ALJDEC decisions subject to certification as final

2011A-1322-ROC · Registrar of Contractors · 2011-09-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 16, 2011 APPEARANCES: Donald and Betty Sweetwood appeared personally. Five Star Plumbing, L.L.C. was represented by its authorized representative, Stephen Adams. 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. At the commencement of the hearing in the above-entitled matter, the Citation and Complaint was amended to include Dorothy Sweetwood, Donald Sweetwood’s wife, as a Co-Complainant. 2. Five Star Plumbing, L.L.C. (“Respondent”) is the holder of License No. 261047, a Class C-37 contracting license issued by the Registrar of Contractors (“Registrar”). 3. Complainant Donald Sweetwood filed a written Complaint with the Registrar alleging statutory violations by Respondent concerning a solar power project at Complainant’s residence in Phoenix, Arizona. The Registrar designated the Complaint as Case No. 2011-1322. 4. The Registrar issued a Citation and Complaint in Case No. 2011-1322 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (2) and (9). 5. The Registrar forwarded Case No. 2011-1322 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 6. On November 16, 2010, Complainant Donald Sweetwood entered into a written contract with Respondent for the purchase and installation of the following items: one 80 gallon electric FAFCO solar water heater; one roof-mounted solar attic fan; one e-pak capacitor; an 11-year warranty on parts and labor; and one 10” solar light tube in the guest bedroom (“Contract 1”). 7. Contract 1 contained the following terms: “Customer to pay $6,000 to Greenovated Energy and pay difference of $7,998 on M/C on January 3rd install date. Greenovated market home rebate of $3,000 to be paid after install. Old tank to go to Habitat for Humanity.” 8. The contract price listed in Contract 1 was $13,977.00. 9. Contract 1 listed Respondent in the caption as “Installation Company and Dealer.” At the bottom of Contract 1 in small font is listed Greenovated Energy, L.L.C. (“Greenovated”) as “Marketing Company.” 10. There is also a second contract (“Contract 2”) between Respondent and Complainant Donald Sweetwood executed on November 16, 2010, for the purchase and installation of the following items: One electric FAFCO solar water heater model number UDB-24uxz-80e; one roof mounted solar attic fan; one E-pak capacitor; and one 10” solar light tube. 11. Contract 2 contained the following terms: “Customer paying $6,000 with check # [blank]. Balance of [$]7,977 to be paid on day of install with [blank]. Customer to donate old tank to Habitat for Humanity.” 12. Contract 2 was submitted to Salt River Project (“SRP”) on February 7, 2011, for a $3,000.00 rebate to Complainants for their new solar system. 13. Complainant Betty Sweetwood paid Respondent the sum of $5,820.00 by a cashier’s check dated December 30, 2010. 14. Complainant Betty Sweetwood also paid Respondent the sum of $120.00 by a personal check dated December 30, 2010. 15. Michael Hutchins of Greenovated completed SRP’s “Residential Solar Water Heating Application and Agreement” (“Agreement”) that listed Respondent’s License No. 261047. Complainants’ signatures were forged on the document. 16. On January 3, 2011, Complainant Betty Sweetwood paid Respondent the sum of $7,977.00 using her credit card. 17. By check number 1052 dated January 3, 2011, Respondent paid Greenovated the sum of $5,050.00 from funds received from Complainants. 18. By check dated January 18, 2010 [sic], Respondent paid Greenovated the sum of $6,677.00 from funds received from Complainants. 19. Mr. Hutchins submitted an SRP “Solar Energy Program Residential Solar Water Heating Installation Certification” (“Certification”) that listed Respondent as the installer for Complainants’ system to SRP for a rebate. Mr. Hutchins executed the Certification on February 7, 2011, on behalf of Respondent as the installer and the unnamed “Dealer.” 20. SRP did not approve Complainants’ rebate due to incomplete information provided in the Application. 21. Greenovated purchased the materials on credit from Central Arizona Supply for the total amount of $2,445.36. Those materials were supplied for Complainants’ project on January 3, 2011. 22. Central Arizona Supply filed a “Notice and Claim of Materialman and Mechanic’s Lien A.R.S. § 33-993(A) due to Greenovated’s failure to pay for the materials purchased from Central Arizona Supply. 23. A review of the Registrar’s official public electronic licensing records did not list Greenovated as possessing a contracting license. 24. Respondent, as the properly licensed contractor, is the responsible party for Complainants’ project. 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), Complainants have 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 Donald Sweetwood contracted with Respondent, not Greenovated, on the subject project. Complainants have no privity of contract with Greenovated. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (2), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to cause the proper paperwork to be filed with SRP necessary for Complainants to receive a $3,000.00 rebate from SRP as specified in the parties’ contract. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (9), as charged in the Citation and Complaint issued by the Registrar. Respondent failed to cause the proper paperwork to be filed with SRP necessary for Complainants to receive a $3,000.00 rebate from SRP as specified in the parties’ contract and Respondent caused a lien to be placed on Complainants’ residence due to the failure to pay a material supplier. RECOMMENDED ORDER Respondent’s License No. 261047 shall be suspended on the effective date of the Order entered in Case No. 2011-1322 until the Registrar receives proof, and the Registrar accepts such proof, that Respondent has completed the following conditions: Respondent has paid Central Arizona Supply the sum of $2,445.36 plus accrued interest on the outstanding balance owed for the materials purchased for Complainants’ project and Central Arizona Supply’s lien is released; and Respondent has either completed the paperwork necessary for Complainants to receive the $3,000.00 rebate from SRP for their solar system or Respondent has paid Complainants the sum of $3,000.00 if they are no longer eligible for the rebate due to Respondent’s failure to timely cause the necessary paperwork to be submitted to SRP for the rebate. If the Registrar approves proof of Respondent’s compliance with the above-provided conditions on or before the effective date of the Order entered in Case No. 2011-1322, then the above-described license suspension shall not take place. In addition to the above-provided license suspension, if any, Respondent’s License No. 261047 shall be placed on disciplinary probation for a period of one year commencing on the effective date of the Order entered in Case No. 2011-1322 or the date on which the Registrar approves proof of Respondent’s compliance with the above-provided conditions, whichever is later. 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, September 6, 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