ALJDEC - Licensing

2023A-12104-CHC-ROC · Registrar of Contractors · 2024-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joanne Cacciatore,

COMPLAINANT

v.

AP Fiberglass Pools & Consulting LLC

License No. ROC 323411,

RESPONDENT

No. 2023A-12104-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 11, 2024

APPEARANCES: Complainant Joanna Cacciatore appeared via Google Meet. Jenna and Adam Pawlak appeared via Google Meet on behalf of Respondent AP Fiberglass Pools & Consulting, LLC. Investigator Brandon Smith appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

AP Fiberglass Pools & Consulting LLC. (Respondent) is the holder of License No. 323411 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 15, 2022, Joanna Cacciatore (Complainant) and David Decker agreed to have Respondent install a pool in their residence in Cornville, Arizona. The contracted amount was $91,200.00, and Complainant has paid $89,000.00.

On or about October 16, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Brandon Smith. The jobsite inspection was performed on November 6, 2023.

Investigator Smith then issued a written directive on or about November 6, 2023, 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 November 21, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Construction Started without a permit in place

Investigator’s Observation: Verified: Contacted Yavapai County and no permit was in place at the time of the inspection. Directive #1 comply with

Yavapai County Building, acquire required permits for the project.

Governing Rule: A.R.S. § 32-1154(A)(2)(b)

Compliance Item: 2 - Excavation in backyard left unsafe. No construction/safety fencing around excavation

Investigator’s Observation: VERIFIED: Jobsite left with open excavation. Industry Standard would dictate the use of a safety barrier around the excavated area for safety.

Respondent agreed to install safety fencing around pool site.

Governing Rule:

Compliance Item: 3 - Job is not being completed on the agreed upon time line. Abandonment

Investigator’s Observation: Abandonment: UNVERIFIED

Lack of Diligence and Prudence- VERIFIED

R4-9-108 (B): a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a Similarly licensed contractor possessing ordinary skill and capacity.

Respondent to provide the complainant with a timeline for the project

Governing Rule:

Compliance Item: 4 - Fiberglass pool was supposed to be delivered weeks ago.

Investigator’s Observation: VERIFIED: Pool has not been delivered.

Respondent advised parties at the JSI that his intention was to deliver the pool on 11/8/23.

Pool delivery and acquisition of permits are the next two stages needed to complete the project.

Governing Rule:

(All errors contained in the original)

On December 21, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); A.R.S. § 32-1154(A)(12) – A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about January 5, 2024, Respondent filed an Answer with the Registrar.

On or about February 28, 2024, a Notice of Hearing was issued setting a hearing on April 11, 2024, at the Office of Administrative Hearings, an independent state agency.

At hearing, Investigator Smith testified as to the Registrar’s involvement and the above timeline.

Investigator Smith testified that he initially closed the Compliant on December 4, 2023, as he believed that all items were taken care of as Respondent was in the process of obtaining the permit. However, on December 15, 2023, Investigator Smith received an email from Complainant about the permit payment failing to be remitted. Investigator Smith then was informed that Yavapai County notified Respondent of the payment error. Further, Investigator Smith testified that he contacted Yavapai County on April 10, 2024, and to date a final permit had yet to be issued.

Finally, Investigator Smith testified that he recommended the “(A)(3)” for failing to obtain the permit and for not having a site plan before excavation. Investigator Smith testified recommended “(A)(1)” for abandonment as the permit was not re-opened, and “(A)(2)(a)” because of the lack of permits. Investigator Smith also testified that Respondent was in violation of “(A)(12)” as the contract failed to contain an estimated completion date. And finally, Investigator Smith recommended the “(A)(22)” as Respondent failed to comply with the Directive.

David Decker testified that Respondent knew at least since November 30, 2023 that a soil test was needed, yet the same was not completed until February 22, 2024. Mr. Decker testified that the results were sent to Respondent on March 14, 2024, however, it appeared that Respondent failed to submit the same until April 9, 2024. Mr. Decker testified further that on the Yavapai County website it now appears as if there are two permits for the pool.

Jenna Pawlak testified on behalf of Respondent. She testified that based on her experience, Yavapai County’s permitting process is very erratic therefore when the additional information was requested, she waited until she had gathered all requested information, before submitting the same.

Ms. Pawlak also testified that the initial payment issues were due to an error on Yavapai County’s end and she worked to ensure that the correct amounts were paid so the permitting process could continue.

Further, Ms. Pawlak testified that her company typically waits until construction/excavation commences before obtaining a permit. Ms. Pawlak testified that for this job, excavation started in August.

Administrative notice was taken of Respondent’s prior License record on April 26, 2024. Such prior License record reflected that Respondent’s License No. 323411 was first issued on January 31, 2019, and reflected that there were fifteen open cases, one of which was the present complaint, 1 disciplined case and 4 resolved/settled cases. Further, Respondent’s License was suspended on April 26, 2024.

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 not only failed to initially obtain the permit but that the permit still has not been finalized at the time of the hearing. The tribunal does not find Ms. Pawlak’s testimony credible about when she applied for the permit as the evidence demonstrated that the permit was not applied until nearly three months after the excavation. Especially troubling is that if, as Ms. Pawlak testified, Yavapai County’s process was “erratic”, then it should have been her practice to apply for the permit as soon as possible to avoid any “erratic” issues. However, that did not happen here. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22)

The evidence also established that the contract failed to have the estimated completion date as required by statute. Therefore, Respondent is in violation of A.R.S. § 32-1154(A)(12) – A.R.S. § 32-1158.

However, based upon the evidence provided, although the permitting process was still incomplete at the time of hearing, Respondent proved that it continued to work on obtaining the same, albeit not as timely as Complainant would like. Therefore, the tribunal finds no violation of A.R.S. § 32-1154(A)(1).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 323411 for a period of thirty 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 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.

It is further recommended that Respondent provide an updated sample contract complying with A.R.S. §32-1158 within 30 days. Should Respondent fail to submit the same, the Registrar shall suspend Respondent’s license until Respondent complies with this requirement.

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, April 26, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Joanne Cacciatore

[email redacted]

AP Fiberglass Pools & Consulting LLC

[email redacted]

By: OAH Staff