ALJDEC decisions subject to certification as final

2020A-05709-CHC-ROC · Registrar of Contractors · 2021-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Kristen Michelle Ludlum,

COMPLAINANT,

v.

Phx Renovations LLC

License No. ROC 300467,

RESPONDENT.

No. 2020A-05709-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 28, 2021

APPEARANCES: Complainant Kristen Michelle Ludlum appeared on behalf of herself. No one appeared on behalf of Respondent Phx Renovations LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. Respondent Phx Renovations LLC holds license number 300467 issued by the Registrar of Contractors (Registrar).

2. Sean Pollard is Respondent’s qualifying party.

3. On or about September 28, 2020, Respondent agreed to remodel the bathroom in Complainant Kristen Michelle Ludlum’s master bedroom for the amount of $12,963.16.

4. Ms. Ludlum paid Respondent $6,481.58 in the form of a deposit.

5. On or about November 17, 2020, Respondent began work on

Ms. Ludlum’s home. Respondent stopped work the same day.

6. On or about December 7, 2020, Ms. Ludlum filed a complaint with the Registrar alleging incomplete work and unprofessional conduct on the part of Respondent.

7. On or about December 30, 2020, Investigator Daniel Edwards conducted a job-site inspection. Investigator Edwards observed that the only work performed on Ms. Ludlum’s bathroom was the demolition of the shower and Ms. Ludlum could not use her bathroom.

8. On December 30 2020, Investigator Edwards issued a Directive against Respondent’s license. Through the Directive, the Registrar directed Respondent to “finish the [master bath remodeling] project per contract, acquire any permits and inspection approval which may be required” by January 29, 2021. See id.

9. Respondent failed to comply with the Directive by January 29, 2021.

10. On February 1, 2021, Investigator Edwards conducted a compliance job-site inspection and discovered that Respondent had performed no additional work on Ms. Ludlum’s home.

11. On February 8, 2021, the Registrar issued a Citation against Respondent’s license. Through the Citation, the Registrar alleges that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(2), Ariz. Rev. Stat. section 32-1154(A)(3)(specifically, Ariz. Admin. Code section R4-9-108(a); and Ariz. Rev. Stat. section 32-1154(A)(22). 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 Respondent.

12. On or about February 23, 2021, Respondent filed a timely answer to the Citation. Respondent expressed in his answer that his worker quit the project and decided not to return. Respondent stated that he would provide a full refund to Ms. Ludlum no later than March 31, 2021. See id.

13. The matter was referred to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

14. On March 26, 2021, the Registrar issued a Notice of Hearing setting the above-captioned matter for hearing on April 28, 2021, by the OAH in Phoenix, Arizona.

15. A hearing was held on April 28, 2021.

16. Ms. Ludlum testified on behalf of herself. Investigator Edwards testified regarding his investigation of the complaint and the issuance of the Directive.

17. No one appeared on behalf of Respondent at the hearing on April 28, 2021. No one filed a request to appear telephonically on behalf of Respondent. Although the hearing did not start until approximately 1:10 p.m., no one appeared on behalf of Respondent through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.

18. Ms. Ludlum explained that Respondent failed to complete the project and abandoned the project. Respondent did not pay Ms. Ludlum a refund of her deposit.

19. Administrative notice is taken of Respondent’s prior License record as

reflected on the Registrar’s public website on April 29. 2021. Such prior License record reflects that Respondent’s License No. ROC 300467 was issued on November 10, 2015 and is currently suspended. Such prior License record shows that there is one open complaint against Respondent’s license. Such prior License record shows that two complaints have resulted in discipline against Respondent. Such prior License record also reflects that three complaints against Respondent’s license were resolved/settled/withdrawn.

20. Respondent’s disciplinary history and failure to appear for hearing are considered aggravating factors in the imposition of discipline.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

The suspended status of Respondent’s license does not deprive

Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction.

The Administrative Law Judge may consider Registrar’s administrative

record. See Ariz. Admin. Code § R4-9-118.

The preponderance of the evidence shows that Respondent abandoned the

project, which is a violation of A.R.S. § 32-1154(A)(1).

6. The preponderance of the evidence shows that Respondent’s work did not comply with the Registrar’s workmanship standards. 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(a), and thereby of A.R.S. § 32-1154(A)(3).

7. The preponderance of the evidence shows that Respondent failed to comply with the Directive without valid justification, which is a violation of A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. ROC 300467 of Phx Renovations, LLC shall be suspended for five 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 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 A.R.S. § 32-1101(A)(7), unless Respondent tenders payment of any outstanding prior civil penalty.

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 days from the date of that certification.

Done this day, April 28, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors