ALJDEC decisions subject to certification as final

2010A-308475221-ROC · Registrar of Contractors · 2010-12-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 6, 2010 at 8:00 a.m. APPEARANCES: The Registrar of Contractors appeared through Assistant Attorney General, Elizabeth Campbell. The Defendant appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. On August 17, 2010, a homeowner filed a formal written Complaint against the Defendant with the Registrar of Contractors. 2. The Complaint provides, in relevant part, as follows: 1) Contractor appears to have sub-contracted work to Goodbar Electric (Complaint filed also). 2) Requests for licensed roofer to repair damage have been ignored by phone, email, fax + certified mail. 3) Roof was repaired(now demanding reimbursement. 4) This person + company appears to be un- licensed! 3. Pursuant to the filing of the formal complaint, an assigned Agency Investigator conducted an investigation of the Defendant’s license status with the Registrar of Contractors. 4. The assigned Agency Investigator discovered that the Defendant was not a licensed contractor within the State of Arizona. 5. The Defendant Charles St. George Kirkland admitted that he is not a licensed contractor in the State of Arizona. 6. The Defendant Charles St. George Kirkland admitted that he has never been a licensed contractor in the State of Arizona. 7. There was no dispute that Clean Energy Systems LLC is not a licensed contractor in the State of Arizona. 8. There was no dispute that Clean Energy Systems LLC has never been a licensed contractor in the State of Arizona. 9. Credible testimony and evidence established that the Defendant Charles St. George Kirkland is listed as a member/manager of Clean Energy Systems LLC with the Arizona Corporation Commission. 10. The homeowner stated that the Defendant gave the homeowner an advertisement (Exhibit No. 2) and that the Defendant told the homeowner about an energy program that the Defendant was operating. The Defendant then stated that the Defendant would install leased solar equipment on the homeowner’s residence and would only charge the homeowner a monthly lease payment based upon half of the monthly energy savings that would allegedly occur as a result of the solar panel installation. 11. Credible testimony and evidence established that the Defendant’s advertisement failed to disclose that the Defendant is not a licensed contractor. 12. The homeowner stated that sometime during the middle of July 2010, the Defendant’s installation crew arrived at his residence located at 7586 West Wickieup Lane, Glendale, Arizona to install the solar panels. 13. The Defendant’s installation crew then began installing the solar panels on the homeowner’s roof. The installation crew then stopped work without explanation and left the homeowner’s residence leaving the homeowner with an unfinished construction project. 14. Several weeks later the Defendant’s installation crew returned to the homeowner’s residence and removed and reinstalled the solar panels in a different location on the homeowner’s roof. 15. The homeowner then contacted the Defendant and inquired as to why the solar panels had to be moved and complained of the damage that was caused to the homeowner’s roof as a result of the installation of the solar panels. 16. Credible testimony and evidence established that the Defendant informed the homeowner that the Defendant was in the process of obtaining a building permit and that the Defendant would properly correct any damage to the homeowner’s roof that occurred during the installation of the solar panels. 17. The homeowner then contacted the local building authority which informed the homeowner that a required building permit had been refused to the Defendant because the solar panel installation failed to comply with applicable code requirements. 18. The homeowner then contacted a licensed roofing contractor to inspect the damage to the homeowner’s roof. 19. The licensed roofing contractor then conducted an onsite inspection and gave the homeowner a written report (Exhibit No. 5) wherein the contractor listed the damages that were caused by the installation of the solar panels. 20. The homeowner then caused the licensed roofing contractor to remove the solar panels and to properly correct the damages to his roof caused by the improper installation of the solar panels at a total cost of $3,200.00. 21. The homeowner then demanded restitution from the Defendant for the homeowner’s costs for removing the solar panels and repairing the roof. 22. When the Defendant refused to pay for the homeowner’s damages, the homeowner then attempted to file a complaint against the Defendant with the Registrar of Contractors and discovered that the Defendant was not a licensed contractor. 23. The Defendant asserted that the Defendant was not required to have a license as the Defendant owned the solar panels, and the installation of the solar panels had allegedly been performed by a licensed electrician. 24. Credible testimony and evidence, presented at hearing, established that the Defendant performed unlicensed contracting at the homeowner’s residence located at 7586 West Wickieup Lane and that as a direct result of this unlicensed activity, the homeowner’s residence was damaged. 25. Credible testimony and evidence established that the Defendant advertised for contracting work without a license and failed to disclose in its advertisements that the Defendant was not a licensed contractor. 26. As a result of his investigation, the assigned Agency Investigator issued a Cease and Desist Order to the Defendant, assessed a civil penalty for the unlicensed contracting in the amount of $1,500.00, and assessed a civil penalty for advertising without a license in the amount of $1,000.00. 27. Credible testimony and evidence established that the Defendant did violate the charged provisions of A.R.S. § 32-1151 and A.R.S. § 32-1165 as charged and that the civil penalties totaling $2,500.00 assessed against the Defendant for the proven violations are reasonable and justified and are permitted by applicable statute. CONCLUSIONS OF LAW 1. This hearing was held under the authority of and pursuant to A.R.S. § 32- 1156 and A.R.S. § 41-1092. 2. The Defendant was issued a civil citation and assessed a civil penalty in the amount of $1,000.00 for a violation of A.R.S. § 32-1165 and a civil penalty in the amount of $1,500.00 for a violation of A.R.S. § 32- 1151. 3. A.R.S. § 32-1165 provides as follows: Except as authorized by section 32-1121, subsection A, paragraph 14, subdivision (c), it is a class 1 misdemeanor for any person to advertise that he is able to perform any service or contract for compensation subject to regulation by the registrar under the terms of this chapter unless a license under the terms of this chapter is first obtained regardless of whether his operations as a contractor are otherwise exempt. 4. A.R.S. § 32-1151 provides as follows: It is unlawful for any person, firm, partnership, corporation, association or other organization, or a combination of any of them, to engage in the business of, submit a bid or respond to a request for qualification or a request for proposals for construction services as, act or offer to act in the capacity of or purport to have the capacity of a contractor without having a contractor’s license in good standing in the name of the person, firm, partnership, corporation, association or other organization as provided in this chapter, unless the person…is exempt as provided in this chapter. Evidence of securing a permit from a governmental agency or the employment of a person on a construction project shall be accepted in any court as prima facie evidence of existence of a contract. 5. A.R.S. § 32-1166 provides, in pertinent part, as follows: B. Each violation of this chapter or rule or order to the registrar by a person who is required to be licensed by this chapter and who does not possess the requited license shall constitute a separate offense, and the registrar may impose a civil penalty of not to exceed two thousand five hundred dollars for each violation…. C. The registrar of contractors may issue citations containing orders to cease and desist and of civil penalties against persons who have never been licensed under this chapter who are acting in the capacity of or engaging in the business of a contractor in this state. 6. Credible testimony and evidence supported findings that establish that the Defendant did violate the charged provisions of A.R.S. § 32-1151 and A.R.S. § 32-1165 and that the civil penalties assessed for the proven violations of A.R.S. §32-1151 and A.R.S. § 32-1165 are reasonable and justified and permitted by applicable statute. RECOMMENDed order In view of the foregoing, it is recommended that the civil penalties assessed against the Defendant in the total sum $2,500.00 be affirmed. 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, December 8, 2010.

/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