ALJDEC decisions subject to certification as final

2010A-576014-ROC · Registrar of Contractors · 2010-05-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 14, 2010 APPEARANCES: Elmer Zimmer appeared telephonically. Yuma Plumbing, L.L.C. was represented by its authorized representative, Arthur Shepard. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Yuma Plumbing, L.L.C. (“Respondent”) is the holder of License No. 259679, a Class K-77 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On November 5, 2009, Elmer Zimmer (“Complainant”) filed a written Complaint with the Registrar alleging that Respondent charged Complainant more than the alleged agreed upon price of $250.00 for repair work performed by Respondent at Complainant’s residence located at 11382 E. 35th Street, Yuma, Arizona. 3. The Registrar originally designated Complainant’s Complaint as Case No. Y10-0057. The Complaint was later changed to Case No. 2010-576014. 4. The Registrar issued a Citation and Complaint in this matter charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (9). 5. The Registrar forwarded Complainant’s Complaint to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. On October 22, 2009, Complainant called Respondent’s office to schedule a service call at his residence. Complainant spoke to Respondent’s member and qualifying party, Arthur Shepard (A.Shepard), asking for a quote. Mr. A. Shepard informed Complainant that Respondent does not give estimates over the telephone, but an estimate could be given after a technician viewed the proposed scope of work. 7. At Complainant’s request, Respondent dispatched two technicians to perform a service call at Complainant’s residence on October 23, 2009. One of the technicians was Mr. A. Shepard’s son, Jason Shepard (J. Shepard). 8. When Respondent’s technicians arrived at Complainant’s residence, they reviewed the proposed scope of work, which involved the removal and replacement of two bathtub drains and, eventually, two traps in Complainant’s manufactured home. 9. At hearing, Complainant testified that Mr. J. Shepard telephoned his father to discuss the project. After that telephone call, Complainant contends that Mr. J. Shepard quoted Complainant a price of $125.00 per tub, including traps. Mr. J. Shepard testified that he did not quote such a price. 10. Complainant testified that Respondent’s technicians did not have the proper tools for the project. Mr. J. Shepard credibly testified that he had the proper tools for the service call. 11. Mr. J. Shepard further testified that Complainant’s manufactured home had bad plumbing and that the technicians did not realize that the traps had to be replaced until the technicians were approximately one- quarter into the project. The drains were under water. 12. After completion of the service call, Respondent’s technicians informed Complainant that the charge for the work performed was $938.81. Complainant refused to pay that amount. 13. On October 23, 2009, Complainant telephoned Mr. A. Shepard to complain about the amount of the bill. Mr. A. Shepard then called his son and instructed him to discount the bill by 50%, plus an additional $100.00, for a total amount of $369.40 if Complainant paid the entire bill that day. Complainant refused to pay the discounted balance of the bill. 14. In early December 2009, Respondent sent Complainant an itemized statement of the original charges in the amount of $930.81. Among other charges, the invoice listed the time each of the technicians spent on the service call as 4.75 hours at a rate of $88.00 per technician. 15. Later in December 2009, Complainant wrote to Mr. A. Shepard and included a check in the amount of $350.00 with the notation in the check’s memo which read: “Service 10/23 paid in full.” Complainant wrote the following to Mr. A. Shepard: Price quoted at start of job: $250 ($125 per tub including trap) – approved by me

“Fixed-price job” – confirmed by you

Price when job completed per your son: $350, and he suggested splitting the difference.

Attached is our check for $350.00

16. Mr. A. Shepard denied that he ever confirmed to Complainant that the service call was a fixed price job. 17. Complainant wrote a letter, dated January 11, 2010, to Daryl McCloskey, the Registrar’s assigned inspector for this case. Complainant’s letter reads as follows: We offered today to pay Yuma Plumbing a total of $369.40 ($350 paid by check on 12/17/09 plus an additional $19.40) just in order to settle the matter, and not an agreement to the bill submitted to us on 12/15/09.

We found a receipt for the same work done 11/22/02 for $175.00.

18. Complainant has not tendered payment in the amount of $19.40 to Respondent to satisfy the outstanding amount of the bill. 19. Respondent has not negotiated Complainant’s check in the amount of $350.00 because of the “paid in full” restriction. 20. The evidence presented by Complainant reflects that Wright’s Plumbing installed two tub drains on November 22, 2002, for the amount of $175.00. Such evidence, predicated on work done almost seven years earlier than Respondent’s service call in the present matter, is not found to be probative for establishing the value of Respondent’s work or the financial arrangement agreed upon by Complainant and Respondent. 21. The evidence presented by Complainant regarding a quote from Milo’s Plumbing, L.L.C. for replacing drains and traps in the total amount of $250.00 is not found to be probative for establishing the value of Respondent’s work or the financial arrangement agreed upon by Complainant and Respondent. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainant has the burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (9), which reads as follows: “failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.” 4. The Administrative Law Judge concludes that Complainant failed to sustain his burden of proving that Respondent had agreed upon a price of $250.00 for performing the scope of work on the October 23, 2009 service call. Therefore, the evidence of record does not support a conclusion that Respondent violated the provisions of A.R.S. § 32- 1154(A) (9), as charged in the Citation and Complaint issued by the Registrar. RECOMMENDED ORDER The Citation and Complaint issued by the Registrar in this matter shall be dismissed on the effective date of the Order entered in Case No. 2010-576014. 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 40 days from the date of that certification.

Done this day, May 26, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826