ALJDEC decisions subject to certification as final

2010A-21399655-ROC · Registrar of Contractors · 2010-07-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 12, 2010 APPEARANCES: Complainant A. Jeanne Sellers appeared on her own behalf. Martin Brown appeared telephonically on behalf of Respondent Lucky Seven Construction, L.L.C.[1] ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________

The question presented by this matter is whether Respondent Lucky Seven Construction, L.L.C. (“Lucky”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order. FINDINGS OF FACT 1. Lucky is the holder of a Class B- license (No. 245034) issued by the Registrar of Contractors (“ROC”).[2] 2. In July 2009, Complainant A. Jeanne Sellers (“Ms. Sellers”) contacted Lucky because Ms. Sellers wanted a new solar panel installed for her hot water tank. 3. On July 6, 2009, according to the Proposal Lucky provided to Ms. Sellers, Lucky “repaired solar panel on roof”. See Proposal dated July 6, 2009, a copy of which is contained in the administrative record. Lucky had also performed additional work at Ms. Sellers’ home including the installation of a new sink faucet and a new shower door, replacement of the thermostat on the hot water tank, and the coating of her roof with one coat of “Snow Coat Henry Roofing”. Id. 4. On December 15, 2009, Ms. Sellers filed a complaint against Lucky with the ROC alleging the following: i) Lucky failed to install a new solar panel; ii) the solar panel did not function properly; iii) Lucky failed to install the proper size shower door; and iv) the roof coating was inadequate. 5. During the course of the hearing, Ms. Sellers acknowledged that the shower door issue has been resolved, and although she cannot see the roof, she has been informed by the ROC inspector that the roof coating currently meets standards. As such, those two items of complaint were no longer at issue at the time of the hearing. 6. ROC Inspector Eric Ulinger investigated Ms. Sellers’ complaint. 7. On January 8, 2010, Inspector Ulinger conducted a jobsite inspection. Ms. Sellers and her friend, Roger Nateau, were present for the inspection.

8. On January 13, 2010, following the jobsite inspection, Inspector Ulinger issued a Corrective Work Order (“CWO”) under which the ROC gave Lucky 15 days to take corrective action as follows: The contractor is to correct the following items by the appropriate means. Solar system does not function as intended. The shower doors are not the proper size. The roof coating does not have full coverage[.] No action is required of the contractor on the following items. Leak in the solar panel. – No leak observed[.] New solar panel not installed as contracted. – Per the homeowner this was a verbal agreement that can not be verified by this inspector.

(Emphasis in original.)

9. Inspector Ulinger testified that he conducted a pre-hearing inspection on July 12, 2010, at which Ms. Sellers and Mr. Nateau were present. Inspector Ulinger testified that the roof coating is currently acceptable and the shower door has been replaced. Inspector Ulinger also testified with respect to the solar panel, that the water and electric were not connected to the solar panel. As such, he was unable to perform any testing of the solar panel. 10. Ms. Sellers testified that she believed she would receive a new solar panel based upon a verbal agreement with Lucky. However, Ms. Sellers acknowledged that the Proposal indicates that Lucky was to repair the existing solar panel. Ms. Sellers testified that the solar panel does not function as the hot water tank does not produce hot water. Ms. Sellers’ questioned whether Lucky is licensed to perform work on solar panels. 11. Martin Brown, an employee of Lucky, testified that Ms. Sellers continually unplugs the solar panel causing it to “freeze”. Mr. Brown testified that Lucky has been to Ms. Sellers’ home on several occasions to repair the solar panel. However, due to Ms. Sellers’ repeatedly disconnecting the water and electrical source to the panel, it persistently malfunctions. Mr. Brown testified that he has explained to Ms. Sellers numerous times that she should not unplug the solar panel. Mr. Brown contended that because Ms. Sellers has failed to heed Lucky’s instruction to keep the solar panel plugged into an electrical source and to the hot water tank, the panel continues to malfunction. Mr. Brown testified that Lucky repaired the solar panel per the Proposal, and that it did so under the “Handyman Exemption”. Mr. Brown further contended that he “went to school for solar.” 12. The Administrative Law Judge finds, based upon the credible evidence of record, that Lucky performed its contracted scope of work at Ms. Sellers’ home, and that Ms. Sellers’ agreed to the scope and price of such work. The Administrative Law Judge further finds, based upon the credible evidence of record, that Lucky complied with the directives contained in the CWO. However, as set forth below, the Administrative Law Judge further finds that Lucky contracted for and performed work beyond the scope of its licensure. CONCLUSIONS OF LAW In this proceeding, Ms. Sellers bears the burden to prove, by a preponderance of the evidence, that Lucky is subject to discipline for violations of Arizona Revised Statutes (“A.R.S.”) § 32-1154(A)(2), (A)(3), (A)(17), and/or (A)(23) as charged by the ROC in its March 25, 2010 Citation and Complaint. See Arizona Administrative Code (“A.A.C.”) R2-19- 119. 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). The Administrative Law Judge concludes that Ms. Sellers has met her burden of proof as to one of the ROC’s four charges. Under A.R.S. § 32-1154(A)(2), a contractor is subject to discipline for “departure from or disregard of plans or specifications or any building codes . . .” The Administrative Law Judge concludes that the credible evidence of record failed to establish that Lucky departed from or disregarded plans, specifications, or building codes. Therefore, the Administrative Law Judge concludes that Lucky is not in violation of A.R.S. § 32-1154(A)(2). Under A.R.S. § 32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the registrar.” In this case, the ROC charged Lucky with a violation of A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with any applicable building codes and professional industry standards. Notwithstanding the fact that the evidence of record established that Lucky initially failed to perform portions of its work at Ms. Sellers’ home in a professional and workmanlike manner, those deficiencies have been rectified. As such, the Administrative Law Judge concludes that Lucky is not in violation of A.R.S. § 32-1154(A)(3). Under A.R.S. § 32-1154(A)(17), a contractor is subject to discipline for “knowingly contracting beyond the scope of the license or licenses of the licensee.” Ms. Sellers alleged that Lucky contracted beyond the scope of its license. A.R.S., Title 32, Chapter 10, Article 4 governs qualifications of solar contractors. Pursuant to A.R.S. § 32-1170.01, “after June 30, 1980, it is unlawful for a contractor to install, alter or repair a solar device without qualifying as a solar contractor pursuant to this article.” Pursuant to A.R.S. § 32-1170.02(C), “the license of a successful applicant shall be appropriately marked or supplemented by the registrar to indicate qualification as a solar contractor within the scope of that license.” Lucky, by its own acknowledgement, has not been qualified as a solar contractor. As such, Lucky contracted beyond the scope of its license. In view of the foregoing, the Administrative Law Judge concludes that Lucky is in violation of A.R.S. § 32-1154(A)(17) Under A.R.S. § 32-1154(A)(23), a contractor is subject to discipline for “failure to take appropriate corrective action . . . without valid justification within a reasonable period of time after receiving a written directive from the registrar.” The evidence demonstrated that a jobsite inspection by the appointed inspector for the ROC was held, pursuant to which the ROC issued Lucky a CWO directing it to accomplish specified remedial work within a stated period of time. The credible evidence of record established that Lucky complied with the terms of the CWO. Therefore, the Administrative Law Judge concludes that Lucky is not in violation of A.R.S. § 32-1154(A)(23). Based on the foregoing, it is appropriate for the ROC to impose discipline against Lucky’s Class B- license. 8. Upon consideration of all of the facts and circumstances presented by this case, including Lucky’s suspended license status, the Administrative Law Judge concludes that the ROC should revoke Lucky’s Class B- license. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: On the effective date of the Order entered in this matter, Lucky’s Class B- license (No. 245034) shall be revoked. 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 40 days from the date of that certification.

Done this day, July 28, 2010.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Approximately one half hour prior to the time scheduled for hearing, Lucky Seven Construction, L.L.C.’s representative faxed to the Office of Administrative Hearings a request to continue the hearing based upon the fact that he had experienced a flat tire en route to the hearing. The Administrative Law Judge denied the request to continue. However, Lucky was permitted to appear telephonically for the hearing. [2] A review of the ROC’s official records revealed that Lucky’s contracting license was suspended on June 1, 2010, for nonrenewal. Such suspended license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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