ALJDEC decisions subject to certification as final

2016A-3857-ROC · Registrar of Contractors · 2017-01-03

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-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 3, 2016, 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”) failed to appear.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

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

In May 2013, the Registrar issued License No. CR61.284395-D for dual plumbing to Respondent. Respondent’s address of record is 6991 E. Camelback Rd., Ste. D300, Scottsdale, Arizona 85251-2492.

On September 30, 2016, Complainant filed a complaint with the Registrar alleging that Respondent owed a total of $7,220.00 for four separate subcontracts. The jobsite locations and subcontract amounts were as follows: (1) 9478 E. Sunnyside Dr., Scottsdale, Arizona for $1,370.00; (2) 17805 N. 40th St., Unit #134, Phoenix, Arizona for $475.00; (3) 1429 E. Canterbury Dr., Phoenix, Arizona for $3,700.00; and (4) 540 N. May St., Unit #149, Mesa, Arizona for $1,675.00.

On October 24, 2016, the Registrar issued a Citation against Respondent’s contractor’s license, charging cause to suspend or revoke the license under A.R.S. § 32-1154(A)(10). The Registrar mailed a copy of the Citation and Complaint to Respondent at its address of record.

Respondent filed a timely written answer to the Citation, denying any statutory violation and affirmatively alleging that Respondent had to hire other contractors to correct Complainant’s poor work. Respondent’s written answer was on letterhead that showed Respondent’s address of record.

The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On November 14, 2016, the Registrar issued a Notice of Hearing setting a hearing on January 3, 2017, at 1:00 p.m. in the OAH. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record.

A hearing was held on January 3, 2017, at 1:00 p.m. Complainant testified to establish the amounts alleged to be owed in the Complaint that he filed with the Registrar. Complainant testified that Respondent had paid the $475.00 due under the subcontract for the jobsite at 17805 N. 40th St., Unit #134, in Phoenix, Arizona. With that payment, the total amount that Respondent owed Complainant was $6,745.00

Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed twenty minutes to allow Respondent additional travel time, Respondent did not appear, through an authorized member, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to establish its affirmative defense that Complainant performed poor work that justified offsets.

Pursuant to A.A.C. R4-9-117, administrative notice is taken of the Registrar’s public website. On this date, Respondent’s license is current and in good standing. Between April 29, 2016, and May 6, 2016, Respondent’s license was suspended as discipline in another case.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing.

Complainant bears the burden of proof to establish statutory violations by a preponderance of the evidence.

Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant more than $750.00 for materials that Respondent used in its contracting business. Complainant also established that Respondent owes Complainant $6,745.00.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent AZ Best 4 Less Home Services LLC’s License No. CR61.284395-D shall be suspended until Respondent pays $6,745.00 to Complainant Jesus Millan Leyva DBA: Prestige Plumbing Co.

It is further recommended that if on or before the effective date of the order, the Registrar receives satisfactory written proof from Respondent that it has paid $6,745.00 to Complainant by cashier’s or certified check, the Registrar should not suspend Respondent’s license but, instead, should close the complaint in Case No. 2016-3857.

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, January 4, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors