZ 85234
Re: Complaint No. 2024-07801
Dear Complainant and Respondent:
The Registrar received a complaint filed against R D Enterprises LLC 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 July 18, 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 July 18, 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 Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg100 4/21 No-Pay Complaint Intake 07/05/2024 2024-07801 No-Pay Complaint Intake 07/05/2024 2024-07801 No-Pay Complaint Intake 07/05/2024 2024-07801 No-Pay Complaint Intake 07/05/2024 2024-07801 No-Pay Complaint Intake 07/05/2024 2024-07801 No-Pay Complaint Intake 07/05/2024 2024-07801 No-Pay Complaint Intake 07/05/2024 2024-07801 No-Pay Complaint Intake 07/05/2024 2024-07801 REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA
Case No. 2024-07801 Sierra Pacific Windows Inc.,
COMPLAINANT, v. CITATION R D Enterprises LLC, License No. ROC 251644,
RESPONDENT.
The Registrar issues this Citation to R D Enterprises LLC (“Respondent”) under A.R.S. § 32-1155(A). If Respondent fails to answer this Citation by September 4, 2024, then under A.R.S. § 32-1155(C), Respondent’s failure to answer may be deemed an admission of the act or acts charged in the underlying complaint, and the Registrar may then suspend or revoke Respondent’s license(s). THE WRITTEN COMPLAINT On July 5, 2024, Sierra Pacific Windows Inc., (“Complainant”) filed a written complaint with the Registrar. A copy of that Complaint is attached to this Citation. A FORMAL STATEMENT OF THE CHARGES AGAINST RESPONDENT The Registrar investigated this matter and finds cause to charge Respondent with violation(s) of Title 32, Chapter 10 of the Arizona Revised Statutes. Respondent is charged with violating: Charge: 1 A.R.S. § 32-1154 (A)(10) Failure 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
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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 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. If the matter proceeds to a hearing and the administrative law judge determines that any of the charges listed above are supported by a preponderance of the evidence, then Respondent’s license(s) may be subject to suspension or revocation, and Respondent may be subject to other penalties provided by law, including civil penalties under A.R.S. §§ 32-1154(E) and (F). FILING A WRITTEN ANSWER Respondent must appear by filing with the Registrar a written answer to the citation and complaint showing cause, if any, why Respondent’s license(s) should not be suspended or revoked. A.R.S. § 32-1155(A). Respondent’s written answer should contain the heading “Written Answer to Citation and Complaint” and should include the case number, which is Case No. 2024-07801. How to File a Written Answer: Respondent’s written answer may be submitted in the following ways: In-Person: 1700 W. Washington St., Ste. 105, Phoenix, Arizona, 85007-2812 Mail: P.O. Box 18244, Phoenix, Arizona, 85005-8244 Email: [email redacted] The Registrar’s normal office hours are 8:00 a.m. to 5:00 p.m., Monday through Friday. If Respondent submits a written answer by mail, it is not filed with the Registrar until the Registrar actually receives it. Deadline for Filing a Written Answer: Respondent must file a written answer with the Registrar no later than September 4, 2024. This deadline is calculated under A.R.S. §§ 32-1155(A) and (B), which provides a deadline ten days after service of the Citation. Service of the Citation and Complaint is complete five days after the Registrar mails a copy of the Citation and Complaint to
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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 Respondent’s latest address of record in the Registrar’s office. Consequences for Failing to File a Written Answer: If Respondent fails to answer, Respondent’s failure may be deemed an admission of the act or acts charged in the written complaint. A.R.S. § 32-1155(C). The Registrar may then suspend or revoke Respondent’s license(s). THE ADMINISTRATIVE HEARING If Respondent files a timely written answer contesting any charges in the Complaint, then the Registrar will request the Office of Administrative Hearings set a date for an administrative hearing and will notify all the parties at least 30 days before that hearing. A.R.S. § 41-1092.05(D). RESPONDENT’S RIGHT TO REQUEST AN INFORMAL SETTLEMENT CONFERENCE Under A.R.S. § 41-1092.06, if Respondent submits a request to the Registrar for an informal settlement conference, the Registrar must hold a conference within 15 days after receiving the request. Respondent’s request for an informal settlement conference must be in writing and must be filed no later than 20 days before the administrative hearing. A.R.S. § 41- 1092.06(A).
The Registrar will not close or settle any case without both parties’ appearance at the Settlement Conference. The parties participating in the settlement conference must have the authority to settle the case and must waive their right to object to the participation of the Registrar’s settlement conference representative in the final administrative decision. A.R.S. § 41-1092.06(B). Any statements, either written or oral, made by the parties at the conference, including a written document, created or expressed solely for the purpose of settlement negotiations, are inadmissible in the administrative hearing. A.R.S. § 41-1092.06(B).
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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 RESPONDENT’S PRIOR RECORD Under A.A.C. R4-9-117, in determining the appropriate discipline, the administrative law judge and the Registrar may consider not only facts in the current case, but also facts in prior cases and any documents regarding Respondent on file with the Registrar. Respondent’s prior disciplinary record and current license(s) status may be considered as a mitigating or aggravating factor in determining the appropriate discipline. EVIDENTIARY DISCLAIMER By issuing this Citation, the Registrar is directing Respondent to file a written answer to the Citation and Complaint, showing cause, if any, why Respondent’s license(s) should not be suspended or revoked. A.R.S. § 32-1155(A). This Citation does not constitute proof that any charge or allegation in Complainant’s written complaint is in fact true. This Citation does not constitute proof that Respondent violated any statutory provision or rule adopted by the Registrar. Dated August 20, 2024. By: /s/ Margaret Lindsey Margaret Lindsey Assistant General Counsel Legal Department Arizona Registrar of Contractors COPY of the foregoing mailed by Certified Mail, Return Receipt Requested, August 20, 2024 to: Respondent Certified Mail No: [number redacted] R D Enterprises LLC 2451 E. Desert Ln. Gilbert, AZ 85234 Copy mailed by USPS First Class mail this same date to:
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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 R D Enterprises LLC 2451 E. Desert Ln. Gilbert, AZ 85234 R D Enterprise LLC 2431 E. Desert Lane Gilbert, AZ 85234
Complainant Sierra Pacific Windows Inc. 1650 E. Riverview Dr. Phoenix, AZ 85034
Copy sent electronically this same date to:
Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar
Case No. 2024-07801 /
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1700 W. Washington Street, Suite 105 · Phoenix AZ 85007-2812 602.542.1525 · Toll Free 877.692.9762 · roc.az.gov Lg101 8/21 No-Pay Complaint Intake 07/05/2024 2024-07801 No-Pay Complaint Intake 07/05/2024 2024-07801 No-Pay Complaint Intake 07/05/2024 2024-07801 No-Pay Complaint Intake 07/05/2024 2024-07801 No-Pay Complaint Intake 07/05/2024 2024-07801 No-Pay Complaint Intake 07/05/2024 2024-07801 No-Pay Complaint Intake 07/05/2024 2024-07801 No-Pay Complaint Intake 07/05/2024 2024-07801 RECEIVED çècèdf_ÿijiçÿém êhghRÿ[uÿaPVr[QgÿmgVpÿWÿMgTRÿë[YÿdedfWeìçeiÿWÿíRîORThÿu[PÿX[ZO\RQhTÿïðÿëðNÿíñéòÿNðÿNtóêÿ ñmaózY 20240809 LEGAL
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BRIER & HUBBARD, P.L.C. 6245 North 24th Parkway, Suite 100 Phoenix, Arizona 85016-2029 Telephone (602) 515-0181 Teresa H. Foster, Of Counsel (010877) For Court Filings/Pleadings: [email redacted] Attorneys for Respondent
ARIZONA REGISTRAR OF CONTRACTORS
Sierra Pacific Windows Inc., Case No. 2024-07801 Complainant, v. WRITTEN ANSWER TO CITATION AND COMPLAINT RD ENTERPRISES LLC, License No. ROC 251644 Respondent.
Respondent denies the charges. Respondent has not violated A.R.S. § 33-
1154(A)(10) because the licensee currently lacks the capacity to pay and has not
received sufficient monies as payment for the particular construction work project for
which the services or materials were rendered.
The Complainant sold windows that were installed in the Wilcox home located at
8901 North Martingale, Paradise Valley, AZ. Wilcox has not paid the Respondent for
the construction work and currently owe Respondent in excess of $370,000. See
correspondence to Wilcox attorney dated June 30, 2024, attached as Ex 1.
The Respondent does not currently have any open construction projects and its
only assets are accounts receivable that it is still trying to collect. When Wilcox and Received Legal 9/04/2024
Respondent reach an agreement regarding the amount that Wilcox will pay, all
subcontractors will be paid (in return for lien releases).
Respondent’s license should not be suspended or revoked under A.R.S. § 32-
1155(A) because there is no violation of A.R.S. § 32-1154(A)(10).
DATED: September 4, 2024.
BRIER & HUBBARD, P.L.C.
/s/ Teresa H. Foster Teresa H. Foster, Of Counsel Attorneys for Appellant FOREGOING emailed to the Arizona Registrar of Contractors [email redacted] this 4th day of September, 2024, and a copy emailed same date to:
Sierra Pacific Windows Inc. 1650 E. Riverview Dr. Phoenix, AZ 85034 [email redacted] Complainant
/s/ Lori Daily
Received Legal 9/04/2024 Ex 1
BRIER & HUBBARD, P.L.C. 6245 NORTH 24TH PARKWAY, SUITE 100 PHOENIX, ARIZONA 85016-2029
Teresa H. Foster Of Counsel Direct Phone: (602) 515-0154 E-Mail: [email redacted]
June 3, 2024
VIA EMAIL ONLY [email redacted]
Wm. Christopher Penwell Siegel Brill PA 100 Washington Ave S., Suite 1300 Minneapolis, MN 55401
Re: Randy Wilcox RULE 408, Rules of Evidence Communication
Dear Mr. Penwell:
As you know, our law firm represents RD Enterprises LLC (“RD”). I am writing in response to your correspondence dated May 13, 2024. First, we do need to address the amounts that are due and currently owed. The documents listed below are provided in the dropbox link.
https://www.dropbox.com/scl/fo/eyts237duea249x787913/ADBX0X4FV9oe- HmQQ2-miZo?rlkey=9evi6l4w9tb4yi15ioe4kzw44&st=v76ksngy&dl=0:
1. Wilcox Billing Summary 2. Invoice no. 3257 3. Invoice no. 3249A 4. Invoice no. 3249B 5. Wilcox Cost Breakdown dated May 31, 2024 6. Comments to Wilcox Punch List dated March 5, 2024 7. Comments to Wilcox Punch List dated May 4, 2024
AMOUNTS OWED
Invoice no. 3257 in the amount of $96,751.91 is the current progress billing for amounts incurred since Invoice no. 3249. This is not a final billing because RD is still waiting to receive final bills from some of the subcontractors. Pursuant to Section VII of Received Legal 9/04/2024 BRIER & HUBBARD, P.L.C. June 3, 2024 Page 2
the Contract dated November 24, 2021, Wilcox is required to make regular payments to RD as requested by RD. This amount is currently due and payable and if not paid within ten (10) days, this will accrue at the rate 18% per annum, pursuant to Section VII of the Contract.
Invoice no. 3249 was issued on February 23, 2024 in the amount of $266,783.23. This amount was due on or before March 4, 2024. Wilcox has refused to pay this amount due to alleged “punch list” items. As you know, the Contract does not allow withholding of payment. The Contract requires Wilcox to pay the undisputed amounts, and to avoid interest charges Wilcox can deposit the disputed amounts into escrow. The current interest owed on this invoice is $10,405.94. It is calculated from the invoice amount, less the $27,000 charges for plumbing (discussed below).
The Cost Breakdown has been updated through May 31, 2024, and does not reflect the credits (discussed below).
The Wilcox Billing Summary sets forth the itemizes the credits that RD is willing to provide in return for payment of $373,941.08, the net amount owed, within ten (10) days. This includes matters that the Wilcox paid directly and other items agreed to. It also includes credits for the remaining four items on the punch list.
Under Section XI of the Contract, Wilcox were not entitled to occupancy until after payment was made for work completed (subject to depositing any disputed amounts in escrow). This is consistent with Arizona law that only allows an owner to withhold an amount that is sufficient to pay the direct costs and expenses an owner reasonably expects to incur from loss for which the contractor is responsible.
NO DELAYS CAUSED BY RD
RD has not been responsible for any delays. Post pandemic, the entire construction industry has faced significant material and labor shortages, which have persisted and even worsened in some areas. Construction job openings are the highest in 20+ years and material delays have doubled. Here are key factors contributing to these shortages:
Pandemic Disruptions: COVID-19 caused widespread project delays, material shortages and site closures, leading to uncertainty and job losses. Many workers left the industry or moved to different sectors. Received Legal 9/04/2024 BRIER & HUBBARD, P.L.C. June 3, 2024 Page 3
Increased Demand: The post-pandemic recovery has led to a boom in construction projects, particularly in residential construction, which has increased demand for labor and materials.
These factors have combined to create a challenging environment for the construction industry, impacting project timelines, costs, and overall productivity.
Despite these difficulties, RD managed to keep their projects timelines lower than the overall industry average.
In response to your comment about the lack of supervision on this project, please note that Mike Karpinski was the initial supervisor and was onsite every day. Jake Bowman took over supervision from the frame inspection stage (approximately August 2023) onward and has been present on the project daily. While supervisors are not present at the project all day (and do not need to be), they still oversee the project on a daily basis. As explained to Wilcox during contract negotiations, RD’s superintendents manage three projects concurrently, along with attending to various warranty requests. Wilcox are causing the current delays. On May 9, 2024, Randy Wilcox sent Ron Barney and email indicating that he was leaving for Minnesota until the end of September (4+ months), does not want anyone in the home while he is gone and that the punch list items “that are left to finish will have to wait until the end of September.” That is fine, but Wilcox’s decision to delay the punch list by 4+ months does not allow him to delay payment to RD. Several trades were working on the Wilcox home but stopped work in light of your correspondence dated May 13, 2024.
PUNCH LIST
Your correspondence includes a punch list as of 05-04-2024. That is not the current punch list. The Comments to Wilcox Punch List dated May 4, 2024 contains responses to each item on Wilcox 05-04-2024 list.
Wilcox provided RD with multiple punch lists. On January 18, 2024 Wilcox provided RD with a punch list. RD had 60 days to complete those items, pursuant to Section XI of the Contract. On March 5, 2024, Wilcox provided RD with a new punch list, restarting the 60 days on those new items. That is the list that RD has worked from. See Comments to Wilcox Punch List dated March 5, 2024. RD (Ron Barney) and another contractor Lonny met with Wilcox on March 5, 2024 and discussed every item on the list to help get the Wilcox home complete.
Wilcox would often send out an updated punch list or “schedule” as to what he wanted done, and each time he would add new items. When the items on the March 5, Received Legal 9/04/2024 BRIER & HUBBARD, P.L.C. June 3, 2024 Page 4
2024 list were substantially completed, Wilcox provided a new punch list on April 5, 2024 and again on May 4, 2024 (both with more new items). The scratches on number 4 in the May 4, 2024 list is a new item. RD already repaired the scratches on two prior occasions. Wilcox have been residing in the home and have had a number of subcontractors in and out of their home. Any repairs to the new scratches on the floor should be performed after the work is complete on the home. The other items on these new lists have either been completed or Randy Wilcox told RD that he would handle these matters directly (plaster, electrical and paint) or are change orders from the approved plans.
The attached Comments to Wilcox Punch List dated March 5, 2024 includes the ever-changing punch list from Wilcox and identifies the items that have been “done” in red. Randy Wilcox asked to work directly with the subcontractors for paint, plaster and electrical, so those items are not outstanding on the punch list. There are four items that RD is willing to provide a credit in return for a global resolution. See Wilcox Billing Summary.
PROPOSED RESOLUTION.
It is the Wilcox, not RD, that are in breach of the Contract for moving into the home prematurely and for not paying for the undisputed amount owed (and depositing any disputed amounts in escrow). RD completed the prior punch lists and had 60 days from the new May 4, 2024 punch list to complete those items. Your May 13, 2024 correspondence was premature. RD disputes that Wilcox are entitled to retain another contractor to complete the punch list items, but in the spirit of settlement, RD has proposed the credits set forth on the Wilcox Billing Summary to resolve all outstanding issues (except the final bills from subcontractors and any warranty work) in return for Wilcox paying $373,941.08 to satisfy the amounts owed on the two outstanding invoices (less the credits given). In the near future, we will provide you with the final invoice (which will include the pavers and possibly other charges from subcontractors). Please contact me if you have any questions. Do not contact RD directly.
Sincerely,
/s/ Teresa H. Foster
Teresa H. Foster Of Counsel grcrGFCÿ++KGFÿZN DI0I.ÿ@XÿZ=7R@Q0ÿN075ÿUÿD7.===0ÿM0<7X7<ÿB7Q6@>/CÿiQ<?ÿS?ÿ[_ÿhQI.=E=7/./ÿ^^VKÿV0/.ÿd@?ÿGHGFUHLReceived fH+Legal 9/04/2024
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^@=7ÿ_0758 ^.105ÿZ//7/I0QI `=7.=ÿaÿYT::0=6ÿM?^?V? bGFcÿd?ÿGFI;ÿM0=]>08CÿDT7I.ÿ+HH M;@.Q7eCÿZ=7R@Q0ÿfcH+b O.5.E;@Q.KÿbHGUcGGUJgFH W0eKÿbHGUcGGUJgFc hUN075Kÿ5607589:;<=.50>?<@- UUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUUU O;7/ÿ.U-075ÿ-.//01.ÿ<@QI07Q/ÿ<@QX76.QI705CÿE=7S75.1.6ÿ7QX@=-0I7@Qÿ7QI.Q6.6ÿ/@5.58ÿX@=ÿI;. 066=.//..?ÿM5.0/.ÿ6@ÿQ@Iÿ=.06Cÿ<@E8Cÿ@=ÿ67//.-7Q0I.ÿ7IÿTQ5.//ÿ8@Tÿ0=.ÿI;.ÿ066=.//..?ÿiXÿ8@Tÿ;0S. =.<.7S.6ÿ7Iÿ7Qÿ.==@=CÿE5.0/.ÿ<055ÿT/ÿj<@55.<Ikÿ0IÿjbHGkÿc+cUH+f+ÿ0Q6ÿ0/]ÿI@ÿ/E.0]ÿ>7I;ÿI;.ÿ-.//01. /.Q6.=? Z5/@Cÿ>.ÿ>@T56ÿ0EE=.<70I.ÿ8@T=ÿX@=>0=67Q1ÿI;.ÿ-.//01.ÿ:0<]ÿI@ÿT/ÿ0Q6ÿ6.5.I7Q1ÿ7IÿX=@-ÿ8@T= /8/I.-?ÿO;0Q]ÿ8@T? O[hZDl[mÿ_hMZ[ONhdOÿVi[Vl^Z[ÿGJHÿ_iDV^ZiNh[KÿO@ÿ.Q/T=.ÿ<@-E570Q<.ÿ>7I;ÿ<.=I07Q l?D?ÿO=.0/T=8ÿ=.1T50I7@Q/Cÿ>.ÿ7QX@=-ÿ8@TÿI;0ICÿTQ5.//ÿ.eE=.//58ÿ/I0I.6ÿ@I;.=>7/.Cÿ0Q8ÿl?D?ÿX.6.=05 I0eÿ06S7<.ÿ<@QI07Q.6ÿ7QÿI;7/ÿ.U-075Cÿ7Q<5T67Q1ÿ0Q8ÿ0II0<;-.QI/Cÿ7/ÿQ@Iÿ7QI.Q6.6ÿ@=ÿ>=7II.QÿI@ÿ:.ÿT/.6C 0Q6ÿ<0QQ@Iÿ:.ÿT/.6Cÿ:8ÿ0Q8ÿE.=/@QÿX@=ÿI;.ÿET=E@/.ÿ@Xÿ0S@767Q1ÿ0Q8ÿE.Q05I7./ÿI;0Iÿ-08ÿ:.ÿ7-E@/.6 :8ÿI;.ÿiQI.=Q05ÿ[.S.QT.ÿD.=S7<.?ÿjO;.ÿX@=.1@7Q1ÿ/I0I.-.QIÿ7/ÿ-06.ÿ7Qÿ0<<@=60Q<.ÿ>7I;ÿV7=<T50= GJHCÿJ+ÿV?W?[?ÿM0=Iÿ+H?k %&%'ÿ&nÿ&'ÿ012345ÿ3oÿ p! +gGq
;IIE/Krr-075?1@@15.?<@-r-075r:rZh@[s[OtbVZdt@JduXXZMv=T<M5MQJVG@YH+08`/GL`]q^h_NtOwrTrHrx7]ycf+<cJ<Xc<aS7.>yEIa/.0=<;y055aE.=-I;7z +r+ Mediation Notice
Mediation Services Mediation services are available to the parties. What is Mediation? Mediation is a method of resolving disputes where the parties can end conflict without the expense and time associated with the full administrative process. Who Participates in During mediation, a mediator will attempt to help the Mediation? parties find an optimal solution to the conflict. Both parties must agree to participate in mediation, and both parties must bring a representative to mediation that has full authority to settle the entire matter. Mediation Is Not Neither the Registrar nor the Office of Administrative Mandatory Hearings will penalize a party for not agreeing to mediation. Where do the Parties The parties will meet at the Office of Administrative Meet for Mediation? Hearings to participate in mediation.
The Office of Administrative Hearings is located at 1400 West Washington, Suite 101, Phoenix, Arizona 85007. When does Mediation can occur after the Registrar issues a citation, but Mediation Occur? before the administrative hearing. Why Should Parties Mediation can be an alternative to the full administrative Consider Mediation? process. Mediation is beneficial because it is (1) time- efficient, (2) cost-effective, (3) confidential, and (4) capable of providing flexible solutions to complex problems. How to Request If the parties wish to mediate this case, they must file a Joint Mediation Request for Mediation with the Office of Administrative Hearings. A Joint Request for Mediation is included with this Mediation Notice. REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA _________________________ Case No. _______________ COMPLAINANT,
v. JOINT REQUEST FOR MEDIATION _________________________ RESPONDENT.
REQUEST
The parties jointly request that this matter be referred to mediation in the Office of Administrative Hearings (OAH). ☐ This matter is set for hearing on __________________(date). ☐ This matter is not currently set for hearing. MEDIATION AGREEMENT By requesting this mediation and signing below, the parties understand, represent, and agree: 1. The parties are prepared to commence mediation and will be ready for mediation on _____________________(date); 2. The parties will participate in the mediation process in good faith; 3. This request for mediation is not intended to hinder or delay administrative proceedings; 4. No party will contend that the mediation limits the power of OAH and its administrative law judges to conduct an administrative hearing and issue decisions under A.R.S. §§ 41-1092 – 1092.12; 5. The parties will be courteous and respectful throughout the mediation process to all participants; 6. The mediation is completely voluntary and the principal purpose is to allow the parties a full and fair opportunity to discuss settlement; of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 7. The mediator may conduct joint and separate meetings with the parties and may suggest resolutions to the parties’ dispute, but the mediator has no authority to impose a settlement upon the parties; 8. The mediation process is confidential. Communications made, material created for or used during, and acts occurring during mediation are confidential and may not be discovered or admitted into evidence in any proceeding except as provided by A.R.S. § 12-2238; 9. The mediator is not subject to service of process or a subpoena to produce evidence or to testify regarding any evidence or occurrence relating to the mediation except as provided in A.R.S. § 12-2238(C); 10. Neither the mediator, nor the Registrar of Contractors, nor the Office of Administrative Hearings is subject to civil liability for any act or omission in connection with any mediation service or activity except for acts involving
intentional misconduct or reckless disregard of a substantial risk of injury to the rights of others; 11. Throughout the mediation process, each party must have a representative present who will have full settlement authority to settle all claims at issue in the administrative
proceeding. 12. The mediation process will terminate when: a. The parties reach settlement; b. The mediator determines that further efforts at mediation are no longer likely
to achieve a settlement; or c. One of the parties withdraws from mediation. _____________________________________ _______________________ Complainant (or representative) Date
_____________________________________ _______________________ Respondent (or representative) Date
of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 PREHEARING DISCLOSURE STATEMENT INSTRUCTIONS ***DO NOT SUBMIT THESE INSTRUCTIONS WITH THE PREHEARING DISCLOSURE FORM***
ADMINISTRATIVE RULES A copy of the Arizona Administrative Code’s Rules for the Registrar of Contractors can be located on the Registrar’s Website.
PREHEARING DISCLOSURE REQUIREMENT Under A.A.C. R4-9-118(A), before a hearing, the parties must prepare a disclosure statement. The disclosure statement must contain: • A list of all the witnesses the party will call to testify, including the witnesses’ contact information and a brief description of the subject matter of the witnesses’ expected testimony; and • A list of all the exhibits that the party will use at the hearing.
FILE PREHEARING DISCLOSURE STATEMENTS • The Prehearing Disclosure Statements and Exhibits may be submitted to the Arizona Office of Administrative Hearings using any of the following: • Electronically: https://portal.azoah.com/submission/ • In-Person or by Mail: 1740 West Adams Street, Lower Level, Phoenix, Arizona 85007
EXCHANGING DISCLOSURE STATEMENTS AND EXHIBITS Under A.A.C. R4-9-118(B) (effective November 5, 2017), a party to the hearing must serve on every other party and file with the Office of Administrative Hearings a copy of: • The disclosure statement; and, • Any exhibit that the party will use at the hearing. Service: The disclosure statement and exhibits must be served on all parties in accordance with Arizona Administrative Code R2-19-108 Filing Documents. Under A.A.C. R2-19-108, service is completed by: • Personal delivery; • 1st class, certified or express mail; or • Facsimile. Timing: The disclosure statement and the exhibits must be served and filed not less than seven calendar days before the date of the hearing. Under A.A.C. R2-19-108, a document is served on a party: • On the date it is personally served; • Five days after it is mailed by express or 1st class mail; • On the date of the return receipt if it is mailed by certified mail; or • On the date indicated on the facsimile transmission.
CONSEQUENCES FOR FAILING TO DISCLOSE Under A.A.C. R4-9-108(C), if a witness or an exhibit is not timely disclosed as required the rules, and good cause for the failure to disclose is not shown, then the administrative law judge may: • Order that certain witnesses or exhibits not be used at the hearing; • Order that a particular fact is or is not established for the record; or, • Order that a charge, a defense, a claim, or some portion thereof, be dismissed.
Form RC-L-800A Prehearing Disclosure Statement Rev. 10/08/2019 Instructions Form PREHEARING DISCLOSURE STATEMENT FORM RC-L-800A
PART 1: WITNESS LIST DOCKET NO. Under A.A.C. R4-9-118(A), before a hearing, a party must prepare a disclosure statement containing a list of all the witnesses the party will call to testify, including the witnesses’ contact information and a brief description of the subject matter of the witnesses’ expected testimony. If you need additional space to list all witnesses, complete and attach additional Witness Lists. Example 1. Name 2. Telephone Number 3. Email Address
John Doe (123) 456-7890 [email redacted] 4. Subject Matter of Expected Testimony
John Doe will testify regarding the poor workmanship and poor installation of the Garage Door. Mr. Doe will also testify regarding the invoices and change orders for the project.
Witness 1. Name 2. Telephone Number 3. Email Address
4. Subject Matter of Expected Testimony
Witness 1. Name 2. Telephone Number 3. Email Address
4. Subject Matter of Expected Testimony
Witness 1. Name 2. Telephone Number 3. Email Address
4. Subject Matter of Expected Testimony
Witness 1. Name 2. Telephone Number 3. Email Address
4. Subject Matter of Expected Testimony
Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 1 of 3 PART 2: EXHIBIT LIST DOCKET NO. Under A.A.C. R4-9-118(A), before a hearing, a party must prepare a disclosure statement containing a list of all the exhibits that the party will use at the hearing. Note: All exhibits listed below must be provided to all parties to the hearing. See A.A.C. R4-9-118(B). If you need additional space to list all witnesses, complete and attach additional Exhibit Lists. Example Contract for new garage door. Invoice #10001 – Cost for garage door replacement.
Exhibit Exhibit Name
Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 2 of 3 PART 3: ACKNOWLEDGEMENT & SIGNATURE I certify that the above information is true and correct and that I will serve a copy of this disclosure statement and any exhibits listed in Part 2 to all parties to the hearing in accordance with A.A.C. R4-9-118. I acknowledge and understand that if I fail to properly disclose a witness or exhibit, the administrative law judge may: • Order that certain witnesses or exhibits not be used at the hearing; • Order that a particular fact is or is not established for the record; or, • Order that a charge, a defense, a claim, or some portion thereof, be dismissed.
I am the (check one): Complainant Respondent Docket No.
Print Name Signature Date
Form RC-L-800A Prehearing Disclosure Statement Rev. 1/15/2019 Page 3 of 3