ALJDEC - Licensing
2024A-00104-CHC-ROC · Registrar of Contractors · 2024-10-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Richard John Seracka
COMPLAINANT,
v.
AP Fiberglass Pools & Consulting, LLC
License No. ROC 323411
RESPONDENT.
No. 2024A-00104-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 20, 2024
APPEARANCES: Richard John Seracka (Complainant) represented himself. No one appeared on behalf of AP Fiberglass Pools & Consulting, LLC (Respondent).
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
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FINDINGS OF FACT
1. On August 19, 2024, the Arizona Registrar of Contractors (Registrar) mailed a Notice of Hearing to Complainant and Respondent at their addresses of record, setting the above-matter for hearing on October 3, 2024 at 9:00 AM. The Notice of Hearing provided, in relevant part, as follows:
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You must attend this hearing. This is an adversarial hearing before an administrative law judge, and is conducted in a similar manner as judicial proceedings. Thus, you must be prepared to present evidence, including witness testimony and documents, in support of your case.
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The complaint and citation allege that the Respondent committed the following act(s): Charge: 1 A.R.S. § 32-1154(A)(3) - R4-9-108(c) Charge: 2 A.R.S. § 32-1154(A)(22)
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Because Respondent is a licensee and is charged with an act(s) or omission(s) that is cause for the suspension or revocation of a license, Respondent is a party to this case and will be a party to the hearing. Because Complainant alleged Respondent committed an act(s) or omission(s) that is cause for the suspension or revocation of a license, Complainant is a party to this case and will be a party to the hearing. Respondent and Complainant, as the parties to the hearing, will present evidence and argument to the administrative law judge.
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2. A hearing was held on September 20, 2024.
3. No one appeared on behalf of Respondent at the hearing on September 20, 2024. Although the hearing did not start until approximately 9:15 p.m., no one appeared on behalf of Respondent through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.
4. On or about February 8, 2021, Complainant and Respondent entered into a contract wherein Respondent would install a new pool at Complainant’s residence, for the amount of $65,000.00. Complainant paid Respondent $59,700.00 pursuant to the contract.
5. On or about March 5, 2023, Respondent started work.
6. On or about June 6, 2023, Respondent stopped work.
7. On or about January 11, 2024, the Registrar received a complaint from Complainant alleging abandonment and poor work on the part of Respondent.
8. The Registrar assigned the complaint to one of its investigators, Joey Chester (Investigator Chester).
9. On or about February 5, 2024, Investigator Chester conducted a job-site inspection.
10. On or about February 12, 2024, the Registrar issued a Directive to Respondent directing Respondent to correct the following complaint items by appropriate means, no later than 5:00 p.m. on March 8, 2024:
Complaint Item 1: Pool has a Major Leak, AP attempted to repair this on four (4) separate visits. Pool losses on average 8-9” or more of water per week Throughout the Summer and continuing to now, monthly water usage has increased by more than 35%+ because of this leak.
Investigator’s Observation: At time of inspection, ground was saturated from previous rains and no deficiency observed or demonstrated, however in the spirit of good customer relations Respondent to look again at pool. Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 3: Both Fountains continue to mis-operate Leaking water from sides, Annoying “sucking” sound (not pleasant trickle flow) from faulty drains improper suction
Investigator’s Observation: At the time of inspection one of the fountains was making sound but was not filled with water as other fountain was, respondent to verify both sides fill with water appropriately.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
Complaint Item 8: Cove cement is deteriorating, falling into pool Investigator’s Observation: At time of inspection, there were multiple areas of missing cove cement, respondent to fix by 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 9: Pool light is not operating since your third (3rd) repair visit for the ongoing leaks
Investigator’s Observation: At time of inspection, the light would not illuminate, respondent to fix by appropriate means.
Governing Rule: ARS §32-1154 (A) (3), namely R4-9-108, Poor work not performed in accordance with professional industry standards.
11. Respondent failed to correct the Directive items by the due date.
12. On or about March 18, 2024, the Registrar issued a Citation against
Respondent’s license alleging that Respondent violated Ariz. Rev. Stat. § 32-1154 (A)(3), namely A.AC. R4-9-108(c) and Ariz. Rev. Stat. § 32-1154 (A) (22).
13. Respondent filed a timely answer to the Citation.
14. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
15. At hearing, Complainant testified on behalf of himself. Investigator Chester testified consistently with his job-site inspection notes and the Directive. Investigator Chester clarified that clarified that he was not alleging that Respondent violated any building code. Investigator Chester stated that the Citation should have referenced A.AC. R4-9-108(A) instead of A.AC. R4-9-108(C).
16. Complainant explained that Respondent performed poor work and never returned to correct its work.
17. At hearing, Complainant testified on behalf of herself.
18. Administrative notice is taken of Respondent’s disciplinary history as
Shown on the Registrar’s public website on October 10, 2024. Respondent’s license record shows that its license is revoked. Respondent’s license record shows that there are two open complaints against Respondent’s license. Respondent’s license record shows that 19 complaints have resulted in discipline against Respondent’s license and 6 complaints were settled by Respondent.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
The revoked status of Respondent’s license does not deprive Complainant
of its right to prosecute its complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. This dispute lies within the Registrar’s jurisdiction to resolve.
To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).
The preponderance of the evidence shows that Respondent has not violated A.A.C. R4-9-108(C).
The preponderance of the evidence established that Respondent did not perform the pool installation project in a professional and workmanlike manner in violation of A.A.C. R4-9-108(A), and thereby of A.R.S. § 32-1154(A)(3).
6. The preponderance of the evidence shows that Respondent failed to
correct the items listed in the Registrar’s Directive without valid justification, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. 323411 of AP Fiberglass Pools & Consulting LLC, be revoked.
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, October 10, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Richard John Seracka
[email redacted]
AP Fiberglass Pools & Consulting LLC
[email redacted]
By: OAH Staf