ALJDEC decisions subject to certification as final
2019A-05524-CHC-ROC · Registrar of Contractors · 2020-03-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Dawn M. Smith,
COMPLAINANT,
v.
AMPM Plumbing Services LLC,
ROC License: ROC 324892,
RESPONDENT.
No. 2019A-05524-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 9, 2020
APPEARANCES: Complainant Dawn M. Smith appeared on behalf of herself. Avery Scott appeared on behalf of Respondent AMPM Plumbing Services, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On February 5, 2020, the Registrar of Contractors, (Registrar),
issued a Notice of Hearing setting the above-captioned matter for hearing on March 9, 2020, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.
2. The Notice of Hearing shows that the hearing was set to consider the
charges made in the Citation and Complaint. Through the Citation, the Registrar alleges that AMPM Plumbing Services, LLC (AMPM) may have violated Ariz. Rev. Stat. section 32-1154(3) (specifically, Ariz. Admin. Code section R4-9-108); Ariz. Rev. Stat. sections 32- 1154(A)(2)(b),(9)(b),(12), (14), (16), (22); Ariz. Rev. Stat. section 32-1158.
3. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke the license of AMPM.
4. AMPM holds Plumbing License 324892 R-37R issued by the Registrar. AMPM does not hold any other Registrar licenses.
5. AMPM’s qualifying party is Avery Scott.
6. At all times relevant to this matter, Scott Moran was AMPM’s manager.
7. On or about September 5, 2019, Complainant Dawn M. Smith and AMPM entered into a residential remodeling contract. The project included tile work for a new shower pan and floors, a new vanity install, replacement of the front door and trim, a new man door into the garage, painting the inside an outside of the home, and exterior concrete work.
8. AMPM provided an invoice to Ms. Smith that included its license number. The heading on the invoice provided, “AMPM Home Services AMPM Plumbing Services LLC.”
9. The invoice was signed by Mr. Moran and Ms. Smith.
10. AMPM did not provide Ms. Smith with a written contract that advised
Ms. Smith of her right to file a complaint with the Registrar against AMPM for an alleged violation of Ariz. Rev. Stat. section 32-1154(A) within the time allowed by Ariz. Rev. Stat. section 32-1155(B).
11. On or about September 6, 2019, AMPM began work under the contract.
12. AMPM did not obtain a plumbing permit for the project.
13. On or about October 4, 2019, AMPM stopped work.
14. On or about November 5, 2019, the Registrar received a Complaint from Ms. Smith alleging poor workmanship and abandonment on the part of AMPM.
15. On or about November 26, 2019, Registrar Investigator Jack Grimm
conducted a jobsite inspection.
16. On December 10, 2019, Investigator Grimm issued a Directive.
17. The December 10, 2019 Directive provided, in relevant part, as follows:
After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on December 27, 2019.
DIRECTIVE REQUIREMENTS
You are hereby directed to remedy the following violations by the appropriate means:
1. Work related to plumbing installation on this project required a building permit.
*Obtain building permit and obtain necessary inspections and approvals from the governing code enforcement authority.
2. Complaint Item 2: Concrete is cracking and cuts made are chipped.
*Correct crack and poor patch at front of driveway near road. Note: Saw cut joints are acceptable.
3. Complaint Item 3: Concrete is not level.
*Correct unleveled and poorly installed concrete around water box at end of driveway on the right.
4. Complaint Item 4: Workers got concrete on my block wall which was not cleaned up.
*Correct (clean, remove) all concrete splatter on house, fence and any adjacent items. Remove all concrete debris from yard and on bushes.
5. Complaint Item 5: Footprint left on concrete.
*Correct locations of foot print on back patio concrete.
6. Complaint Item 6: Border bricks ruined with staining from concrete.
*Correct concrete staining on border bricks at front of home.
7. Complaint Item 9: Added at the inspection. RV gate is not hung correctly.
*Correct poorly hung RV gate at left side of home. Secure correctly and adjust for functionality.
8. Complaint Item 10: Added at the inspection. Back patio concrete is not sloped and holds water.
*Correct locations of concrete at back patio where water ponds. Concrete must have positive drainage.
ITEMS NOT REQUIRING CORRECTION
The following complaint items require no action by the Respondent:
1. Complaint Item 1: Bathroom – shower and bathroom floor tiles not laid correctly. Slope of shower floor unsafe pitch. Tile on shower walls not even and regular drywall was used.
*This complaint item was removed by others prior to the jobsite inspection.
2. Complaint Item 7: Workers abandon job in bathroom after we were told by them that all the work has had to be completely re-done.
*Unable to substantiate abandonment.
3. Complaint Item 8: Stop taking our calls and left us with a box of debris in our garage.
*Was not shown or observed stated debris.
.............................
18. AMPM failed to comply with the Directive.
19. AMPM filed a timely appeal to the Citation.
20. The matter was referred to the OAH for an evidentiary hearing.
21. A hearing was held on March 9, 2020.
22. At hearing, Investigator Jack Grimm testified regarding his investigation of the complaint, the job site inspections, and the issuance of the Directive.
23. Ms. Smith asserted that AMPM performed poor work when it remodeled her home. She also alleged that AMPM abandoned the project.
24. Mr. Scott asserted that Ms. Smith’s contract was with AMPM Home Services, and not AMPM. Mr. Scott stated that he did not believe that AMPM Home Services was licensed. Mr. Scott explained that Mr. Moran owned AMPM Home Services. However, Mr. Smith admitted that Mr. Moran was AMPM’s manager.
Mr. Scott stated that Ms. Smith paid AMPM Home Services for the work.
25. Mr. Scott explained that AMPM is only licensed to perform plumbing work. Mr. Scott performed plumbing work, installed bathroom sinks, and the shower door.
Mr. Scott stated he was not aware of the invoice, but he was aware that the project included work other than plumbing. Mr. Scott stated that he was not sure whether
Mr. Moran hired other people to perform the tile work.
26. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on March 30, 2020, AMPM’s license was first issued on June 25, 2019, and is active. Such prior License record also shows that there is only one open complaint against AMPM. AMPM’s license has never been disciplined. The lack of prior discipline taken is considered a mitigating factor in imposing discipline.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section 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 Respondent did not
obtain a plumbing permit for the project, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(2)(b).
The preponderance of the evidence shows that Respondent did not perform
the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32-1154(A)(3).
The preponderance of the evidence shows that Respondent attempted to
evade Ariz. Rev. Stat. Title 32, Chapter 10, by acting with a unlicensed person, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(9)(b).
6. The undisputed evidence established that AMPM’s contract did not include a statement that the property owner has the right to file a written complaint with the Registrar for alleged violations of Ariz. Rev. Stat. section 32-1154(A), which is a violation of Ariz. Rev. Stat. section 32-1154(A)(12) and Ariz. Rev. Stat. section 32-1158.
7. The preponderance of the evidence shows AMPM acted with an unlicensed
person, and in the capacity of a contractor under a license issued under Ariz. Rev. Stat. Title 32, Chapter 10, in a name other than as set forth upon the license, which is a violation of Ariz. Rev. Stat. section 32-1154 (A)(14).
8. The preponderance of the evidence shows that Respondent contracted
beyond the scope of its plumbing license, which is a violation of Ariz. Rev. Stat. section 32-1154 (A)(16).
9. The preponderance of the evidence shows that Respondent failed to comply with the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend License No. 324892 issued to AMPM Plumbing Services, LLC, for three days. It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 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 license, effective on such deadline date.
No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
Done this day, March 30, 2020.
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 is forty days after the date of that certification.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors