ALJDEC - Licensing

2023A-12475-CHC-ROC · Registrar of Contractors · 2024-04-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Debra and Mark Dallman ,

COMPLAINANT,

v.

AP Fiberglass Pools & Consulting LLC

License No. ROC 323411,

RESPONDENT.

No. 2023A-12475-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 29, 2024.

APPEARANCES: Debra and Mark Dallman appeared on their own behalf. Jenna and Adam Pawlik, members, appeared on behalf of AP Fiberglass Pools and Consulting, LLC.

ADMINISTRATIVE LAW JUDGE: Greg Hanchett

EXHIBITS ADMITTED INTO EVIDENCE: The entire administrative record comprised of pages attached to the notice of hearing (40 pages, not including the 7 page notice of hearing) was admitted into the record by stipulation of the parties.

Complainants Debra and Mark Dallman (Complainants) have alleged that Respondent AP fiberglass Pools and Consulting, LLC, (Respondent) violated A.R.S. § 32-1154(A)(1) (Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal) and A.R.S. § 32-1154(A)(22) (Failure to take appropriate corrective action without valid justification after receiving a written directive from the Registrar). Inspector James Carter, Debra Dallman, Jenna Pawlik and Adam Pawlik all testified at the hearing. Based on the testimony, evidence and argument adduced at hearing, the preponderant evidence establishes that Respondent violated A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(22) as demonstrated in the following findings of fact, conclusion of law and recommended decision.

FINDINGS OF FACT

1. At all times material to this matter, Respondent was an Arizona licensed contractor holding ROC license #323411.

2. On May 17, 2022, Respondent and Complainant entered into a written contract for Respondent to construct a fiberglass pool, decking for the pool, an additional 150 square feet of coating for an existing patio, and an additional 400 square feet of acrylic coating. The project called for Complainant to pay respondent a total of $81,000.00 for the construction which was to be paid as follows: $1,000.00 for pulling the project permit and a $24,000.00 payment as a manufacturer deposit for the fiberglass pool insert, an additional $50,000.00 upon the setting of the fiberglass insert, and a final payment of $6,000.00 at the completion of the project. The contract also provided that the project would start between April and May, 2023.

3. Complainant payed Respondent both the $1,000.00 cost of the permit and the $24,000.00 manufacturing deposit upon the execution of the contract.

4. The project did not begin on the estimated start date. The excavation which began the project did not commence until September, 2023. Prior to completing the excavation, Respondent required Complainants to pay an additional $25,000.00 on the contract. Thus, prior to the excavation, Complainants had already payed Respondent $50,000.00 on the project. In addition, Complainants had advised Respondent that Complainants did not want to have a situation where a large excavation hole had been dug in their backyard and then have the project remain uncompleted for 6 to 8 months with the large hole in their backyard. Testimony of Debra Dallman.

5. After the excavation had been completed, work again stopped. Complainants, now over 15 months since the contract had been entered into and over 3 months after the date the contract was estimated to begin, contacted Respondent on several occasions trying to get the work completed. Still, the work was not completed.

6. At one point, Complainants offered to terminate the contract if Respondent would refund the money that had been paid to them. Respondent refused to do this despite the delays and insisted that the project had to go forward to completion. Testimony of Debra Dallman.

7. Because no action had been taken to complete the project, Complainants filed a complaint with the Arizona Registrar of Contractors (ROC). The complaint alleged:

It has been 18 months and all that has been done is the excavation I do not know if a permit was pulled. The contractor has given several dates for starting and timelines, they are missed and the contractor initiates no communication. Before the contractor would excavate I was required to wire an additional 25,000 that was not called for in the contract until the set date. I have asked to see the permit and the receipt for the pool shell without any compliance by the contractor. I asked for a refund before the excavation and was told my only option is to pay the 25,000 and move forward with the excavation.

8. On November 2, 2023, the ROC assigned investigator James Carter to investigate the complaint. On November 15, 2023, he issued a jobsite inspection notice to the parties advising them that a jobsite inspection would be conducted on November29, 2023.

9. At the jobsite inspection on November 29, 2023, Carter confirmed that the project had not been completed despite the passage of 18 months since the signing of the contract. The only work completed on the project was the excavation of the hole some 2 and 1⁄2 months earlier. Carter specifically noted in his jobsite inspection notes that “[t]he Respondent will need to complete the job by the appropriate means, using an appropriately licensed contractor. The Respondent will correct any deficiencies required by the county/city, and pass final permit inspection.”

10. Respondent told Carter during the jobsite inspection that Respondent still had 12 to 14 weeks necessary to complete the job. Because of this, before issuing a corrective work order, Carter requested that Respondent provide a timeline to Carter that would allow Respondent sufficient time to complete the job.

11. On December 1, 2023, Respondent provided a timeline necessary to complete the installation of the fiberglass pool. Respondent indicated that the fiberglass insert would be delivered to the jobsite between December 15th and December 18th. The sand needed to set the fiberglass insert into the hole would be delivered prior to the delivery of the insert. Carter advised Respondent that he would be out of the office from December 28, 2023 to January 5, 2024 and that if any problems arose Respondent should contact Carter prior to December 28th.

12. After receiving Respondent’s input, Carter issued his corrective work order to Respondent on December 5, 2023 which verified the complaint. The order provided that Respondent must complete the corrective work no later than January 5, 2024. The corrective order also informed Respondent that the complaint had been verified and “The Respondent will need to complete the job by the appropriate means, using an appropriately licensed contractor” and “correct any deficiencies required by the county/city, and pass final permit inspection.”

13. Also on December 1, 2023, Complainant via email to Respondent proposed a change order that would reduce the job to simply installing the pool with no installation of decking and none of the other work the parties had contracted for. This would reduce significantly the amount of work Respondent needed to do on the project.

14. Respondent did not respond to the proposed change order until it emailed Complainants on January 16, 2024. In the email, Respondent indicated that it would only agree to the proposed change order if Complainants agreed to accept delivery of the sand and the backfill on January 17th and pool delivery on January 18th. Respondent also wanted an increase in markup to 14.5% and also indicated that if Complainants did not agree, Complainants would have to pay the entire amount agreed upon on the original contract. Testimony of Debra Dallman. Complainants did not accede to Respondents’ January 16th email demands.

15. The corrective work was not completed by the January 5, 2024 deadline. Instead, Carter received an email from Respondent on January 5, 2024 indicating that one of the Respondent’s members had been sick. Respondent advised Carter that the pool would now be delivered by January 15, 2024. Understandably, Complainants were not happy about the additional delay but Complainants apparently did not object and Carter informed Respondent that the additional delay would be permitted.

16. On January 16, 2024, Respondent emailed Carter to indicate that the sand needed to set the fiberglass pool would be delivered to Complainant’s home on January 17, 2024, pushing the project back for yet a third time. Carter informed Complainants that the sand would be delivered on the 17th.

17. On January 17, 2024, Carter received a call from Complainants indicating that no sand had been delivered and that they had to leave their home for a while and would not be present for the delivery of the sand. Carter called Respondent and left a message. When Respondent did not return Carter’s call, Carter issued Respondent the citation for abandonment and failure to correct after having been issued a corrective work order.

18. Administrative notice was taken of Respondent’s prior License record on April 12, 2024. Such prior License record reflected that Respondent’s License No. 323411 was first issued on January 31, 2019, and reflected that there were eighteen cases, one of which is the present complaint, 1 disciplined case (suspended) and 4 resolved/settled cases.

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

2. 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.” Respondent bears the burden of proof to prove a legal justification for its failure to complete the project.

3. The preponderance of the evidence established that Respondent abandoned or refused to perform the project without legal excuse. The contract called for the project to begin in April or May, 2023. Excavation was not undertaken until September, 2023 and, despite an additional down payment of $25,000.00 over and above the down payment provided upon execution of the contract as well Complainants’ repeated inquires as to what was happening with the project, Respondent still did not proceed with the project. Respondent failed to prove at hearing any valid legal justification for not doing so. Complainant has established that Respondent violated A.R.S. § 32-1154(A)(1).

4. The evidence also established that Respondent did not attempt to undertake the corrective work following the December 5, 2023 directive being issued. Respondent was given three different opportunities to do so but failed to do so.

5. At hearing, Respondent seemed to contend that part of the problem was that Complainant would not accept Respondent’s January 16th response to Complainant’s December 1, 2023 proposal for a change order that would have resulted in less work for the Respondent. Respondent’s position is not tenable. The proposed change order had no impact on the directive to set the fiberglass pool insert by a certain date as the proposed change order would not affect that part of the parties’ agreement. Indeed, if it had been such a concern for Respondent, Respondent would have responded to Complainants’ proposed change prior to issuance of the directive.

Moreover, there is no evidence that Respondent mentioned to the inspector prior to the issuance of the December 5th corrective order anything about the proposed change order causing a delay in completing the work prescribed by the directive. Respondent most certainly would have mentioned the change order to the inspector had the change order created a material impediment to completion of the corrective work. Complainant has established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).

6. Respondent’s disciplinary history, which is extensive and has been garnered in the relatively brief period of time of just two years (2022 to 2024), in conjunction with the facts of the instant case, militate in favor of a thirty (30) day suspension.

RECOMMENDED DECISION

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 (30) 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 (30) 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.

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 12, 2024.

/s/ Greg Hanchett

Chief Administrative Law Judge

Transmitted electronically to:

Tom Cole, Cabinet Executive Officer/Executive Deputy Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

AP Fiberglass Pools & Consulting, LLC

P.O. Box 12157

Scottsdale, AZ 85267

[email redacted]

Debra Mark Dallman

18420 W. Pasadena Ave.

Litchfield Park, AZ 85340

[email redacted]

By: OAH Staff