ALJDEC decisions subject to certification as final

2011A-2240-ROC-rhg · Registrar of Contractors · 2012-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 11, 2012, at 1:00 p.m. APPEARANCES: Complainants appeared through Lyle Honeycutt. Respondent appeared through his attorney, Michael J. Vingelli Esq., Vingelli and Errico P.C. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on Rehearing are made: FINDINGS OF FACT 1. At the onset of the scheduled hearing, Darlene Lane’s husband, Lyle Honeycutt, was added as a named Complainant in this matter without objection from Respondent. 2. Respondent is the holder of License No. K-78.182527-D issued by the Registrar of Contractors. 3. This is a residential matter where Respondent installed a new solar panel system on Complainants’ roof. 4. Credible testimony and evidence established that the new solar panel system leaked at numerous locations. 5. Complainants were dissatisfied with the leaking condition of the new solar panel system and repeatedly demanded that Respondent properly correct the solar system to within applicable workmanship and industry standards. 6. When Respondent failed to comply with Complainants’ repeated demands, Complainants filed a formal Complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an on-site inspection and on May 4, 2011, issued a written Corrective Work Order directing Respondent to perform designated corrective work on the Complainants’ solar panel system within fifteen days of May 4, 2011. 8. The Corrective Work Order provides, in pertinent part, as follows: 1. Leaks in solar panels. – There are numerous leaks and improper repairs present in the system. The contractor is to correct by the appropriate means.

9. Respondent failed to comply with the terms of the Corrective Work Order within the time period set forth in the Corrective Work Order. 10. On or about January 15, 2012, Respondent contacted an alternative licensed contractor, identified as Arizona Accurate Solar Installations Inc. (“Arizona Accurate”), and requested it to perform an inspection of the solar system on the Complainants’ residence. 11. Arizona Accurate performed the requested inspection and submitted a proposal to Respondent for needed corrective work on Complainants’ solar panel system on January 23, 2012. 12. Arizona Accurate did not receive a response from Respondent regarding its proposal until March 28, 2012, when Respondent informed Arizona Accurate that its proposal for corrective action on Complainants’ residence was acceptable. 13. On March 28, 2012, Arizona Accurate refused to perform further corrective work for Respondent based upon its dissatisfaction with Respondent’s alleged treatment of other homeowners. 14. Complainants checked with Arizona Accurate and were informed that it was no longer willing to perform corrective work for Respondent and it would not be performing any corrective work on Complainants’ residence. 15. Complainants also checked with the Registrar of Contractors’ public website, and found that License No. K-78.182527-D of Ted Mount dba Natural Energy was suspended by the Registrar of Contractors for lack of bond on December 7, 2011. 16. Complainants then refused Respondent’s request for access to their residence to perform the corrective action set forth in the Corrective Work Order because they did not know that a licensed contractor would be performing the directed corrective work. 17. Complainants’ actions, in denying Respondent’s request for access to their residence when they had no information that a properly licensed contractor would be performing the directed corrective action, were shown to be reasonable and justified under the circumstances. 18. Respondent’s installation work on the solar panel system on Complainants’ roof fails to comply with applicable code requirements and with applicable workmanship and industry standards. 19. Credible testimony and evidence established that the leaking solar panels have caused water damage to Complainants’ roof. Respondent is found to be fully responsible for the water damage to the Complainants’ roof caused by the leaking solar panels. 20. Respondent’s actions over a prolonged period of time are not indicative of a good faith desire to resolve this matter by complying with the terms of the May 4, 2011 Corrective Work Order. On the contrary, credible testimony and evidence established that Respondent has repeatedly failed to properly accomplish compliance with the terms of the May 4, 2011, Corrective Work Order, and that Respondent’s efforts appear to have been directed to delay and excuse, rather than to achieve, compliance with the terms of the May 4, 2011, Corrective Work Order. 21. 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 an additional opportunity to properly cause the terms of the May 4, 2011, Corrective Work Order issued in this matter to be fully complied with. Thus, any condition placed into this Order for the purpose of allowing Respondent to accomplish corrective work as a means to reduce or eliminate otherwise appropriate disciplinary penalties should include the requirement that Respondent, at Respondent’s sole expense, cause another properly licensed contractor of Complainants’ choice to fully comply with the terms of the Corrective Work Order issued in this matter and that Respondent, at Respondent’s sole expense, cause a properly licensed roofing contractor of Complainants’ choice, to properly correct the water damage to Complainants’ roof caused by the leaking solar panels. 22. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on April 12, 2012. Such prior License record reflects that License No. K-78.182527-D of Ted Mount dba Natural Energy was suspended for lack of bond on December 7, 2011, and remains suspended. Respondent is unable to contract with this license at this time. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 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). 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 (6th ed. 1990). 3. Credible testimony and evidence supported findings which establish violations by Respondent of the charged provisions of 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 License No. K- 78.182527-D of Ted Mount dba Natural Energy be revoked on the effective date of the Registrar’s Order unless the Registrar receives, and accepts, written proof that Respondent has, at its sole expense, caused a properly licensed contractor of Complainants’ choice to fully comply with the terms of the May 4, 2011, Corrective Work Order issued in this matter and that the Respondent, at its sole expense, has caused a properly licensed roofing contractor of Complainants’ choice to properly correct all of the areas of Complainants’ roof that have suffered water damage as a result of the leaking solar panels installed by Respondent. It is further recommended that if Respondent properly causes the accomplishment 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 this matter shall be closed. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. §32- 1154(D). The failure by 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 Respondent’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. §32-1101(A)(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, September 30, 2011.

/s/ M. Douglas Administrative Law Judge Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826