ALJDEC decisions subject to certification as final

2011A-2240-ROC · Registrar of Contractors · 2011-09-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 30, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent failed to appear. 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-78 (No. 182527) License issued by the Registrar of Contractors. 2. This is a residential matter where the Respondent installed a new solar panel system on the Complainant’s roof. 3. Credible testimony and evidence established that the new solar panel system leaked at numerous locations. 4. The Complainant was dissatisfied with the leaking condition of the new solar panel system and demanded that the Respondent properly correct the solar system to within applicable workmanship and industry standards. 5. When the Respondent failed to comply with the Complainant’s repeated demands, the Complainant filed a formal Complaint against the Respondent with the Registrar of Contractors. 6. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector conducted an onsite inspection and on May 4, 2011, issued a written Corrective Work Order directing the Respondent to perform designated corrective work on the Complainant’s solar panel system. 7. 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.

8. Undisputed credible testimony and evidence established that the Respondent failed to comply with the terms of the Corrective Work Order. 9. Undisputed credible testimony and evidence established that the Respondent’s installation work on the solar panel system on the Complainant’s roof fails to comply with applicable code requirements. 10. Undisputed credible testimony and evidence established that the Respondent’s workmanship on the solar panel system on the Complainant’s roof fails to comply with applicable workmanship and industry standards. 11. Undisputed credible testimony and evidence established that the leaking solar panels have caused water damage to the Complainant’s roof. 12. The Respondent is found to be fully responsible for the water damage to the Complainant’s roof caused by the leaking solar panels. 13. Notice is taken of the Respondent’s prior license record with the Registrar of Contractors. 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. Undisputed credible testimony and evidence supported findings which establish violations by the 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 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 fully complied with the terms of the written Corrective Work Order issued in this matter and that the Respondent has caused a properly licensed roofing contractor of the Respondent’s choice to properly correct all of the areas of the Complainant’s roof that have suffered water damage as a result of the leaking solar panels installed by the Respondent. 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 this matter shall be closed. 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, September 30, 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