ALJDEC - Licensing
2022A-07463-CHC-ROC-RES · Registrar of Contractors · 2023-02-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Tom McLean,
COMPLAINANT
v.
Manning Industries LLC
DBA: Arizona Concrete Coatings,
License No. ROC 197669,
RESPONDENT
No. 2022A-07463-CHC-ROC-RES
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 9, 2023
APPEARANCES: Complainant Tom McLean appeared on his own behalf. Registrar of Contractors Investigator Albert Bernal appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
FINDINGS OF FACT
Manning Industries, Inc. (Respondent) is the holder of License No. 197669 issued by the Arizona Registrar of Contractors (Registrar).
On or about March 17, 2021 Tom McLean (Complainant) agreed to have Respondent place an epoxy coating on his garage floor surface. The total cost was $2,835.75.
On or about August 30, 2022, the Registrar received a Complaint containing one item against Respondent from Complainant alleging poor work with respect to project.
The Registrar assigned the complaint to Investigator Albert Bernal. The jobsite inspection was performed on September 29, 2021.
Investigator Bernal then issued a written directive on or about October 5, 2022, to Respondent that provided as follows:
After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. 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 October 21, 2022.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Compliance Item: 1 - Garage floor with polyaspartic polymer coating is peeling and not bonding to the concrete. Coating has a warranty for the life of the garage. company not honoring the warranty
Investigator’s Observation: I was shown two sections of the garage floor where the polyaspartic coating did not adhered properly to the concrete floor base and it was peeling off. These two areas were located within 4 to 5" apart. I noted that a concrete crack of approximately 4' in length ran directly underneath the area that is peeling off, and some kind of material was applied to fill it in. I also observed that the floor coating was bulging significantly over the area where the crack is located.
Respondent shall correct by the appropriate means.
Governing Rule: ARS §32-1154 (A) (3) namely R4-9-108, Poor work not performed in accordance with professional industry standards.
(All errors contained in the original)
On November 18, 2022, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); and A.R.S. § 32-1154(A)(22).
On or about November 29, 2022, Respondent e-mailed an Answer to the Registrar, stating that its business closed in June 2022, and was sold defective material by its supplier.
On or about December 16, 2022, a Notice of Hearing was issued setting a hearing on February 9, 2023, at the Office of Administrative Hearings, an independent state agency.
At hearing, investigator Bernal testified as to the Registrar’s involvement and the above timeline.
Investigator Bernal testified that Respondent failed to appear at the Jobsite Inspection. Further, Investigator Bernal testified that Respondent made no attempt to repair the garage floor once the Directive was issued, thus there was no compliance inspection.
As to the work, Investigator Bernal testified that there was a section of the overlay on the garage floor which was cracking and peeling off.
Tom McLean testified on his own behalf. He testified that Respondent had the best estimate and that the final project looked beautiful. However, about two months later in March 2021, there was some peeling on the step area in the garage. Mr. McLean testified that Respondent came right out and repaired the issue, and said that the material was not bonded properly to the step.
Mr. McLean then testified that in 2022, he noticed the peeling again this time towards the front/top end of the garage. He called Respondent who informed his that they would no longer abide by the warranty as there was a new owner, and wanted to charge $500.00.
Finally, Mr. McLean testified that he had another company come out to provide an estimate to make the repairs, but all estimates were greater than what he originally paid because the entire project would need to start from the beginning to ensure that the product would be properly applied.
The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.
Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.
Administrative notice was taken of Respondent’s prior License record on February 24, 2023. Such prior License record reflected that Respondent’s License No. 197669 was first issued on July 13, 2004, and was suspended as of August 1, 2022, due to non-renewal. The License record also reflected that there were two open complaints, one of which was the present complaint.
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 violations 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 Vazzano 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 established that Respondent’s work was not in conformity with the Registrar’s standards. As testified to by Investigator Bernal and Mr. McLean as well as the photographs taken during the jobsite inspection, the Polyaspartic coating was peeling off in areas on the garage floor. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).
The evidence established Respondent failed to complete the corrective work following the Directive being issued. Again as testified to by Investigator Bernal and Mr. McLean, no corrective work was performed. Even Respondent had closed its business, it still could have made some monetary settlement to help Complainant. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in 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, the Registrar shall revoke Respondent’s License No. 197669.
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 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.
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, February 24, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
Tom McLean
7362 E Edgewood Ave
Mesa, AZ 85208
[email redacted]
Manning Industries LLC
DBA: Arizona Concrete Coatings
20912 E Saddle Way
Queen Creek, AZ 85142
[email redacted]
By: OAH Staff