ALJDEC decisions subject to certification as final

2017A-5146-NPC-ROC · Registrar of Contractors · 2018-02-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Otoniel Hernandez, DBA: Today’s Tile and Flooring

COMPLAINANT

v.

Urban Customs LLC ,

License No. 293305

RESPONDENT.

No. 2017A-5146-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 17, 2018, at 8:30 a.m.

APPEARANCES: Otoniel Hernandez (“Mr. Hernandez” or “Complainant”); Heath Caldwell (“Mr. Caldwell” representative for Urban Customs, LLC “Respondent”); and Bob Porter (“Mr. Porter” attorney for Respondent).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

FINDINGS OF FACT

Urban Customs LLC (Respondent) was issued License No. CR60-293305 on July 29, 2014, issued by the Registrar of Contractors (Registrar) for finish carpentry. Heath Nelson Caldwell is the qualifying party/member.

According the Registrar public website, Otoniel Hernandez (Complainant) was issued License No. CR48-259095 on September 18, 2009, for plastic, metal and ceramic tile. Complainant is the qualifying party/owner, and has no prior or outstanding complainants filed against it.

Complainant filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay $1,180.00 stemming from its installation of tile in the master bathroom floor, walls, and shower of the client’s residence on or about October 11, 2017. Consummation of the agreement was through text messages.

Complainant was paid $1,600.00 on 04/26/2017; and $480.00 on 05/16/2017 of the $3,000.00, thus leaving a balance of $920.00 of the agreed upon $3,000.00 for labor only, but alleges he is owed $1,180.00. The invoices and documents attached to Complainant’s Complaint did not coincide with the alleged outstanding amounts but were for work performed for George Farrazzi at Adeptus Hospital.

Respondent entered its response to the complaint on November 2, 2017, to include photographs of the jobsite. Respondent does not deny hiring Respondent or having hired him in the past. Respondent set forth in his letter several workmanship issues against Complainant. Respondent alleges that Complainant was provided an opportunity to remedy its concerns. Although Respondent stated in its letter that there was disagreement on the time needed to perform the corrective action wherein he writes, “He stated at the time that ‘it could all be fixe in 3-4 hours.’” The letter indicated that at the time of the inspection between Complainant and Respondent tensions escalated and Complainant was asked to leave the property. The parties were unable to resolve their difference.

On November 7, 2017, the Registrar then issued a formal Citation charging Respondent with a possible violation of A.R.S. § 32-1154(A)(10).

Respondent’s counsel submitted its response to the Citation on November 20, 2017, denying the allegations in Complainant’s complaint, and listed workmanship issues. The Response also restated that tensions escalated between the parties upon an inspection of the work that was complete.

Respondent provided several tax documents relating to Complainant as attached to its response and submitted these in its Disclosure Statement which, upon review, appear to be irrelevant to the Citation and the alleged monies owed to Complainant.

Respondent also offered an affidavit obtained from the homeowner attesting to the incident he stated occurred on May 2, 2017, during the jobsite inspection that took place between Complainant and Respondent.

Respondent offered several text messages and photographs that were sent from Complainant to Respondent identifying problem areas found at the jobsite at the outset of this project.

Several photographs were also submitted that were sent from Complainant to Respondent upon completion of the work in support of its position that the work was performed and denying any broken tiles.

In addition, Respondent included in its Disclosure Statement several text messages of the communications exchanged wherein Complainant continues to attempt to collect monies owed to him. A text message included represented an exchange between Respondent (Rachel) and Complainant on April 29, 2017, at 1:51 pm asking whether the remaining funds were transferred. The response from Respondent (Rachel) was “I thought I did, let me try again.”

On May 1, 2017, Respondent (Rachel) texted Complainant that Respondent (Heath) found several issues that he wants to go over with Complainant including broken tiles. Complainant texted back photographs of the work that was performed restating no broken tiles.

Respondent testified that Complainant was not responsible for materials and that the agreed upon payment was for labor only. In its exhibits, it included an invoice dated April 26, 2017, that deducts “back charge for replacement of shower pan mosaic, 6 – 12x24 tile replacement, and grout clean up. Labor included ($1,180.00). However, this deduction, in large part, includes materials, and was dated prior to the text message sent to Complainant that payment was forthcoming.

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 . . . 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.

In the absence of a written agreement between the parties, the Tribunal will refer to the text messages in which the $3,000.00 was the agreed upon price for the work to be performed. This Tribunal also takes notice that Respondent expressly stated, “no”, in the text messages to the additional $200.00 for two (2) shelves that Rachel requested.

This Tribunal takes notice to Respondent and Complainant’s testimony that an argument occurred on May 2, 2017, at the meeting in which they inspected the work performed, and an affidavit was received from the homeowner prohibiting the Complainant access to remedy. Therefore, Complainant was unable to remedy Respondent’s concern(s) and was denied access to remedy any complained of workmanship issue.

A Homeowner is “not prevented from refusing access because of their right to exclude others from their homes and it would not be appropriate to require contractors to trespass. [But it] is recognized that lack of access impinges on one party’s ability to defend itself.” Licensed contractors are expected to have sufficient professionalism to deal with difficult clients and situations.

This Tribunal finds that Complainant meet its burden of proof in that Respondent violated A.R.S. § 32-1154(A)(10), and that the monies owed is above the statutory threshold of $750.00.

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar suspend Respondent Urban Custom LLC, License No: 293305 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted documents that establish that it has paid Complainant $920.00 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $920.00 in certified funds, the Registrar may close the Complaint in Case No. 2017-5146

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, February 8, 2018.

/s/ Linda Marie Brown

Administrative Law Judge