ALJDEC - Licensing
2023A-11692-CHC-ROC · Registrar of Contractors · 2024-03-18
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Victor Martinez
COMPLAINANT,
v.
AP Fiberglass Pools & Consulting LLC
License No. ROC 323411,
RESPONDENT.
No. 2023A-11692-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 27, 2024
APPEARANCES: Complainant Victor Martinez (Complainant) represented himself. Jenna Pawlak represented Respondent AP Fiberglass Pools & Consulting LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: None.
_____________________________________________________________________
1. Respondent AP Fiberglass Pools & Consulting LLC Holds License No. ROC 3323411 issued by the Arizona Registrar of Contractors (Registrar).
2. According to the Arizona Registrar of Contractors’ (“the Registrar’s”) public website, Jenna Pawlak is Respondent’s qualifying party.
3. On or about February 14, 2022, Complainant and Respondent entered into a pool construction contract.
4. On or about May 15, 2023, Respondent began work under the contract.
5. On or about September 6, 2023, Respondent stopped work.
6. On or about October 9, 2023, the Registrar received a complaint from Complainant alleging poor work on the part of Respondent.
7. On or about November 8, 2023, Registrar Investigator Doug Barrett conducted a job-site inspection.
8. On November 8, 2023, Investigator Barrett issued a Directive against Respondent’s license that 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 12-08-2023.
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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 reasons, 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: 1 – The work that is outstanding is the all around electrical and plumbing of the pool, the cool decking/tile around the pool and yard clean up from work done.
Investigator’s Observation: Verified. I observed the pool with the fiberglass shell in-ground and the plumbing mostly completed except for the skimmer and water auto-fill. I observed no electrical completed to the equipment or the pool. There was no decking/coping installed and the yard was full of dirt piles and holes
that had not been filled, compacted or graded. The Respondent stated the yard would be cleaned up at the end of the project. The Respondent also stated the City needs to inspect the plumbing and electrical prior to backfill. Contractor should complete the project by appropriate means per the contract.
Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108
Compliance Item: 2 – Summarized from complaint: Damage was done during excavation.
Investigator’s Observation: Verified. I observed the Ramada in the backyard and it was leaning to the left with damage to the right front post. The Ramada also had damage to the wrought iron fencing on three sides. There was damage to the south west patio column, damage to the west side roof/drip edge, and there was damage to the west side gate leaving it non-functional. The Respondent agreed to the damage being caused by his sub-contractor. The Complainant also pointed out cracking in the block wall grout but I am unable to determine the cause due to the age of the wall. Contractor should correct the damage by appropriate means except for the block wall.
Governing Rule: ARS 32-1154(A)(3) Poor Workmanship namely Rule R4-9-108
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9. On December 8, 2023, approximately 40 minutes before the Directive was scheduled to expire, Respondent requested an extension of the deadline for compliance under the Directive. Respondent expressed that it had secured subcontractors who could complete the job by January 1, 2023. Investigator Barrett denied the request because it was received on the day that the timeline for performance under the Directive was set to expire.
10. Respondent did not correct the items listed in the Directive by November 8, 2023.
11. On December 12, 2023, the Registrar issued a Citation that contained allegations that Respondent may have violated A.A.C. Rule 4-9-108(A) and Ariz. Rev. Stat. section 32-1154(A)(3); Ariz. Rev. Stat. section 32-1154(A)(22). The Citation shows that if the Administrative Law Judge finds that any of the alleged charges are valid, the Registrar may suspend or revoke Respondent’s license.
12. Respondent filed a timely appeal to the Citation.
13. The matter was referred to the Office of Administrative Hearings for an
evidentiary hearing.
14. At hearing, Ms. Martinez testified on behalf of himself. Investigator Barrett testified on behalf of himself. Ms. Pawlak testified on behalf of Respondent.
15. Investigator Barrett testified consistently with his job-site inspection notes. Mr. Martinez explained that Respondent performed poor work in connection with the pool construction contract. Ms. Pawlak explained that she experienced challenges acquiring the subcontractors needed to complete the corrective work.
16. Mr. Martinez denied receiving the December 8, 2023 e-mail from Respondent.
17. Administrative notice is taken of Respondent’s disciplinary history as shown on the Registrar’s public website on March 18, 2024. Respondent’s license record shows that its licensed was issued on January 31, 2019 and is currently suspended. Respondent’s license has never been disciplined by the Registrar. Such license record shows that there are 14 open complaints against Respondents license and four complaints were resolved or settled by Respondent.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
The suspended status of Respondent’s license does not deprive
Complainant of his right to prosecute the Complaint or prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction.
The burden of proof at an administrative hearing falls to the party
asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.
4. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.
5. 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).
6. The preponderance of the evidence does not show that Respondent failed to perform the work in a professional and workmanlike manner, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).
7. The preponderance of the evidence shows that Respondent failed to
correct the items listed in 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 ROC License: No. 3323411 held by AP Fiberglass Pools & Consulting 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 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.
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, March 18, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Victor Martinez
[email redacted]
AP Fiberglass Pools & Consulting LLC
[email redacted]
By: OAH Staff