ALJDEC - Licensing

2023A-07123-NPC-ROC · Registrar of Contractors · 2023-10-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

R & C Plumbing LLC,

COMPLAINANT

v.

Quality Paint & Restoration LLC

License No. ROC 318018,

RESPONDENT

No. 2023A-07123-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 26, 2023

APPEARANCES: Complainant R & C Plumbing LLC was represented by Patricia Premeau. Doug Shobe, Owner and Qualifying Party, appeared on behalf of Respondent Quality Paint & Restoration LLC.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Quality Paint & Restoration LLC (Respondent) is the holder of License No. 318018 issued by the Registrar of Contractors (Registrar).

On or about June 23, 2023, R & C Plumbing LLC (Complainant) filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the sum of $6,704.91 for services rendered.

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10).

Tracey Serenka, Office and Account Manager, testified that the total due to Complainant was $6,704.91. Ms. Serenka stated that the parties had a prior pattern and practice that invoices would be submitted on a time and materials basis. Ms. Serenka noted that some projects were bid for specific amounts, but if a bid were not in place for a project, such as the one at issue in this matter, the parties understood it to be a time and materials contract. Ms. Serenka admitted there was no written contract between the parties as they generally operated on an oral contract basis. Ms. Serenka noted that several efforts were made to collect the monies owed and Respondent did not raise any objections to the work outlined or the balance listed as owed until Respondent filed an answer to the Citation in this matter.

Mr. Shobe testified that Complainant quoted Respondent $3,500.00 for the project, but did not finish the bathtub installation in the primary bathroom, which had been quoted at $500.00. Therefore, Mr. Shobe concluded Respondent owed Complainant $3,000.00 on the project in total and admitted Respondent owed Complainant $1,129.99 for service calls, bringing the total amount Respondent owed Complainant to $4,129.99. Ms. Shobe did not provide a copy of the quote he asserted Complainant provided to Respondent with respect to the project.

Respondent did not assert that it lacked the capacity to pay the amount Complainant asserted was due.

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 total of $6,704.91 for services rendered.

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 $6,704.91 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 Quality Paint & Restoration LLC’s License No. 318018 issued by the Registrar until it has provided to the Registrar, and the Registrar has accepted, documents that establish that it has paid Complainant $6,704.91 in certified funds.

It is further recommended that when and if the Registrar receives and accepts Respondent’s evidence that it has paid Complainant $6,704.91 in certified funds, the Registrar may close the Complaint in Case No. 2023-07123.

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, October 10, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Quality Paint & Restoration LLC

[email redacted]

Patricia A Premeau

Nearhood Law Offices, PLC

[email redacted]

By: OAH Staff