ALJDEC decisions subject to certification as final

2016A-4023-ROC · Registrar of Contractors · 2017-02-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

AZ's Best 4 Less Home Services LLC,

COMPLAINANT,

v.

Jesus Millan Leyva

DBA: Prestige Plumbing Co ,

License No: 211324

RESPONDENT.

No. 2016A-4023-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 6, 2017, at 1:00 p.m.

APPEARANCES: AZ’s Best 4 Less Home Services LLC (“Complainant”) was represented by Herriberto Varela, its qualifying party, and Rosa Sankari, its manager; Jesus Millan Leyva DBA: Prestige Plumbing Co. (“Respondent”) appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On or about September 12, 2008, the Arizona Registrar of Contractors (“the Registrar”) issued License No. CR37.211324-D for dual plumbing to Respondent.

On or about May 29, 3013, the Registrar issued License No. CR61.284395-D for carpentry, remodeling and repair to Complainant.

On or about October 12, 2016, Complainant filed a complaint with the Registrar alleging that Respondent performed poor work and failed to resolve conflicts with a homeowner while working as a subcontractor for Complainant on a project on which it had acted as general contractor at 1429 E. Canterbury Dr., Phoenix, AZ 85022.

Complainant attached to its complaint a copy of Respondent’s Bid Response Form, proposing to perform certain work at an hourly rate of $85.00. The bid did not include a total job cost.

The Registrar’s Investigator Steve Klein performed a jobsite inspection and, on November 15, 2016, sent a Directive to the parties, requiring that on or before 5:00 p.m. on November 30, 2016, “Respondent shall complete project per original contract agreement and properly executed change orders.”

Although the parties initially indicated to Investigator Klein that they intended to reach a financial settlement, when Complainant informed Investigator Klein on December 1, 2016, that the parties had not reached a settlement, he forwarded the complaint to the Registrar’s Legal Department.

On December 2, 2016, the Registrar issued a Citation against Respondent’s license, charging cause to revoke or suspend the license under A.R.S. § 32-1154(A)(8).

Respondent filed a timely written answer to the Citation, stating that Complainant’s qualifying party had asked Respondent to depart from the original project specifications to avoid collateral damage to tile, that Respondent had issued a credit for the new valves that were not used, and that the homeowner had given permission for Respondent to perform certain additional work for an additional cost.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, to schedule and to conduct a fair hearing.

A hearing was held on February 6, 2017. Investigator Klein, Respondent, Complainant’s qualifying party, and Complainant’s manager testified.

Hearing Evidence

Complainant presented evidence that the homeowner, David Mason, was dissatisfied with Respondent’s work and charges and that Respondent failed to respond to the Mr. Mason’s concerns. Complainant’s representatives testified that as a result, Mr. Mason kicked Complainant off the job and they lost $2,854.28 that Mr. Mason would have paid Complainant for the job.

On September 2, 2016, Respondent submitted to Complainant an invoice for $3,250.00 for “Original Contract,” $275.00 for “Change order #1 Washerbox,” and $175,00 for “Change order #2 Icemaker box,” for a total of $3,700.00.

On November 28, 2016, Respondent submitted to Complainant an invoice for $3,250.00 for “Entire house repipe original contract” and $500.00 for “tub & shower valve credit,” for a total of $2,750.00.

Respondent did not submit any change orders signed by Mr. Mason or Complainant’s principals.

Investigator Klein testified that the workmanship issues were that the fixtures in the shower had not been changed out, that Respondent had to cut through drywall to reroute water lines, and that Respondent had installed saver boxes that were not on the contract. Investigator Klein testified that he believed that cutting through the drywall was necessary.

Respondent testified that Complainants’ representatives were liars and that he had no committed any improprieties on the job.

CONCLUSIONS OF LAW

Complainant bears the burden of proof and must establish Respondent’s contracting law violations by a preponderance of the evidence.

“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 “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent submitted inconsistent invoices and did not establish that Complainant or the homeowner authorized the additional charges on the September 23, 2016 invoice. Apparently, on November 28, 2016, Respondent corrected the September 23, 2016 invoice to show a credit for the valves that it did not install and to omit the charges for the additional work that was not reflected in signed change orders. Therefore, Complainant did not establish did not establish cause to suspend or revoke Respondent’s contractor’s license under A.R.S. § 32-1154(A)(8).

The legislature has not empowered either the Office of Administrative Hearings or the Registrar to adjudicate or award money damages. The Registrar may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation cannot be remedied by corrective work. Restitution may be appropriate when the contractor does not immediately respond to a property owner’s complaint and the workmanship deficiency is such that the property owner is justified in hiring another contractor to remedy a health or safety issue or to mitigate his damages.

Restitution in a regulatory context is similar restitution in a criminal context, where a defendant may be sentenced to pay his victim restitution consisting of any economic loss directly caused by the defendant’s conduct. “‘Economic loss’ means any loss incurred by a person as a result of the commission of an offense. . . . Economic loss does not include . . . consequential damages.” The concepts of “economic loss” and “consequential damages” in these criminal statutes were borrowed from civil common law. “Consequential damages are such as are not produced without the concurrence of some other event attributable to the same origin or cause; such damage, loss, or injury as does not flow directly and immediately from the action of the party, but only from the consequences or results of such act.”

The relief that Complainant seeks in this matter consists of consequential damages, or reimbursement for monies for the loss of its contract with Mr. Mason, which it claims was caused by Respondent’s misconduct on the job. Consequential damages may only be recovered a court of competent civil jurisdiction.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that, on the effective date of the Registrar’s final order in this matter, that the Registrar dismiss Complainant AZ’s Best 4 Less Home Services LLC’s complaint in Case No. 2016-4023 against Respondent Jesus Millan Leyva DBA: Prestige Plumbing Co.’s License No. CR37.211324-D.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be five days from the date of certification.

Done this day, February 6, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors