ALJDEC - Licensing
2023A-12972-CHC-ROC · Registrar of Contractors · 2024-04-11
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
West Monnett
COMPLAINANT,
v.
AP Fiberglass Pools & Consulting LLC
License No. ROC 323411,
RESPONDENT.
No. 2023A-12972-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 22, 2024
APPEARANCES: Complainant West Monnett represented himself. Jenna Pawlak represented Respondent AP Fiberglass Pools & Consulting, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 through 6 and 8 through 35.
_____________________________________________________________________
FINDINGS OF FACT
1. On or about March 23, 2023, Respondent agreed to purchase and install a fiberglass pool at Complainant’s residence for the amount of $96,590.00. Pursuant to the contract, Complainant was required to pay a down payment in the amount of $29,000.00.
2. Complainant paid a down payment in the amount of $29,000 to Respondent.
3. The contract provided that the estimated start date for the project was October or November of 2023.
4. Respondent did not start construction under the contract.
5. Respondent did not provide Complainant with a written contract that advised Complainant of his right to file a complaint with the Registrar against Respondent for an alleged violation of Ariz. Rev. Stat. § 32-1154(A) within the time allowed by Ariz. Rev. Stat. § 32-1155(B).
6. On or about November 22, 2023, Complainant filed a complaint with the Arizona Registrar of Contractors (Registrar) alleging abandonment on the part of Respondent. Complainant also alleged that Respondent required a down payment in excess of the amount allowed under Arizona statutes.
7. The complaint was assigned to Registrar Investigator Gregory Johndrow.
8. After receiving the complaint, Investigator Johndrow left a voicemail message with Respondent’s phone number of record regarding the complaint. Investigator Johndrow sent a complaint acknowledgement letter to both parties hoping to obtain a response from Respondent. On January 3, 2024, Investigator Johndrow realized that he did not receive a response from Respondent. Investigator Johndrow called Complainant who conveyed to Investigator Johndrow that Complainant paid a deposit for the work, but no work was performed. Complainant sent an email to Investigator Johndrow explaining that although money was paid to Respondent, no work was performed. Investigator Johndrow did not receive response from Respondent.
9. On January 5, 2024, the Registrar issued a Citation against Respondent’s license alleging that Respondent violated Ariz. Rev. Stat. § 32-1154(A)(1) and Ariz. Rev. Stat. § 32-1154(A)(12); Ariz. Rev. Stat. § 32-1158.01.
10. Respondent filed a timely answer to the Citation.
11. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
12. A hearing was held on March 22, 2024.
13. At hearing, Complainant testified on behalf of himself. Respondent’s qualifying party, Jenna Pawlak, testified on behalf of Respondent. Investigator Johndrow testified regarding his investigation of the complaint.
13. Complainant explained that Respondent abandoned the contract. Complainant stated that the contract required a down payment of $29,000 and required work to start in October or December of 2023. However, Respondent never started work on the pool. Instead, Complainant explained that on November 3, 2023, Respondent asked for an additional $20,000 to cover the cost of the pool shell.
14. Mrs. Pawlak contended that Respondent did not abandon the project.
Mrs. Pawlak stated that Respondent agreed to contact Complainant in November or December of 2023 to start the project.
15. Administrative notice is taken of Respondent’s prior License record on April 11, 2024. Such prior License record reflects that Respondent’s license number 147144
was first issued on January 3, 2019, and is active. Such prior License record also reflects that there are 13 open complaints against Respondent’s license. Such prior License record shows that one complaint has resulted in discipline against Respondent’s license and two complaints were resolved or settled.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. sections 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A Ariz. Rev. Stat. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 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)
3. The Administrative Law Judge may consider Registrar’s administrative
record. See A.A.C. § R4-9-118.
4. The preponderance of the evidence shows that Respondent abandoned the pool contract, which is a violation of Ariz. Rev. Stat. § 32-1154(A)(1).
5. The undisputed evidence established that Respondent’s pool contract did not comply with Ariz. Rev. Stat. § 32-1158.01, which is a violation of Ariz. Rev. Stat. § 32-1154(A)(12).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend AP Fiberglass Pools & Consulting LLC’s License No. ROC 323411, for five 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. § 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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
It is further recommended that within thirty days of the effective date of the final order, Respondent shall provide to the Registrar copies of its form contract that has been revised to comply with the requirements of Ariz. Rev. Stat. § 32-1158.01. If Respondent fails to provide proof that it has so revised its form contracts, it is recommended that Respondent’s license be suspended until Respondent provides such proof.
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 11, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Gregory Johndrow
[email redacted]
AP Fiberglass Pools & Consulting LLC
[email redacted]
West Monnett
[email redacted]
By: OAH Staff