ALJDEC decisions subject to certification as final

2016A-3857-NPC-ROC · Registrar of Contractors · 2017-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jesus Millan Leyva, DBA: Prestige Plumbing Co.,

COMPLAINANT,

v.

AZ's Best 4 Less Home Services LLC,

License No. CR61.284395-D,

RESPONDENT.

No. 2016A-3857-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 5, 2017, at 1:00 p.m.

APPEARANCES: Jesus Millan Leyva, DBA: Prestige Plumbing Co. (“Complainant”) appeared on his own behalf; AZ’s Best 4 Less Home Services LLC (“Respondent”) appeared through Rosa Sankari, its office manager.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about September 12, 2005, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR37.211324-D for plumbing to Complainant.

On or about May 29, 2013, the Registrar issued License No. CR61.284395-D for carpentry, remodeling and repair to Respondent.

On or about September 30, 2016, Complainant filed a complaint with the Registrar against Respondent, alleging that it owed him $7,220.00 for three different jobs, as follows: (1) $1,370.00 for work done at 9470 E. Sunnyside Dr., Scottsdale, Arizona (“the Sunnyside job”); (2) $475.00 for work done at 17805 N. 40th St., Unit #134, Phoenix, Arizona (“the 40th St. job”); (3) $3,700.00 for work done at 1429 E. Canterbury Dr., Phoenix, Arizona (“the Canterbury job”); and (4) $1,675.00 for work done at 540 N. May St., Unit #1149, Mesa, Arizona (“the May St. job”).

On or about October 24, 2016, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent.

On or about November 4, 2016, Respondent filed a timely written answer to the Citation, attaching a copy of a check in the amount of $475.00 that it had paid Complainant for the 40th St. job and alleging that Complainant had failed to complete the other jobs and that its poor work and ill treatment of customers caused Respondent to incur losses and cost Respondent at least one customer.

The Registrar referred the dispute to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on May 5, 2017. Complainant testified on his own behalf and submitted three exhibits. Respondent submitted five exhibits and presented the testimony of its office manager, Rosa Sankari, and qualifying party/member, Heriberto Godinez Varela. The parties presented evidence on the Sunnyside job, the Canterbury job, and the May St. job.

Hearing Evidence

Complainant testified that the parties’ agreement for all three remaining jobs was that Respondent would pay Complainant for parts and labor.

The parties agreed that Respondent had filed workmanship complaints with the Registrar for all three jobs. Neither of the parties provided case numbers or submitted documentation regarding the outcome of the complaints.

Complainant testified that the Registrar had not made a finding that his workmanship on any of the three jobs was deficient.

Ms. Sankari testified that Respondent’s complaints sought compensation for the costs of repairing or completing the jobs, lost business, and other losses caused by Complainant’s deficient workmanship and poor attitude. Ms. Sankari testified that the Registrar closed the three complaints because it stated that it lacked jurisdiction to award money damages.

The Sunnyside Job

Complainant submitted an in invoice dated September 12, 2016 for “Peggy” at the Sunnyside job in the amount of $1,370.00.

Ms. Sankari testified that the homeowner on the Sunnyside job was 80 years old. Ms. Sankari testified that Respondent had hired Complainant to perform some plumbing involved in the renovation of a bathroom.

Ms. Sankari testified that Complainant had shown up late and had taken a week to complete the work. Ms. Sankari testified that after Complainant left the Sunnyside job, the homeowner had called to report that she had no hot water. The homeowner sent an email to complain to Respondent about the lack of hot water and Complainant’s failure to clean up the jobsite. Because the homeowner was 80 years old and needed hot water, Respondent sent Moon Valley Plumbing & Rooter LLC (“Moon Valley”) to investigate and repair the issue. Moon Valley charged Respondent $79.00 to investigate and $375.00 to “open drywall behind shower and properly install [Kohler] shower valve in hall bath.”

Ms. Sankari explained that although Respondent filed a complaint with the Registrar about the Sunnyside job, a jobsite inspection was not scheduled for a month. Because the homeowner had no hot water in her house, Respondent hired Moon Valley to repair the problem. Ms. Sankari testified that Respondent’s cost to repair the drywall behind the shower was $150.00.

The Canterbury Job

Complainant submitted an invoice dated November 28, 2016, that showed that Respondent owed $2,750.00 for the Canterbury job. Complainant explained that he had reduced the charge $950.00 as a result of the complaint that Respondent had filed with the Registrar.

David Mason was the homeowner on the Canterbury job. Ms. Sankari testified that Respondent’s agreement with Mr. Mason was that it would pass on Complainant’s price without any markup but that Respondent would charge overhead and profit for the rest of the job.

Respondent attached to its Written Answer a complaint that Mr. Mason had made to Respondent about Complainant’s delays and failure to protect Mr. Mason’s property. Mr. Mason also stated that Complainant had submitted an additional invoice after Respondent had informed Mr. Mason that he did not owe any more money for Complainant’s work. Ms. Sankari testified that Complainant refused to communicate with Respondent about Mr. Mason’s dissatisfaction.

Ms. Sankari testified that Complainant had threatened Mr. Mason and that as a result, Mr. Mason had fired Respondent. Respondent’s written answer alleged that Respondent had lost $2,854.00 as a result of being fired by Mr. Mason due to Complainant’s unprofessional conduct.

The May St. Job

The May St. job was at Ms. Sankari’s personal residence.

Complainant submitted an invoice dated September 22, 2016, that showed a balance of $1,675.00 being due for the May St. job.

Ms. Sankari testified that while Complainant was working on her residence, she had to stay in a hotel. Although she told Complainant that she had a deadline to move out of the hotel, he took two weeks to set up the toilet in the bathroom and put a sink and faucet in the kitchen. As a result, she incurred additional lodging costs.

Ms. Sankari testified that Complainant had ruined the grout in the tile floor because he did not protect it during his work. When Complainant removed the toilet, he left wax strips without covering up the floor, which caused the grout to turn black. Complainant submitted an estimate of $80.00 to clean the grout.

Ms. Sankari testified that Complainant damaged brand-new cabinets by not protecting them, then dragging tools into them. In addition, Complainant lost materials that Ms. Sankari had purchased for the job, such as a garbage disposal, an air switch, and button for the granite counter.

Ms. Sankari testified that, in addition, Complainant’s work on her home was poor and would need to be repaired. The faucet was crooked, Complainant had misplaced the port for the hand-held shower nozzle, and Complainant had failed to install a toe kick for the dishwasher.

CONCLUSIONS OF LAW

Most complaints for non-payment lie with the Registrar’s jurisdiction to resolve.

Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence. Respondent bears the burden to establish 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 “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

The legislature has not empowered the Registrar or the Office of Administrative Hearings to award general consequential damages that would be awardable in a civil court action. The offsets that Respondent seeks mostly constitute general consequential damages.

The Registrar’s lack of power or jurisdiction to award general consequential damages prevents liquidation of any debt to either contractor in this administrative proceeding. It also prevents any determination of whether any monies are due to Complainant from Respondent for any of the three contracts under A.R.S. § 32-1154(A)(10).

/ / / /

RECOMMENDED ORDER

Based on the foregoing, it is recommended that Complainant Jesus Millan Leyva DBA: Prestige Plumbing Co.’s complaint in Case No. 2016-3857 against Respondent AZ’s Best 4 Less Home Services, LLC’s License No. CR61.284395-D shall be dismissed, without prejudice to the parties seeking relief against each other in a court of competent civil jurisdiction.

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 five days from the date of that certification.

Done this day, May 11, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors