ALJDEC decisions subject to certification as final

2021A-03398-NPC-ROC · Registrar of Contractors · 2021-12-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Plumbing Authority LLC,

COMPLAINANT

AZ Renewable Energy Measures LLC

License No. ROC 276700,

RESPONDENT

No. 2021A-03398-NPC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 16, 2021

APPEARANCES: Jeffrey Milan appeared on behalf of Complainant Arizona Plumbing Authority, LLC. Respondent AZ Renewable Energy Measures LLC was represented by Richard Cruz, Esq.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

According to the Registrar of Contractors’ (“the Registrar’s”) public website, on or about February 21, 2017, the Registrar issued License No. ROC 311766 Specialty Dual CR-37 plumbing contracting to Complainant. Jeffrey Milan is the qualifying party/member and the only person currently listed on the license.

On or about April 6, 2021, the Registrar issued License No. ROC 276700 for Specialty Dual CR-61 Carpentry, Remodeling and Repairs contracting to Respondent. Bonnie Jo Dekavallas is a member. David Douglas Jessup is the qualifying party.

On or about July 21, 2021, Complainant filed a complaint with the Registrar alleging that Respondent had failed to pay the remaining balance of $2,361.38.

On August 11, 2021, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent’s license.

On August 12, 2021, Ms. Dekavallas on behalf of Respondent timely answered the Citation, as follows:

We are contesting these charges in the complaint due to workmanship, faulty material, walking off the job and not completing job to City of Mesa, AZ Renewable Energy Measures and ROC standards.

The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, to schedule and to conduct an evidentiary hearing.

On August 26, 2021, the Registrar issued a Notice of Hearing to be held before the OAH on October 14, 2021.

After a continuance, a hearing was held on December 16, 2021. Complainant testified on his own behalf and submitted four exhibits. Respondent offered the testimony of Bonnie Dekavallas and Gary Ray, and submitted seven exhibits.

Hearing Evidence

At hearing, Mr. Milan testified that he had worked with Respondent on at least two other projects prior to this one. Mr. Milan stated that he was hired to purchase and install an ADA compliant shower in the Delci residence for $5,700.00. Once the work was completed, Respondent paid $3,335.38, but has failed to remit the remaining $2,361.62.

Mr. Milan testified that it was his understanding that the shower which was to be installed was to have the shower head on the left and the seat on the right. Mr. Milan demonstrated that he installed the shower per the manufacturers and ADA requirements.

Mr. Milan testified that he used a new shower and provided the invoice for the same.

Ms. Dekavallas testified that she had met with Mr. Milan and Mr. Ray at the residence to discuss where the shower was to be placed.

Ms. Dekavallas testified that on April 13, 2021, she received a call from Mr. Ray stating the shower was not new and was not properly installed. Ms. Dekavallas then tried to contact Mr. Milan to set up a time where they could meet and look at the shower, but Mr. Milan refused.

Next, Ms. Dekavallas testified that she went to the Delci residence on April 19, 2021, and noticed that the shower had pre-drilled holes, the seat was missing a leg, there was discoloration on the walls, the handle looked corroded, but most of all the plumbing was on the incorrect side as it was near the toilet, thus was not ADA compliant.

Ms. Dekavallas testified on cross-examination that while she was at the jobsite multiple times, she was not there to witness the shower being delivered or installed. Further, she testified that on the previous jobs with Mr. Milan, all showers were installed in the same “left-side” manner.

Finally, Ms. Dekavallas testified that she was paid in full by the City of Mesa for the project.

Gary Ray testified next. Mr. Ray was the Housing and Community Development Rehabilitation Specialist for the City of Mesa.

Mr. Ray testified that he was at an initial meeting with Mr. Millan, Ms. Dekavallas and the Delci’s to review the shower installation. Mr. Ray testified that he was also present when the shower was delivered. He testified that he believed that the shower was not a new shower as it was dirty, it already had the curtain rods installed, and was pre-punched for a left-side installation.

Mr. Ray testified that he contacted Ms. Dekavallas when he noticed that the shower was not correctly installed and thus was not ADA compliant.

Mr. Ray also testified that the Delci’s also were unhappy with the how the shower looked, and requested that the shower not be installed.

On cross-examination, Mr. Ray testified that there could have been drill holes to protect the shower during transit, and also added that while there could have been some corrosion, it would only have occurred over a long period of time and not overnight.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish cause to discipline Respondent’s contractor’s license 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 “[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.”

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.” Respondent acknowledged that Complainant installed the shower at the Delci residence.

Respondent instead argued that it is excused from paying Complainant the remaining balance of $2,361.38 for the work because a shower was not new, work was deficient, Complainant refused to repair the work, and any amount that would otherwise be owed is offset by the monies that Ms. Dekavallis had to pay to have the proper ADA compliant shower completed. These are affirmative defenses that Respondent bears the burden to establish by a preponderance of the evidence to avoid a violation of A.R.S. § 32-1154(A)(10).

Respondent bore its burden in establishing affirmative defenses. First, it is unclear why Mr. Milan failed to return to the property when Ms. Dekavallas contacted him about the possible problems with the shower. He could have then provided the receipt to prove it was new, and/or at least verify again that they in fact had the correct shower delivered. The ALJ is also troubled by the invoice presented by Mr. Milan as while the purchase date states “3/30/21”, the date shipped states “4/28/21”, which would be well after the date the shower was delivered and installed to the Delci residence. The ALJ cannot tell however from the evidence presented what the correct amount should have been paid on the project, however, it appears that Complainant has been properly compensated for the work performed.

For the foregoing reasons, Complainant has not established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant the remaining $2,361.38 balance for the shower installation.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar shall not suspend Respondent’s license but, instead, shall close Case No. 2021-03398.

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.

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-137160-45720000Done this day, December 29, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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