ALJDEC - Licensing

2023A-12316-CHC-ROC · Registrar of Contractors · 2024-07-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Armand Faggioni ,

COMPLAINANT

v.

AP Fiberglass Pools & Consulting LLC

License No. ROC 323411,

RESPONDENT

No. 2023A-12316-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 28, 2024

APPEARANCES: Armand Faggioni appeared on his own behalf. Respondent failed to appear.

ADMINISTRATIVE LAW JUDGE: Amy M. Haley

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Notice of Hearing packet and all of its documents contained therein.

_____________________________________________________________________

FINDINGS OF FACT

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

Armand Faggioni (Complainant) entered into a contract with Respondent for the construction of a pool at his home in Phoenix, Arizona.

On or about October 24, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

The Registrar assigned the Complaint to Investigator Joey Chester. After a jobsite inspection (JSI), Investigator Chester issued a written directive 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 February 9, 2024.

DIRECTIVE REQUIREMENTS

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

Complaint Item 3: Pipes on filter system needs to be painted;

Investigator’s Observation: Verified. The Respondent will need to correct this 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.

. . . . .

Complaint Item 4: Filter valves need to be labeled;

Investigator’s Observation: Verified. The Respondent will need to correct this 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.

. . . . .

Complaint Item 5: Gate latch broken by contractor was not repaired;

Investigator’s Observation: Verified. The Respondent will need to correct this 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.

. . . . .

Complaint Item 7: No documentation of completed permit inspections for swimming pool and block wall;

Investigator’s Observation: No documentation at time of inspection, respondent will have permits pulled and ready for inspection.

Governing Rule: ARS §32-1154 (A) (2) Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

. . . . .

Complaint Item 9: cover on the water fill is not working correctly. The lid is stuck and the whole unit comes out.

Investigator’s Observation: No violation was found, however in the spirit of good customer relations, respondent stated at inspection that they would repair insert.

Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.

Following the issuance of the written directive, Respondent corrected four of the five items on the written directive. After the deadline in the directive expired, Investigator Chester conducted a compliance JSI wherein he noted that Complaint Item 7 was not complete.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(C) and Ariz. Rev. Stat. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 9:00 AM on June 28, 2024. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A May 21, 2024 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet. The hearing was held via Google Meet on June 28, 2024.

Respondent did not request that the hearing be continued. Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Chester testified consistently with his written directive and JSI reports.

Complainant did not provide any additional testimony.

Administrative notice is taken of Respondent’s prior License record on July 1, 2024. Such prior License record reflects that Respondent’s License No. 323411 was first issued on January 31, 2019, and is currently revoked. Such prior License record also reflects that there were 13 other open complaints, 6 resolved/settled complaints, and 7 disciplined cases against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record was reasonable, and Respondent is deemed to have received notice of the hearing.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

The evidence did not establish that the work performed by Respondent occurred in a county, city or town that had not adopted building codes as the work was performed in Phoenix, Arizona. The evidence did not establish that the adopted building codes did not contain specific provisions applicable to the construction of a pool. Therefore, Complainant did not establish that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(C).

The evidence established that Respondent completed 4 of the 5 written directive Complaint items; however, Respondent failed to provide documentation of a completed permit inspection for the pool and block wall, as required in Complaint Item 7. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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. 323411.

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. § 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 Ariz. Rev. Stat. § 32-1101(A)(5), 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, July 17, 2024.

/s/ Amy M. Haley

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

By: OAH Staff