ALJDEC decisions subject to certification as final

2016A-4358-ROC · Registrar of Contractors · 2017-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Ila Alexander,

COMPLAINANT,

v.

PMD Development LLC,

License No: 288234 and 288660

RESPONDENT.

No. 2016A-4358-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 22, 2017

APPEARANCES: Complainant Ila Alexander appeared on behalf of herself. No one appeared on behalf of Respondent PMD Development LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On December 4, 2015, Complainant Illa Alexander, (hereinafter “Ms. Alexander”), entered into residential home remodeling contract with Respondent PMD Development LLC, (hereinafter “PMD”). Under the contract, PMD agreed to install coating on Ms. Alexander’s garage, driveway, main walkway, side walkway and back patio.

2. The December 4, 2015 contract did not include PMD’s business address or a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of A.R.S. § 32-1154(A).

3. In December of 2015, PMD performed work on Complainant’s home.

4. On November 1, 2016, the Registrar received a complaint from Ms. Alexander alleging poor workmanship and abandonment on the part of PMD.

5. On December 7, 2016, Investigator Randy Cason, (hereinafter “Investigator Cason”), conducted a jobsite inspection.

6. On December 14, 2016, Investigator Cason issued a directive to PMD. The December 14, 2016 directive provides, in relevant part, as follows:

You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on 1/10/2017.

You are hereby directed to remedy the following violations by the appropriate means:

Complaint Item 1: “Crack in concrete coating material”

Crack in finish concrete coating surface starting from the outdoor BBQ running approx. 10’ to the East from the front of the BBQ

Complaint Item 2: “Obvious fit of deco drain and function issue”

All Deco drains still have tape covering the top of the drains. All Deco drains are uneven with concrete slab and are curving up in a few locations

Complaint Item 3: “Area where the concrete coating does not match rest of coating material”

South side of patio; next to deco drain and edge of patio slab

7. On January 13, 2017, Investigator Cason completed a compliance inspection.

8. Investigator Cason concluded that although PMD attempted to make repairs, its work did not meet minimum workmanship standards. Investigator Cason concluded that PMD did not comply with the directive.

9. On January 19, 2017, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3); A.R.S. § 32-1154(A)(12); A.R.S. § 32-1154(A)(22); and A.R.S. § 32-1158(B).

10. On March 20, 2017, Investigator Cason completed a prehearing inspection. Investigator Cason concluded that PMD’s work did not meet minimum workmanship standards. Investigator Cason also noticed that there were two new cracks in the concrete.

11. After PMD filed a written answer to the Citation and Complaint, denying any that there was cause to discipline its licenses, the Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

12. On March 22, 2017, an evidentiary hearing was held.

13. At hearing, Ms. Alexander testified that PMD performed unsatisfactory work on her home.

14. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on April 11, 2017, the Registrar has never before taken disciplinary action against PMD’s licenses. The lack of prior disciplinary action is considered as a factor in mitigation of the recommended penalties.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).

The preponderance of the evidence shows that the issues found by Investigator Cason constituted workmanship issues with the installation. Therefore, the Complainant established that Respondent did not perform the work in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.

The preponderance of the evidence shows that Respondent attempted to comply with the directive, but that all of the work was not completed and/or was not completed properly. Therefore, Complainant established that Respondent failed to comply with the directive without valid justification in violation of A.R.S. § 32-1154(A)(22).

The undisputed evidence established that PMD’s contract did not include its business address or a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of A.R.S. § 32-1154(A).

The preponderance of the evidence showed that Respondent violated A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend PMD Development LLC, License No: 288234 and License No: 288660 for a period of three (3) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).

It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s licenses, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty.

Done this day, April 11, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors