ALJDEC decisions subject to certification as final

2011A-2169-ROC · Registrar of Contractors · 2011-10-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 12, 2011, at 8:00 a.m. APPEARANCES: The Complainants appeared through their attorney, Frederick Thomas. The Respondent appeared through its authorized representative, Cipriano Barba. 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 K-11 (No. 261397) License issued by the Registrar of Contractors. 2. This is a residential matter where the parties entered into a written construction agreement for the Respondent to install solar panels on the Complainants’ residence for the sum of $32,000.00. 3. There was no dispute that the Respondent furnished the written construction agreement. 4. Credible testimony and evidence established that the written construction agreement failed to contain the minimum elements of a contract required pursuant to applicable statute. 5. There was no dispute that the Complainants paid the Respondent over $29,000.00 at the onset of the scheduled construction project. 6. There was no dispute that the Respondent was to be responsible for fully paying all of its subcontractors and materials suppliers pursuant to the terms of the parties’ construction agreement. 7. Undisputed credible testimony and evidence established that the Complainants were contacted by one of the Respondent’s materials suppliers and informed that a lien would be filed on their residence unless the materials supplier was fully paid for its materials. 8. The Complainants notified the Respondent of the problem and were informed that the Respondent would resolve the issue with the materials supplier, and the Respondent then requested additional money so it could finish the construction project and pay off the materials supplier. 9. The Complainants declined to pay the Respondent the final two thousand dollars due under the parties’ construction agreement until the Respondent returned to their residence and properly completed the construction project. 10. When the Respondent failed to return to their residence and complete the construction project, the Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 11. Credible testimony and evidence established that on May 2, 2011, one of the Respondent’s materials suppliers filed a Notice and Claim of Mechanic’s and Materialman’s Lien against the Complainants’ residence for the sum of $11,425.28. 12. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and on May 24, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainants’ residence and to pay the Respondent’s materials suppliers. 13. Credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 14. Credible testimony and evidence established that an Inspector for the local building authority inspected the Respondent solar panel installation work on the Complainants’ residence and found that the Respondent’s construction work failed to comply with approved plans filed with the local building authority and that the Respondent’s construction work was not code compliant. 15. Credible testimony and evidence established that the Respondent represented that it was an Arizona Public Service (“APS”) qualified solar installer when the Complainants entered into the construction agreement with the Respondent. 16. Credible testimony and evidence established that the Respondent has never been an Arizona Public Service qualified solar installer. 17. Credible testimony and evidence established that the Respondent knowingly and falsely mislead the Complainants as to the Respondent’s qualifications for performing solar panel installation work. 18. Credible testimony and evidence established that the Complainants have been injured as a direct result of the Respondent’s false misrepresentations. 19. Credible testimony and evidence established that the Respondent’s construction work on the Complainants’ residence departed from or disregarded plans and specifications and failed to comply with applicable code requirements. 20. Although the Registrar of Contractors normally allows a contractor a reasonable opportunity to correct its own construction deficiencies and errors subsequent to hearing, under all of the salient facts and circumstances presented herein, 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 to fully comply with the Corrective Work Order issued in this matter. 21. 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 which 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) (11) (failure to pay monies in excess of seven hundred fifty dollars when due), A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1158 (minimum elements of a contract), A.R.S. § 32-1154 (A) (16) (false, misleading or deceptive advertising), A.R.S. § 32-1154 (A) (23) (failure to take appropriate corrective action), and 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). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective date of the Registrar’s Order unless the Registrar receives and accepts written proof that the Respondent has caused a properly licensed contractor of the Respondent’s choice to fully comply the terms of the written Corrective Work Order issued in this matter and that the Registrar receives and accepts written proof that the Respondent has paid its material supplier and properly removed the material supplier’s lien from the Complainants’ residence. It is further recommended that if the Respondent properly accomplishes the above described corrective actions, 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 actively suspended for a period of thirty (30) days. 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, October 14, 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