ALJDEC - Licensing

2023A-12317-CHC-ROC · Registrar of Contractors · 2024-06-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gina Lee ,

COMPLAINANT

v.

AP Fiberglass Pools & Consulting LLC

License No. ROC 323411,

RESPONDENT

No. 2023A-12317-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 28, 2024

APPEARANCES: Gina Lee appeared on her 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).

Gina Lee (Complainant) entered into a contract with Respondent for the construction of a new pool.

On or about October 24, 2024, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Patricia Schuette. After a jobsite inspection, Investigator Schuette 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 January 12, 2023.

DIRECTIVE REQUIREMENTS

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

Complaint Item: 5-They have building materials left unattended and scattered in our yard.

Investigator’s Observation: Verified. There are some materials left behind that could be cleaned up.

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

. . . . .

Complaint Item: 6-Our pool is a floating cesspit because we were told to fill it to a certain point and no one has come back. It is filthy and dangerous.

There is no security measures in place for the unattended pool and surrounding hole.

Investigator’s Observation: Verified. There appears to be no measures taken to secure area. Respondent stated that it was a part of the agreement

that the complainant secure the area but I have not documentation to support that at this time. Respondent should progress in a timely manner to shorten the amount of time area is exposed and a safety issue with the area that is not backfilled.

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

All errors contained in original.

After the deadline in the directive expired, Investigator Schuette was notified that only a small amount of progression had been made.

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(A); 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 A.M. on May 28, 2024. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. An April 10, 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 May 28, 2024.

Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Investigator Schuette testified consistently with her jobsite inspection report, her compliance jobsite inspection report, and her written directive. She further testified that at the time of compliance jobsite inspection, none of the building materials had been removed or corrected in any way and it appeared that some temporary safety fencing had been installed, but no other progression had occurred. Investigator Schuette further testified that in order for Respondent to have been in compliance with Complaint Item 6, Respondent would have needed to have backfilled the area, which is something Respondent stated it was going to do, but did not ultimately complete.

Complainant testified that she now had a bug infestation due to the condition of the area because Respondent never came back.

Administrative notice is taken of Respondent’s prior License record on May 28, 2024. Such prior License record reflects that Respondent’s License No. 323411 was first issued on January 31, 2019, and is currently revoked as of May 20, 2024. Such prior License record also reflects that there were 14 total open complaints, 2 prior disciplined complaints, and 5 resolved/settled complaints 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.

Respondent’s revoked license does not deprive Complainant of her right to prosecute her Complaint or prevent the Registrar from determining the merits of the Complaint.

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 established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established 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(A).

The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. 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, June 3, 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