ALJDEC - Licensing
2023A-07351-NPC-ROC · Registrar of Contractors · 2023-10-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Exterior Tech Services LLC,
COMPLAINANT
v.
Pro Home Services LLC
DBA: Luxe Outdoor Environments
License No. ROC 296490,
RESPONDENT
No. 2023A-07351-NPC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 18, 2023
APPEARANCES: Jose Munoz represented Complainant Exterior Tech Services LLC. Jennifer Daniels represented Respondent Pro Home Services LLC, doing business as Luxe Outdoor Environments. Josh Daniels was a witness on behalf of Respondent.
ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio
FINDINGS OF FACT
Pro Home Services LLC, doing business as Luxe Outdoor Environments, (Respondent) is the holder of License No. 296490 issued by the Registrar of Contractors (Registrar).
On June 8, 2022, the parties exchanged text messages which negotiated the scope of work for installation of tile and flooring in multiple rooms.
On June 21, 2022, final terms for the scope of work involved in the install included all flooring at a cost of $30,000.00.
On June 27, 2022, the parties contracted for the installation of tile throughout all major rooms of the home. An initial deposit of $5,000.00 was paid to Respondent.
On July 5, 2022 Complainant sent Exterior Tech Services LLC (Respondent), invoice #1343 which included charges for labor installation of tile and all flooring. While the invoice was dated July 5, 2022, the payments portion indicated payments made by check on June 27, 2022 in the amount of $5,000.00, July 5, 2022 in the amount of $12,000.00, and notably August 5, 2022 in the amount of $13,000.00. The materials were purchased and provided by Respondent.
On July 25, 2022, the parties discussed the scope of work regarding invoice #1343 and Complainant confirmed the bathroom floors were included in the $30,000.00 invoice.
On or about August 5, 2022, Complainant completed the work for invoice #1343 and Respondent paid Complainant immediately by check in the amount of $13,000.00.
On or about August 18, 2022, Complainant sent Respondent invoice #1360 for labor of installation of tile in a bathroom and shower. The total due on the invoice was $15,000.00. The materials were purchased and provided by Respondent. Respondent immediately paid the invoice in full by check.
On or about July 5, 2023, Complainant filed a complaint against Respondent with the Registrar which alleged that Respondent had failed to pay Complainant the sum of $5,800.00 for installation of flooring.
The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a Citation for Alleged Violation of Ariz. Rev. Stat. § 32-1154(A)(10).
At hearing, Respondent presented the testimony of Jennifer Daniels, owner of Complainant, and Josh Daniels, husband of Jennifer Daniels. Respondent’s Exhibits A through H were admitted. Complainant presented the testimony of Jose Munoz, owner of Complainant.
Mr. Munoz testified that the total due on invoice #1410 was $5,800.00. The parties were engaged in a large renovation project; Complainant was contracted by Respondent to install tile and flooring in several rooms. Mr. Munoz testified the work performed on invoice #1410, the basis for the complaint, was the result of a change order requested by Respondent. Sometime in early August 2022, Complainant sent its crew to install tile in a bathroom shower. Due to circumstances out of Respondent’s control, the shower drain was not moved; therefore, Complainant’s crew was unable to complete the shower tile. Mr. Munoz testified Complainant’s crew was redirected by Josh Daniels to complete flooring tile as to not waste the day. Mr. Munoz took said redirection as a change order; however, he testified he never submitted a change order form to Respondent. Mr. Munoz testified it was common practice for the parties to make verbal change orders. No invoice was sent regarding this alleged change order until April 15, 2023.
Ms. Daniels testified as to the pattern and practice of the parties when it pertained to invoicing. Ms. Daniels testified the parties would typically negotiate in person or via text message. Once the parties agreed to the scope of work an initial deposit was to be paid by Respondent and progress payments would be made. This pattern was evidenced by invoice #1343. Once the project was completed, a final invoice was paid. On the second invoice, #1360, the parties agreed no deposit was necessary and the invoice would be paid in full at completion. On the same date Complainant submitted its invoice, a check was given by Respondent for the total amount. The only invoice which did not follow the pattern was invoice #1410. Ms. Daniels testified no work was completed on or around April 15, 2023.
Mr. Daniels testified he handled on site communication with Complainant. Conversations which occurred between Mr. Daniels and Mr. Munoz on site were often discussed in direct text messages. The discussion on June 21, 2022, would become invoice #1343. Mr. Daniels confirmed with Mr. Munoz the scope of work included all flooring. In early August 2022, Mr. Daniels redirected Complainant’s crew to complete the flooring instead of the shower tile because of the drain issue to not waste the day. Mr. Daniels redirected Complainant’s crew because the materials for the flooring job had already been purchased and were on site.
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.
A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”
Ariz. Rev. Stat. § 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 failed to establish that Respondent owed a total of $5,800.00. Invoice #1410, the basis of the complaint, was for work on which Complainant was paid on invoices #1343 and #1360. First, the charges on invoice #1410 were for labor of flooring installation. Complainant alleged Mr. Daniels’ request to shift from shower tile install to flooring install constituted a change; however, there was no written change order between the parties. Second, the billing pattern for invoice #1410 did not match with the prior practices between the parties and specifically invoices #1343 and #1360. On invoice #1343, Complainant required a deposit and submitted an invoice before project completion. Respondent paid the invoice on the day of or shortly after the completion of the project. On invoice #1360, Complainant allowed Respondent to pay in full on completion and once again Respondent paid the invoice on the date of completion. On invoice #1410, Complainant did not submit the invoice until nearly a year after the completion of the project. There is no dispute Complainant’s crew installed the flooring in early August, however, the delay in billing evidences doubt regarding whether the work was based on a change order to invoice #1343. Third, Mr. Daniels testified the materials were purchased and on site on the date Complainant’s crew was to install the shower tiles. This undermines Complainant’s allegation a change order was executed because no new materials were purchased. This confirmed the June 25, 2022, discussion during which the parties agreed to the installation of all flooring per invoice #1343. Mr. Daniels redirected Complainant’s crew from work on invoice #1360 and re-directed them to complete the work in invoice #1343. Thus, Respondent did not owe additional money as alleged by Complainant.
Therefore, Complainant failed to establish that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(10) by failing to pay Complainant $5,800.00 for services rendered in connection with Respondent’s contracting business.
RECOMMENDed order
Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar close Complainant Exterior Tech Services LLC’s complaint in Case No. 2023-07351.
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/ Brian Del Vecchio
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Exterior Tech Services LLC
[email redacted]
Pro Home Services LLC
DBA: Luxe Outdoor Environments
[email redacted]
By: OAH Staff