ALJDEC - Licensing
2022A-10401-NPC-ROC · Registrar of Contractors · 2023-03-17
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
G M Tile, LLC,
COMPLAINANT,
v.
Specialty Installations and Service, Inc.
License No. ROC 195134,
RESPONDENT
No. 2022A-10401-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 7, 2023
APPEARANCES: Luis Munoz and Gustavo Munoz appeared on behalf of Complainant G M Tile, LLC. Patrick and Jodi Parnell appeared on behalf of Respondent Specialty Installations and Service, Inc.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
Specialty Installations and Service, Inc. (“Respondent”) is the holder of License No. 195134, issued by the Arizona Registrar of Contractors (“Registrar”). Patrick Parnell is Respondent’s Qualifying Party and Officer.
On or about December 7, 2022, G M Tile, LLC (“Complainant”) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $7,583.04 for work performed on three showers.
On December 27, 2022, the Registrar issued a Citation charging Respondent with the alleged violation of A.R.S. § 32-1154(A)(10). Respondent timely filed an Answer to the Complaint.
A Notice of Hearing was issued on February 2, 2023, advising the parties that a hearing would convene before the Office of Administrative Hearings on March 7, 2023. On the date and time set for hearing, Luis Munoz and Gustavo Munoz appeared on behalf of Complainant. Patrick and Jodi Parnell appeared on behalf of Respondent.
On or about April 6, 2022, the parties contracted for Complainant to perform the following scope of work:
Master
Shower Walls $ 2,275.88
Shower Floor $ 769.63
Shower Ceiling $ 816.63
Kerdi Board $ 950.00
Nich and Bench
Floor
Wainscoting
Bathroom #2
Shower Walls $ 1,785.00
Shower Floor $ 573.13
Shower Ceiling $ 608.13
Kerdi Board $ 760.00
Nich and Bench
Floor
Bathroom #3
Shower Walls $ 1,677.90
Shower Floor $ 474.88
Shower Ceiling $ 503.88
Kerdi Board $ 665.00
Nich and Bench
Floor
The total contract price was $11,860.06. On April 6, 2022, Respondent paid Complainant a deposit in the amount of $5,930.03.
By invoice dated December 8, 2022, Complainant billed Respondent for a balance of $7,583.04. Complainant added three shower drains at an additional cost of $968.71, and metal supports for the three shower benches at an additional cost of $684.30, bringing the total contract price to $13,513.07.
Mr. Luis Munoz testified that he met Respondent at the jobsite on March 31, 2022 to walk the job. Mr. Munoz testified that Respondent wanted him to utilize drains that Respondent already had, however, Mr. Munoz informed Respondent that he could not work with those drains. Consequently, Complainant purchased the necessary drains at a cost of $968.71.
Regarding the bench supports, Mr. Munoz testified that Respondent already had bench supports, however, Mr. Munoz did not believe they could be utilized. Mr. Munoz contacted the manufacturer and the manufacturer advised not to use the bench supports provided by Respondent. Mr. Munoz testified that he informed Respondent of the manufacturer’s recommendation and that Respondent agreed with it.
Mr. Munoz testified that all work was completed by Complainant with the exception of the valve covers. Mr. Munoz explained that the valve covers were not wide enough, and that he contacted the manufacturer to consult how to rectify the issue. Mr. Munoz testified that Respondent would not give Complainant the opportunity to return to the jobsite to perform this remaining work. Mr. Munoz estimated that the remaining work would have taken approximately one hour at a cost of $50.00. However, Mr. Munoz did not provide any documentation of what the remaining work entailed and the cost of the valve covers and installation is not delineated on either invoice.
Mr. Parnell testified that the initial estimate for the job was $30,000.00, which included tile. Mr. Parnell decided not to utilize Complainant for the tile installation, and the estimate was revised to exclude the tile. Mr. Parnell asserted that the benches and drains should have been incorporated in the April 6, 2022 estimate. Upon review of the April 6, 2022 estimate, the benches were included in the estimate (see above).
Mr. Parnell acknowledged that he agreed to not use the drains he already had and to allow Complainant to order different drains, stating that he understood Complainant’s reasoning.
Mr. Parnell took issue with the fact that Complainant “added almost $2,000.00 to the bill when the estimate should have been revised right away, not a month later after the work was performed.”
During the course of the parties’ testimony, it was revealed that the parties’ mutual feeling regarding a lack of communication may have resulted from Complainant forwarding an email to Respondent from the valve manufacturer and Respondent not realizing that it was from Complainant, and therefore did not timely respond to the communication. Respondent believed Complainant had abandoned the project, and Complainant believed that Respondent had not responded to its request to complete the work per manufacturer specifications.
Mr. Parnell testified that he is willing to pay Complainant the original contract balance of $5.930.03.
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 this matter is 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.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license:
Failure by a licensee or agent or official of a licensee to pay monies in excess of $750 when due for materials or services rendered in connection with the licensee's operations as a contractor unless the licensee proves that the licensee lacks the capacity to pay and has not 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 performed the work it was contracted to perform with the exception of the valve covers. Respondent did not dispute that it owes Complainant the original contract balance which included the valve covers. Respondent disputed the additional amounts for the drains and benches. However, Respondent further acknowledged that it “understood” that new drains would be necessary. Regarding the support for the benches, the benches were included in the original estimate and it is reasonable to assume that this would include the support for the benches. The Administrative Law Judge concludes that Respondent has failed to pay Complainant the contract balance of $5,930.03 that it admittedly owes, as well as $968.71 for the drains, for a total amount due and owing to Complainant of $6,898.74.
Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed.
Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $6,898.74 for services or materials rendered in connection with Respondent’s contracting business.
Based upon Respondent’s violation of the provisions of A.R.S. § 32-1154(A)(10), grounds exist to impose discipline against Respondent’s license.
RECOMMENDed order
Based on the foregoing, it is recommended that the Registrar suspend Respondent’s License No. 195134 until it has provided to the Registrar, and the Registrar has accepted documents that establish that it has paid Complainant $6,898.74 in certified funds.
It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $6,898.74 in certified funds, the Registrar may close the Complaint in Case No. 2022-10401.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, March 17, 2023.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
[email redacted]
G M Tile, LLC
[email redacted]
Specialty Installations and Service, Inc.
[email redacted]
By: OAH Staff