ALJDEC decisions subject to certification as final

09F-P0124-ROC · Registrar of Contractors · 2009-09-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 1, 2009; 10:30 a.m. APPEARANCES: Complainants Ms. Jo Ann Uzes and Mr. James Megna represented themselves. Respondent Complete Electrical Services and Supplies, Inc. was represented by Mr. Michael R. Ellsworth, Attorney-at- Law. ADMINISTRATIVE LAW JUDGE: Grant Winston _____________________________________________________________________ Based on the entire record the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. This is a residential matter where the Complainants Ms. Jo Ann Uzes and Mr. James Megna contracted with Respondent in early 2008 for the installation of a solar power system to their Show Low, Arizona residence for $18,365.50. 2. Respondent was operating through its President Mr. Don Fillingham. Mr. Fillingham offered Complainants an array of systems escalating in total price from the cheapest to the most expensive. The Complainants selected the system that Respondent installed which was not the cheapest or the most expensive. 3. After the system was installed, it performed below Complainants’ expectations. The greater weight of evidence did prove that the system does not by itself supply the house with all the electrical power needed to operate all the appliances that were used by the Complainants, and does not function 24-hours- a-day. Complainants have since moved out of the home and it is up for sale. 4. At the hearing the Complainants testified. Their claim is not one for installation defects, but they do complain that the system was misrepresented to them by Mr. Fillingham. Mr. Fillingham testified that he did not misrepresent the system’s capabilities. There is conflicting testimony from the opposing parties as to how much of a load the Complainants intended to place on the system. Complainants affirm that they fully informed Respondent of what they needed the system to operate, while Respondent testified that the Complainants were not accurate in their description to him. 5. Complainants’ contentions are that the generator, batteries and solar panels are inadequate. The generator the Complainants now have was provided by Respondent as a replacement and is larger than the contracted generator. Respondent also provided two extra batteries more than the number called for by the contract. The solar panels are properly installed and per the contract. 6. Complainants’ own expert witness testified and provided a written opinion that the system the Complainants need to operate with the capacity they desire would cost them approximately $173,000.00. Complainants testified that they in no way would be willing to pay that amount. 7. The assigned agency Inspector conducted two inspections of the system installed by the Respondent. One inspection was conducted soon after the filing of the Complaint, and the second was a pre- hearing inspection. At both inspections he found the system properly installed and functioning properly. Of course, the Complainants point out that the inspections occurred during the day when the sun was shining. The Inspector sent a letter to the parties stating his position that no corrective action was required. 8. There is no substantial evidence to prove that the system or its installation is defective. There is equal and conflicting credible testimony as to the representations made by the Complainants to Respondent of the power load they would place on the system, and the representations made by Respondent to Complainants of how much power the system would generate. 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.7, 23 and 3 (namely, A.A.C. R4-9-108, Workmanship Standards). 3. There is insufficient evidence to prove that Respondent’s workmanship or other actions as a contractor was unprofessional in violation of A.A.C. R4-9-108, and therefore A.R.S. § 32-1154.A.3. 4. There was no written directive from the Registrar in this case, thus no violation of A.R.S. § 32-1154.A.23. 5. There is no greater weight of evidence that Respondent misrepresented the system or committed any other wrongful or fraudulent act in violation of A.R.S. § 32-1154.A.7. RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that Citation and Complaint P09-0124, together with the Complaint on which it is based, be dismissed on the effective date of this Order (40 days after the date of service appearing on the Registrar’s certification on the Order). 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, September 3, 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 Ave., Suite 704 Tucson, AZ 85701 520-628-5488 Fax: 520-628-5575 www.azoah.com