ALJDEC - Licensing

2023A-14311-CHC-ROC · Registrar of Contractors · 2024-05-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John Curtis ,

COMPLAINANT

v.

AP Fiberglass Pools & Consulting LLC

License No. ROC 323411,

RESPONDENT

No. 2023A-14311-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 26, 2024

APPEARANCES: Complainant 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 (Respondent) is the holder of License No. 323411 issued by the Arizona Registrar of Contractors (Registrar).

On or about August 9, 2021, John Curtis (Complainant) entered into a contract with Respondent for the construction of a new pool.

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

The Registrar assigned the Complaint to Investigator John Peru. After a jobsite inspection, Investigator Peru 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 5, 2024.

. . . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - "Pool Heater Not installed."

Investigator’s Observation: Verified,

At the time of this Inspection the Pool Heat Pump per contract has not been

installed. REF: (JSI PICS).

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

. . . . .

Compliance Item: 2 - "Auto Chlorinator not installed."

Investigator’s Observation: Verified,

At the time of this Inspection the Auto Chlorinator per contract has not been installed. REF: (JSI PICS).

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.

Following the issuance of the written directive, Respondent sent an email to Investigator Peru that it would reach out to Complainant to schedule a time to meet. After the deadline in the directive expired, Investigator Peru was notified no corrective work had been performed.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(1); 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 April 26, 2024. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. A March 13, 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 April 26, 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 Peru testified consistently with his written directive. He further testified that Respondent contacting him on the due date of the written directive indicated a lack of due diligence. Ultimately, he waited an additional two days before referring the matter to the Registrar’s legal department and Respondent still did not attempt to correct its work. The matter was referred to the Registrar’s legal department on February 7, 2024.

Complainant testified that he repeatedly reached out to Respondent in an attempt to work through the issues. Ultimately, Respondent had not fulfilled its contract and Respondent never returned, even after the issuance of the directive.

Administrative notice is taken of Respondent’s prior License record on April 29, 2024. Such prior License record reflects that Respondent’s License No. 323411 was first issued on January 31, 2019, and is suspended as of April 26, 2024. Such prior License record also reflects that there were 15 total open complaints, 1 prior disciplined complaint, and 4 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.

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 left the contract incomplete without legal excuse. Accordingly, Complainant established that Respondent abandoned the contract without legal excuse for the abandonment in violation of Ariz. Rev. Stat. § 32-1154(A)(1).

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 suspend Respondent’s License No. 323411 for a period of 5 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.

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, May 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