ALJDEC decisions subject to certification as final

2010A-308472954-ROC · Registrar of Contractors · 2011-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 18, 2011 APPEARANCES: Ayn Zimmerman appeared personally. Performance Solar, Inc. was represented by its attorney, Mark Bainbridge, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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. Performance Solar, Inc. (“Respondent”) is the holder of License No.183461, a Class L-78 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On May 10, 2010, Ayn Zimmerman (“Complainant”) filed a written Complaint with the Registrar against Respondent, who had installed solar pool heating panels at Complainant’s residence in Maricopa, Arizona. The Registrar designated Complainant’s Complaint as Case No. 2010-[number redacted]. 3. Paragraph 5 of the Complaint lists the following Complaint items: #1. Improper installation of pipes and clamps that resulted in continual leaking of system[.] #2. Continual appointments made by company for a period of more than six months for which they did not show up to repair leaks[.]

4. In Paragraph 4 of the Complaint, Complainant wrote the following resolution that she sought: “Reimbursement of repair fees in the amount of $325.00.” The Parties’ Contract 5. On May 10, 2008, the parties executed a written Purchase Agreement for the solar pool heating system for the purchase price of $5,200.00. 6. On May 13, 2008, Respondent installed the solar pool heating system and Complainant paid Respondent the full contract price. 7. On May 13, 2008, Respondent issued an Arizona Performance Solar Installation Report (“Report”). The Report indicated that the system was checked for leaks upon completion of the installation. Repairs to the Solar Pool Heating System 8. In the Fall of 2008, Complainant discovered a water leak from the roof- mounted solar pool heating system. 9. There is a dispute about whether Respondent failed to respond to warranty repair requests from Complainant and/or her husband. There is persuasive evidence that Respondent attempted to contact Complainant by telephone and by U.S. mail, but was unsuccessful in those attempts. 10. On December 3, 2009, Complainant hired R D Crutchfield, L.L.C. (“Crutchfield”) to perform repair work to the solar pool heating system. 11. Crutchfield’s Proposal listed the following scope of work that was performed by it for the sum of $360.00: “Removal of rooftop mounted solar water heating system for swimming pool and cap off return and supply loop and take electronics offline.” 12. Crutchfield’s Proposal did not list a license number issued by the Registrar. 13. A search of the Registrar’s official electronic licensing records revealed that Crutchfield does not possess a contracting license. 14. On February 21, 2010, Complainant hired Arrowhead Plumbing, Inc. (“Arrowhead”) to inspect the solar pool heating system for the sum of $75.00. 15. Arrowhead performed the following inspection on Complainant’s system: “Trip charge inspect solar panel for pool. Found 6 leaks on band coupling and 1 leak on 2” pvc 90. Customer did not want repairs fixed.” 16. Arrowhead’s invoice given to Complainant did not list a contracting license number issued by the Registrar. 17. A search of the Registrar’s official electronic licensing records revealed that Arrowhead is the holder of License No. 197574, a Class C- 37R Plumbing Excluding Solar contracting license issued by the Registrar. By virtue of its licensing classification, Arrowhead is not licensed to perform solar plumbing work. 18. On May 6, 2010, Maricopa Mountain Plumbing, Inc. (“Maricopa”) performed repairs to Complainant’s solar pool heating system. 19. Maricopa performed the following scope of work on Complainant’s system for a contract price of $250.00: Charge ss clamps on pool solar heater on roof and repair leak on 2” heater supply line

Labor & material $250.00

2” lines to solar heater showed no sign of primer being used on pipe & ftgs

ss clamps looked like they were put on with a drill and over torgued.

20. Maricopa’s Job Work Order lists ROC #185382. A review of the Registrar’s official electronic licensing records revealed that License No. 185382 is a Class 37R Plumbing Excluding Solar contracting license. By virtue of its license classification, Maricopa’s repairs to Complainant’s solar pool heating system were beyond the scope of its contracting license. 21. On May 30, 2010, Respondent sent Complainant a check in the amount of $250.00 and another check in the amount of $75.00 for reimbursement of expenses paid by Complainant. Complainant has refused to cash those checks because she also wants Respondent to reimburse her for her prior attorney expenses. 22. The Administrative Law Judge finds that Respondent’s workmanship met workmanship standards. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainant failed to sustain her burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (3), specifically A.A.C. R4-9-108, in this matter. The evidence of record supports this conclusion. RECOMMENDED ORDER The Citation and Complaint in Case No. 2010-[number redacted] shall be dismissed on the effective date of the Order entered in the matter. 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, February 7, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826