ALJDEC decisions subject to certification as final

2010A-308476575-ROC · Registrar of Contractors · 2011-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 5, 2011, at 8:15 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its attorney, Michael A. Rossi, Esq. . 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. The Respondent is the holder of a Class C-5 (No. 201760) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent completed the installation of new solar panels on the Complainant’s residence on July 16, 2009, for the total sum of $15,300.00. 3. Credible testimony and evidence established that approximately a year and a half later the Complainant became aware of a structural problem in the roof of her residence. 4. The Complainant believed the structural problems with the roof on her residence were caused by the Respondent’s construction work in installing the solar panels on her residence. 5. The Complainant notified the Respondent of the structural problems with her roof and demanded that the Respondent properly correct the structural problems with her residence. 6. When the Respondent failed to comply with the Complainant’s demands, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors on October 15, 2010. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection. 8. The Agency Inspector moved to close the complaint on the following basis: After investigation, the ROC has determined that: The roof damage is was [sic] not caused by the solar panels but rather a total failure of the roof rafters that were improperly installed. The drywall crack above the patio door was not caused by the solar panels but rather age and improper constrction [sic]. Based on the above, a citation will not be issued against the contractor at this time. 9. The Complainant disagreed with the Agency Inspector’s determination and requested an administrative hearing. 10. Credible testimony and evidence established that several of the roof trusses in the Complainant’s residence have cracked and that extensive corrective action is required on the Complainant’s roof. 11. Credible testimony and evidence established that the roof rafters in the Complainant’s residence were not properly constructed and are not code compliant. 12. There was no credible evidence that the Respondent had anything to do with the construction of the Complainant’s roof. 13. Credible testimony and evidence established that both parties were aware of the fact that the local building authority required that a construction permit be obtained for the installation of the solar panels on the Complainant’s roof. 14. Credible testimony and evidence established that the Respondent informed the Complainant that she was responsible for obtaining the required construction permit from the local building authority. 15. Credible testimony and evidence established that the Complainant informed the Respondent that she was unwilling to obtain the required construction permit from the local building authority and that the Respondent should continue with the installation of the solar panels without the required construction permit. 16. Credible testimony and evidence established the Respondent then installed the solar panels without the required construction permit at the Complainant’s request despite the fact that the Respondent knew, or should have known, that no construction work should have occurred without the required construction permit. 17. The Respondent’s actions, in installing the solar panels on the Complainant’s roof despite the fact that the Respondent knew that the Complainant was unwilling to obtain the required building permit, are found to constitute a violation of the charged provisions of A.R.S. § 32- 1154 (A) (2) (Departure from or disregard of local code requirements). 18. Credible testimony and evidence established that the Respondent informed the Complainant that a portion of her roof appeared to be spongy and recommended that the Complainant obtain a roof inspection. 19. Credible testimony and evidence established that the Complainant disregarded the Respondent’s recommendation and that no roof inspection was performed. 20. Credible testimony and evidence established that the Respondent installed the solar panels at least ten (10) feet from the roof rafters that eventually failed on the Complainant’s residence. 21. Credible testimony and evidence established that the actual installation of the solar panels on the Complainant’s residence was performed by the Respondent in a professional and workmanlike manner. 22. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent’s solar panel installation work caused or contributed to the failure of the Complainant’s improperly constructed roof. 23. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent is responsible for the correction of the Complainant’s failed roof. 24. As set forth in the Citation and Complaint issued by the Registrar of Contractors, the Respondent was advised that in the event of a finding of a violation against the Respondent, the Respondent’s prior disciplinary record of final Registrar of Contractors’ Orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding the Respondent. Therefore, the Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case. CONCLUSIONS OF LAW 1. The Complainant has 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. The credible testimony and evidence of record was insufficient and failed to support a finding of a violation by the Respondent of the provisions of A.R.S. § 32-1154 (A) (3), namely, A.A.C. rule R4-9-108 (Failure to perform work in a professional and workmanlike manner) as charged in the Citation. 5. Credible testimony and evidence supported findings which established a violation by the Respondent of the charged provisions of A.R.S. § 32-1154 (A) (2) (Departure from or disregard of building codes). RECOMMENDed order In view of the foregoing, it is recommended commencing on the effective date of the Registrar’s Order that the Respondent’s License be placed on disciplinary probation for a period of thirty (30) days. 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, May 6, 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