ALJDEC - Licensing

2023A-04400-NPC-ROC · Registrar of Contractors · 2023-08-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Designs Kitchens and Baths LLC,

COMPLAINANT,

Real Exquisite Estates and Properties LLC,

License No. ROC 240880,

RESPONDENT.

No. 2023A-04400-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 12, 2023

APPEARANCES: Attorney Russell E. Krone represented Arizona Designs Kitchens and Baths LLC and Sandra Nance, Owner. Qualifying Party Monty Bartholomew represented Real Exquisite Estates and Properties LLC.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

Real Exquisite Estates and Properties LLC (Respondent) is the holder of License No. 240880 issued by the Registrar of Contractors (Registrar).

On or about March 14, 2023, Arizona Designs Kitchens and Baths LLC (Complainant) filed a Non-Payment Complaint Form (Complaint) against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the remaining sum of $23,520.61 for the installation of cabinetry in a new home construction project.

Complainant’s October 29, 2021 proposal contract totaled $107,041.23, with 50% due at Order, 40% due at Delivery for installation, and 10% due on substantial completion. Respondent accepted the proposal on November 2, 2021.

Complainant was paid the 50% Deposit and $30,000.00 of the 40% Delivery, but has not been paid any further on the contract.

Multiple e-mails and texts went back and forth between the parties, including some repairs and adjustments. COVID and back orders played a role in some delays.

On November 11, 2022, Complainant issued to Respondent a final invoice for $23,520.61. On December 14, 2022, Complainant issued a past due invoice and on December 23, 2022, counsel for Complainant sent Respondent a demand letter.

Respondent filed a response to the Complaint on May 1, 2023.

After Complainant requested an administrative hearing, on May 8, 2023, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10).

Respondent filed an Answer on May 16, 2023.

The matter was not resolved informally between the parties.

At hearing, Ms. Nance testified regarding the details and specifics of the cabinetry order and, generally the installation, including efforts to make adjustments and re-do portions of work in the kitchen. Ms. Nance noted that after the final cabinetry glass material was delivered, Respondent did not allow them to complete the installation work.

At hearing, Mr. Bartholomew testified that, as the work progressed, there were issues with inaccurate measurements that interfered with the planned crown molding and that he lost trust in Complainant’s abilities to have been able to do the work and to complete the work. Respondent stated he believed that Complainant had neglected to take into account that drywall was going to be installed. Respondent asserted that multiple issues had to be fixed and that the cost of these repairs and work were higher than the amounts remaining unpaid to Complainant.

At hearing, Complainant agreed that they had not given Respondent a credit for cabinet knobs/pulls in the amount of $1,450.00. At hearing, Complainant recalculated the unpaid amount with a credit; however, the final figure quoted at hearing was a figure calculated “with interest from December [2022] to July [2023].”

At hearing, Respondent did not assert that it lacked the capacity to pay the $23,520.61 amount Complainant had asserted was due as stated on Complainant’s final invoice/statement.

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 $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 Respondent owed a remaining total of $23,520.61 for the cabinetry contract and that Complainant agreed to a further credit in the amount of $1,450.00, the application of which would result in a remaining balance due to Complainant of $22,070.61.

Respondent did not file a complaint with the Registrar regarding the alleged workmanship issues concerning Complainant’s cabinetry contract and installation work.

The only issue remaining is whether Respondent demonstrated the statutory justification or excuse for failing to issue payment to Complainant. Respondent failed to establish by a preponderance of the evidence that it lacked the ability to pay Complainant for the work performed or that it had not received sufficient payment for the particular construction work project or operation for which Complainants services rendered. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(10) by failing to pay Complainant $22,070.61 for services and 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 Real Exquisite Estates and Properties LLC’s License No. 240880 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $22,070.61 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $22,070.61 in certified funds, the Registrar may close the Complaint in Case No. 2023-04400.-54864001

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-137160-45720000

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, August 6, 2023.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Martín Quezada, Registrar

Registrar of Contractors

[email redacted]

Real Exquisite Estates and Properties LLC

ATTN: Monty Bartholomew

4729 E Sunrise Dr.

PMB 245

Tucson, AZ 85718

[email redacted]

Russell E. Krone, Esq.

Thompson Krone PLC

3430 East Sunrise Dr., Ste 110

Tucson, AZ 85718

[email redacted]

By: OAH Staff