ALJDEC decisions subject to certification as final

2017A-5067-NPC-ROC · Registrar of Contractors · 2018-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Modern Lift Inc,

COMPLAINANT,

v.

Jeffrey John Spiri dba,

Spectra Kitchen and Bath,

License No: 303692 and 270946,

RESPONDENT.

No. 2017A-5067-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 19, 2017 at 1:00 p.m.

TELEPHONIC APPEARANCES (via Tucson): Bill Riley (“Mr. Riley” representative for Modern Life Inc. (“Complainant”)); Amy Webb (“Ms. Webb” witness for Complainant); Jeffrey Spiri (“Mr. Spiri” representative for Spectra Kitchen and Bath); and Patrick J. Lopez (“Mr. Lopez” attorney for Complainant).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

The hearing was convened to determine whether Respondent violated the charged provision A.R.S. § 32-1154(A)(10) alleged by Complainant and as cited by the Registrar. Complainant’s Exhibits C1-C6 and Respondent’s Exhibits R1-R2 were admitted. Based on the testimony and evidence presented, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order.

FINDINGS OF FACT

Jeffrey John Spiri DBA Spectra Kitchen and Bath (“Respondent”) is the holder of License Nos. CR60-270946.D and CR61-303692.D issued by the Registrar of Contractors (“Registrar”).

On or about October 9, 2017, Modern Lift, Inc. (“Complainant”) filed with the Registrar a Complaint against Respondent alleging that Respondent failed to pay Complainant the sum of $2,576.96 for labor and parts in repair of two (2) forklifts; specifically, a 1996 Komatsu forklift and a 1973 Clark C500-Y45.

Complainant alleges the following invoices as outstanding:

05/12/2017 Invoice No. 55940 $ 775.22

Make: Clark C500-Y45 Serial Y355-87-2562 Hours 660

Customer complains of problem with battery drawing down on lift, charge battery to check draw, find draw on wire. Started tracing but ran out of time, will continue diagnosing tomorrow.

Labor: 6 hours at $98.00 $588.00

Parts: (4) spark plugs, 72 CSS4V*4G cable,

per inch; (3) cable Lug, 4GA; (1) clamp;

(1) group 24 battery, reverse terminal;

(8) wire tie. $173.19

Tax $ 14.03

06/17/2017 Invoice No. 56181 $ 2,081.13

Make: Komatsu Forklift

04/19/2017 arrive at customer site, lift was a hard start and would shut off, found mixer is loose on intake, mixer adaptor was broken on mounting bolts. Made temp gasket and apply silicone to seal until new mixer and adaptor could be located. Mixer had bad diaphram as well.

Labor: 16.5 hours (minus 3 hrs waived) $1,323.00

Parts: (1) LP Mixer/Throttle Body Adapter;

VFF 30 LP Valve; (1) model J converter;

Internal resister coil N/C; (1) Brass elbow;

Brakleen parts cleaner $ 660.39

Tax $ 53.49

07/15/2017 Invoice No. 56427 $320.61

Make: Komatsu Model FG30GT-11 Serial: 493337A

Arrive at site for leak on lift. Found trans. Cooler line had a hole rubbed into it from clamp breaking letting hose hit alternator pulley, alternator belt has become oil soaked causing belt to come off. Lift had over heated. Remove and pick up parts. Return to site and install new hoses, and new belt. Install new clamps. Top off coolant and trans. Run lift and test for leaks. All OK. Route hoses to avoid further issues.

Labor: 2 hours at $98.00 $ 196.00

Parts: (10) 1⁄2’ house (bulk); (8) hose clamp;

Belt; (1) antifreeze; (2) super III ATF;

Brakleen parts cleaner $ 114.74

Tax $ 9.87

The Registrar sent a letter to the parties on October 10, 2017, providing notice that a Complaint has been filed against Respondent for non-payment of materials or services rendered, and that Respondent may file a response to the Complaint.

Respondent replied to the initial complaint on October 16, 2017, asserting that Complainant was paid $600.00 for parts but “that they were not paid for the remainder is that they did not fix the forklifts. In fact they did further damage to one of them which can be verified by the technician who did repair the unit.”

On October 17, 2017, the Registrar issued a Citation to Respondent for Alleged Violation of A.R.S. § 32-1154(A)(10) . . . failure to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with licensee’s operations.

Respondent replied to the Citation on October 25, 2017, alleging that Complainant did not fix either one of the forklifts and Complainant caused additional damage to one of the machines.

A Notice of Hearing was issued that a hearing will be held at the Office of Administrative Hearings located at 1400 W. Washington St., Ste 101, Phoenix, AZ 85007.

TESTIMONY/ EVIDENCE

Patrick J. Lopez (“Mr. Lopez”) attorney representing Complainant argued that invoices are due upon receipt, and that there remains three (3) outstanding invoices for labor and parts dated 05/12/2017, 06/17/2017, and 07/15/2017 for a total remaining balance of $2,576.96.

Jeffrey John Spiri, (“Mr. Spiri”) on behalf of Respondent asked the Tribunal to dismiss the complaint based on allegations that the work was not performed satisfactorily. He testified that payments for other services unrelated to this Complaint have been paid to Complainant but argued that Complainant is incompetent and unable to fix the forklift in one day. He also alleged that Complainant damaged and left broken parts in the engine area.

Amy Webb (“Ms. Webb”) testified that she is vice president for Modern Lift, Inc., and has worked for the company for 17 years. She further stated the company has been in business for 27 years. Ms. Webb credibly testified that she made numerous good faith attempts to collect the unpaid invoices and was in discussion with Respondent’s employee, Ray Leon, in its attempts to collect.

Ms. Webb provided a synopses of her collection attempts and the communications exchanged between Mr. Leon and herself from 08/01/2017 to 09/19/2017.

Bill Riley (“Mr. Riley”) representative for Complainant testified that the Clark forklift is older and parts are harder to get (if not obsolete).

Respondent was asked if it every expressed any issues with Complainant regarding its alleged dissatisfaction with the work performed or if it ever provided an opportunity to remedy the complained of issues to which he replied, no. He testified that by his actions, Complainant should have been on notice that it was dissatisfied with the work performed but never sent any documentation, written or oral dispute to the invoices, or informed Complainant of any problems concerning the work performed or invoices.

Respondent testified that another technician substantiated the alleged damages caused by Complainant to its equipment and supported its position that Complainant performed substandard work to its equipment. However, he failed to present any witnesses at hearing or submit timely exhibits in support of this argument.

On December 28, 2017, Respondent submitted a document to the Administrative Law Judge which will not be considered as there was no minute entry made following the hearing to keep the record open while awaiting new information or that new information would be admitted.

CONCLUSIONS OF LAW

The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

[f]ailure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee's operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

The evidence established that Complainant is due its unpaid balance owed by Respondent in the amount of $2,576.96 for the skilled labor and parts that it received. Respondent’s allegation that Complainant’s work was unsatisfactory fails since there is no evidence or testimony that dissatisfaction was every brought to the attention of Complainant. Additionally, Ms. Webb testified that she was never made aware of any dispute to payment but to the contrary was consistently told by Respondent’s employee that payment is forthcoming.

Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $2,576.96 for services and materials rendered to Respondent.

Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s licenses.

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar suspend Respondent Jeffrey John Spiri’s License Nos: CR60-270946.D and CR61-303692.D issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $2,576.96 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $2,576.96 in certified funds, the Registrar may close the Complaint in Case No. 2017-5067.

In the event of certification of this 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 the certification.

Done this day, January 8, 2018.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors