ALJDEC decisions subject to certification as final

08F-T1214-ROC · Registrar of Contractors · 2009-06-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 11, 2009; 9:00 a.m. APPEARANCES: Complainant Ms. Jacqueline Parker represented herself. Respondent The Solar Store, LLC, was represented by Mr. Eric Hawkins, Attorney-at-Law. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ The following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent The Solar Store, LLC is and during all time material hereto was a contractor licensed by and doing business in the State of Arizona, holding Class K-77 License number 164744. 2. Complainant purchased a new home in a subdivision in Tucson, Arizona in 2007. Respondent had installed the solar hot water heater in dozens of the homes in that neighborhood, including the solar hot water heater in Complainant’s home. 3. Complainant was dissatisfied with the performance of the hot water heater Respondent had installed in her home, and filed the instant Complaint with the Arizona Registrar of Contractors on April 7, 2008. The Complaint alleged that the hot water heater was producing insufficient amounts of hot water, and was underperforming in general. The Complaint acknowledged that Respondent’s workers had returned to the home and worked on the unit in response to Complainant’s requests, but not to the Complainant’s satisfaction. 4. The Complaint was assigned to Registrar of Contractors Inspector Greg Koeneman who conducted a job site inspection on May 14, 2008 in the presence of Complainant’s husband who also owns the home, and Respondent’s owner and employee. 5. Inspector Koeneman observed that the solar hot water heater was functioning properly during the job site inspection. He could detect nothing wrong with its installation or performance. He wrote and sent a letter to the parties dated May 15, 2008 informing them that he was requiring no action by the Respondent as he could not discover anything wrong with the hot water heater. He went on to note in the same letter that the Respondent had agreed to provide the Complainant documentation attesting to the system’s SRCC compliance. The SRCC is the Solar Rating and Certification Corporation. 6. Complainant was still unsatisfied with the system’s performance and requested an administrative hearing. 7. At the administrative hearing Complainant and her husband Mr. Scott Lee Parker testified. Respondent’s owner Ms. Katherine Kent testified. Also testifying for the Respondent was Mr. Paul Outram, General Manager of Sun Earth, the company that manufactured Complainant’s unit. 8. Complainant testified reiterating her displeasure with the system’s performance and about her high water bills. The evidence proved that water use in Complainant’s household includes any used in connection with the child daycare center operated by Ms. Parker, in addition to water used by her family. 9. Mr. Parker testified that he did not believe the system was lawfully installed per Arizona law, but provided no substantial foundation for this opinion, and he is not a lawyer. Mr. Lee testified that the system is not proper to be certified as an OG- 300 system. An OG-300 system is one meeting the specifications set forth by the SRCC. 10. Inspector Koeneman testified that his opinion that the system was properly installed and properly functioning remains unchanged today. He testified that he returned for a pre-hearing inspection two days prior to the hearing and again found the hot water temperatures acceptable, and found no problems with the system. He testified that he did not see an SRCC OG-300 sticker affixed to the unit. 11. Mr. Outram is a professional engineer and has acquired much experience in the solar hot water heater industry. He did not inspect the Complainant’s unit, but viewed photographs of it, and testified that it appeared to be installed properly and appeared to meet the specifications for OG-300 certification. He further testified as to the claims made by the Complainant and did not consider the claims indicative of poor performance. For example, Complainant had complained that after running the hot water for 20 minutes at a time, after 20 minutes there was no more hot water. Mr. Outram did not consider it reasonable to expect there to be hot water emanating from the shower after 20 minutes of running hot water. He testified concerning the fact that six people in the Complainant’s household using the shower could naturally exhaust the available hot water supply until it could be reheated. 12. Mr. Outram testified that Sun Earth and the SRCC do allow for substitution of components as long as they meet or exceed the specifications for OG-300 certification. He testified that a sticker affixed to the unit is not a requirement to be OG-300 certified, but that he would be happy to provide one. 13. Ms. Kent is a chemical engineer and has years of experience in solar energy and hot water heaters. She has visited the Complainant’s home three times, and her employees have visited there an additional six times to inspect for and correct any problems that they might discover with the solar hot water heater. They found no problems. The Complainant has never been able to demonstrate a malfunction in the system. 14. Ms. Kent testified that the system is OG-300 certified, and she has given Complainant a copy of a letter so attesting which she wrote and signed. She inspected the system at the pre-hearing inspection and it was operating properly. She also testified that the SRCC does allow for substitution components as long as the meet or exceed the specifications for OG-300 certification. 15. Tucson Electric Power Company’s Residential Technical Specialist Mr. Gabriel Torres sent a letter to Complainant’s husband dated September 25, 2008, in which he told Mr. Parker that the hot water heater met SRCC requirements for OG-300 certification. See: Complainant’s Exhibit 4 and Respondent’s Exhibit 5. 16. Ms. Kent provided Complainant with a printed certificate that the system qualifies for the Arizona state income tax credit dated December 31, 2007. The certificate nowhere contains the Respondent’s license number preceded by “ROC.” 17. There is no substantial evidence that the Complainant’s solar hot water system is not compliant with state law, or is not installed or functioning properly. The greater weight of evidence proved that the system meets or exceeds SRCC certification standards for OG-300 certification and is installed and operating properly.

CONCLUSIONS OF LAW 1. This administrative hearing was held under authority of and pursuant to A.R.S. § 32-1156 and A.R.S. § 41-1092. 2. Respondent is charged in the instant Citation and Complaint with possible violations of A.R.S. § 32-1154.A.2, 7, 3, (namely, A.A.C. R4-9-108, Workmanship Standards), and 13 (namely, A.R.S. § 32- 1124.B). 3. There is no substantial evidence that Respondent disregarded or departed from the specifications for the Complainant’s hot water heater in any material respect. There is no violation of A.R.S. § 32-1154.A.2. 4. There is no substantial evidence of any poor workmanship by Respondent in this case in violation of A.R.S. § 32-1154.A.3 or A.A.C. R4-9-108. 5. A.R.S. § 32-1124.B. requires all documents used by a licensee in connection with its business as a licensed contractor to include the license number preceded by “ROC.” The failure to include this information on the December 31, 2007 certification is a violation of this statute and therefore a violation of A.R.S. § 32-1154.A.13.

6. There is no substantial evidence of any wrongful or fraudulent conduct on the Respondent’s part in this case in violation of A.R.S. § 32-1154.A.7, independent of the one violation of A.R.S. § 32-1154.A.13 and A.R.S. § 32-1124.B. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Respondent’s Class K-77 License number 164744 shall be suspended for three consecutive days commencing on the effective date of this Order for the violation of A.R.S. § 32-1124.B and A.R.S. § 32- 1154.A.13. It is further recommended that in the event the Respondent submits written proof to the Registrar that Respondent has taken all necessary steps to ensure that all of its business related forms and documents fully comply with the requirements of A.R.S. § 32-1124.B on or before the effective date of this Order (40 days after the date of certification appearing on the Order), then the above-provided license suspension shall not occur, and Citation and Complaint T08-1214 shall be closed. In the event of certification of the Administrative Law Judge’s Decision and Order by the Director of the Office of Administrative Hearings, the effective date of the Order shall be 40 days after the date of that certification. Done this day, June 16, 2009.

______________________________________ Grant Winston Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012 By ___________________________ -----------------------

Office of Administrative Hearings 100 N. Stone Avenue, Suite 704 Tucson, AZ 85701 (520) 628-5488 Fax: (520) 628-5575 www.azoah.com