ALJDEC decisions subject to certification as final

2010A-308474240-ROC · Registrar of Contractors · 2011-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 28, 2011 at 8:00 a.m. APPEARANCES: The Complainants appeared through Kenneth Inderrieden. The Respondent appeared through its authorized representative, John Onorato. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on are made: FINDINGS OF FACT 1. The Respondent is the holder of a Class C37R (No. 131215) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent removed the Complainants’ old solar hot water system and replaced it with a new solar hot water system. 3. There was no dispute that the Complainants paid the Respondent the sum of $7,253.60 for the Respondent’s labor and material involved in the removal of the old solar system and the installation of the new solar system. 4. When the Respondent completed the installation of the new solar system, the Complainants attempted to obtain an energy rebate from the Salt River Project (“SRP”) Solar Energy Program. 5. The Complainants discovered that the Respondent was not properly licensed to perform solar system work, and therefore, the Complainants were ineligible to receive the requested rebate. 6. The Complainants contacted the Respondent and requested that the Respondent provide the requested proof of licensure to the SRP solar energy program to enable the Complainants to obtain a rebate for the cost of the new solar hot water system. 7. When the Respondent failed to provide the requested proof of licensure and the Complainants were unable to obtain the SRP rebate, the Complainants filed a formal complaint against the Respondent with the Registrar of Contractors. 8. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on August 23, 2010, issued a lengthy written Corrective Work Order directing the Respondent to cause a properly licensed contractor to perform designated corrective work on the Complainants’ residence. 9. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 10. Credible testimony and evidence established that the Respondent knowingly utilized a fictitious license number rather than its own contractor’s license number to obtain a required permit for the installation of the new solar hot water system. 11. Credible testimony and evidence established that the Respondent knew, or should have known, that it was not licensed to install solar hot water systems and that the Respondent knowingly contracted to perform construction work beyond the scope of the Respondent’s License. 12. Credible testimony and evidence established that the Respondent’s workmanship in the installation of the new solar hot water system failed to comply with applicable code requirements. 13. Credible testimony and evidence established that the Respondent’s workmanship on the Complainants’ new solar hot water system failed to comply with applicable workmanship and industry standards. 14. Credible testimony and evidence established that the workmanship on the Complainants’ new solar hot water system is so poor as to require the removal and replacement of the new solar hot water system. 15. Credible testimony and evidence established that the Complainants are ineligible to receive thousands of dollars of credits and incentives from SRP and various federal and state energy programs that would have been available to the Complainants had the Respondent been properly licensed to perform such construction work, 16. This Respondent should not be allowed to wreak any further havoc on the lives of these homeowners. Thus, any condition placed into this Order for the purpose of allowing the Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that the Respondent cause another properly licensed contractor of the Complainants’ choice to fully comply with the terms of the Corrective Work Order issued in this matter. 17. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it 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, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “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). 4. Credible testimony and evidence supported findings that establish violations by the Respondent of the charged provisions of A.R.S. § 32- 1154 (A) (2) (Departure from or disregard of plans or specifications or any building codes), A.R.S. § 32-1154 (A) (17) (Knowingly contracting beyond the scope of the license of the licensee), A.R.S. § 32-1154 (A) (23) (Failure to take appropriate corrective action), and A.R.S. § 32- 1154 (A) (3), namely, rule A.A.C. R4-9-108 (Failure to perform work in a professional and workmanlike manner). RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order that the Respondent’s License shall be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has caused a properly licensed contractor of the Complainants’ choice to fully comply with the terms of the Corrective Work Order issued in this matter. It is further recommended that if the Respondent utilizing a properly licensed contractor of the Complainants’ choice causes the terms of the Corrective Work Order issued in this matter to be fully complied with, on or before the effective date of this Order, then the above provided License revocation shall not take place and that instead, the Respondent’s License shall be suspended for a period of twenty (20) days to be followed by one hundred (100) days of disciplinary probation. It is further recommended, in addition to the above-provided penalties, if any, that the Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154D. The failure by the Respondent to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of the Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with the Respondent, as defined in A.R.S. §32-1101A (5), unless payment of any outstanding prior civil penalty is tendered. In the event of certification of this 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 the certification. Done this day, March 7, 2011.

/s/ M. Douglas 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