ALJDEC - Licensing

2023A-08464-CHC-ROC · Registrar of Contractors · 2023-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Elonica Julia Poggi

COMPLAINANT,

v.

Moran Pro Services LLC

License No. ROC 342982,

RESPONDENT.

No. 2023A-08464-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 27, 2023

APPEARANCES: Complainant Elonica Julia Poggi represented herself. Bryan Moran represented Moran Pro Services LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On October 5, 2023, the Registrar of Contractors (ROC or Registrar)

issued a Notice of Hearing setting the above-captioned matter for hearing on November 27, 2023, by the Office of Administrative Hearings (OAH) in Phoenix, Arizona.

2. Respondent Moran Pro Services LLC (Respondent) holds license number

342982 issued by the ROC.

3. The Notice of Hearing shows that the hearing was set to consider the

charges made in the Citation and Complaint. Through the Citation, the ROC alleges that Respondent may have violated Arizona Revised Statutes (A.R.S.) sections 32- 1154(A)(3) and (22); Arizona Administrative Code R4-9-108(A).

4. The Citation shows that if the Administrative Law Judge finds that the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.

5. On or about June 7, 2023, Complainant Elonica Julia Poggi (Complainant) and Respondent entered into a residential construction contract for the amount of $1,300.00. The agreement between the parties provided that Respondent would perform the following work:

Demo and remove ceiling and duct work throughout the house, reframe. Includes drywall repair and painting on where duck is taking out.

Errors in original.

6. On or about June 14, 2023, Respondent started work on

Complainant’s home.

7. On or about June 23, 2023, Respondent stopped work.

8. On or about July 25, 2023, Complainant filed a complaint with the ROC alleging poor work and abandonment on the part of Respondent.

9. On or about August 10, 2023, ROC Investigator Daniel Edwards conducted a job-site inspection.

10. On or about August 18, 2023, the ROC issued a Directive to Respondent. The Directive provided, in relevant part, as follows:

Dear Respondent:

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 September 8, 2023.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons1, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

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

Compliance Item: 2 - Some areas do not have paint

Investigator’s Observation: Substantiated, numerous areas throughout the home where respondent performed drywall work have not been painted. Per the 6/7/2023 estimate provided to the complainant, scope of work included "drywall repair and painting on where duct is taking out." Respondent shall finish painting all areas per contract.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 3 - The textures do not match throughout the home

Investigator’s Observation: Substantiated. Parties acknowledge a verbal change order was to include texture work at areas where drywall was patched. Many areas where drywall patching occurred either lack any texture whatsoever or are a different texture than the surrounding areas. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 4 - Some areas the mud is buckling out.

Investigator’s Observation: Multiple air conditioning vents in the ceiling were relocated and areas where respondent performed patching appear to be failing; drywall used to patch these openings is buckling out and require corrective action. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 5 - Some areas are cracking Investigator’s Observation: Various wall patches exhibit severe cracking of the drywall joint compound which should be corrected by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 7 - Some areas the mud is too thin.

Investigator’s Observation: Substantiated, drywall tape is visible in many areas where drywall was patched. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 9 - Some areas there are big globs of texture.

Investigator’s Observation: Substantiated, numerous rooms have large globs of joint compound stuck to the walls adjacent to areas where respondent performed drywall work. Door opening leading from the kitchen to the front office has excessive amounts of texture along the corners of the door opening which is poor in appearance. Respondent shall correct by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Compliance Item: 10 - Some areas there are gaps in the drywall.

Investigator’s Observation: Substantiated, numerous areas where ceiling/wall repairs took place exhibit gaps between the walls and ceiling and should be corrected by appropriate means.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

..............................................

11. Respondent did not correct the items listed in the Directive by September 8, 2023.

12. On September 13, 2023, the ROC issued a Citation against Respondent’s license for an alleged violations of Arizona Revised Statutes (A.R.S.) 32-1154(A)(3) and (22); Arizona Administrative Code R4-9-108(A).

13. Respondent filed a timely answer to the Citation.

14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

15. At hearing, Complainant testified on behalf of herself. Bryan Moran testified on behalf of Respondent. Investigator Edwards testified consistently with his job-site inspection notes and the Directive.

16. Complainant explained that Respondent performed poor work. Mr. Moran contended that the items listed in the Directive were not in the scope of the contract.

Mr. Moran stated that the only work left remaining on the project was “touch up” work.

17. Upon review of the evidence presented at hearing, the ALJ finds that the Directive was within the scope of the contracted work.

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 Administrative Law Judge may consider Registrar’s administrative

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

4. 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).

5. 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 342982 of Moran Pro Services LLC shall be suspended for three days.

It is further recommended that the Registrar require Respondent to pay the sum of 250.00 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.

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, December 15, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

Registrar of Contractors

Tom Cole

Registrar of Contractors

c/o Legal Department

[email redacted]

Moran Pro Services LLC

[email redacted]

Daniel Edwards

[email redacted]

Elonica Julia Poggi

[email redacted]

By: OAH Staff