ALJDEC decisions subject to certification as final

2011A-45-ROC · Registrar of Contractors · 2011-05-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 25, 2011, at 10:15 a.m. APPEARANCES: The Complainants appeared through Geraldine Wild. The Respondents appeared through their authorized representative, Daniel Sumnar Hoffman. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made:

FINDINGS OF FACT 1. Mrs. Geraldine Wild was added as a named Complainant without objection at the onset of the scheduled hearing. 2. Respondent Daniel Sumnar Hoffman dba Solar Dan is the holder of a Class C-5 (No. 261288) License issued by the Registrar of Contractors. 3. The Class L-5 (No. 150226) of Respondent Independent Designs and Creations dba I D C (LLC) was voluntarily canceled on December 13, 2009. 4. Daniel Sumner Hoffman was also the qualifying party for a Class C-5 (No. 150225) License issued to Independent Designs and Creations dba I D C (LLC) which was voluntarily canceled on December 13, 2009. 5. This is a residential matter where the Daniel Sumnar Hoffman provided solar energy material and provided solar energy installation advice to the Complainants. 6. Credible testimony and evidence established that the Complainants then utilized the Daniel Sumnar Hoffman’s material and advice and installed a solar energy system on the roof of an existing metal building on their property located at Lot # 723, Sierra Verde Ranch, Seligman, Arizona. 7. Credible testimony and evidence established that during the course of the parties’ business dealings Daniel Sumnar Hoffman sometimes utilized the name Solar Dan and sometimes utilized the name I D C Solar and sometimes simply utilized his own name. 8. After the erection of their new solar system the Complainants found that they needed a permit from the local building authority in order to qualify for a desired tax rebate for the installation of the new solar energy system. 9. Credible testimony and evidence established that the Complainants were informed that the local building authority deemed the roof of their existing metal building inadequate to support the weight of the newly installed solar system and that the local building authority would not issue the requested building permit unless the roof of the Complainants’ existing metal building was corrected to comply with local building code requirements. 10. The Complainants then contacted Daniel Sumnar Hoffman and demanded that he properly correct the problem with the installation of the new solar system and obtain the required construction permit. 11. When Daniel Sumnar Hoffman refused to comply with the Complainants’ demands the Complainants filed a formal Complaint against the Respondents with the Registrar of Contractors. 12. Pursuant to the filing of the formal Complaint the Registrar of Contractors issued Citations against both of the named Respondents alleging possible violations of the charged provisions of A.R.S. § 32- 1154 (A) (2) (Departure from or disregard of plans and specifications or any building codes). 13. Credible testimony and evidence established that the Complainants’ existing metal building was constructed at least ten (10) years before the installation of the new solar system. 14. Credible testimony and evidence established that the existing metal building was engineered and approved for installation in Mesa, Arizona. 15. Credible testimony and evidence established that the roof of the Complainants’ existing metal building was not engineered to support the weight of the new solar energy system and the possible snow loads that could occur in the Seligman area. 16. The credible testimony and evidence of record is insufficient and fails to support a finding that either of the Respondents had anything to do with the construction of the Complainants’ existing metal building on the Complainants’ property in Seligman, Arizona. 17. Credible testimony and evidence established that the Complainants knowingly installed the new solar system on their existing metal building without first obtaining a required building permit from the local building authority. 18. The credible testimony and evidence of record is insufficient and fails to support a finding that either of the Respondents violated the charged provisions of A.R.S. § 32-1154 (A) (2) (Departure from or disregard of plans and specifications or any building codes).

CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that the Respondents 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). I 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 Complainants failed to sustain their burden of proof to establish that the Respondents violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations by the Respondents of the provisions of A.R.S. § 32-1154 (A) (2) (Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect which is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code) as charged in the Citations. RECOMMENDed orders 1. In view of the forgoing it is recommended that the Citation, together with the Complaint upon which it is based, against Respondent Daniel Sumnar Hoffman dba Solar Dan (Indiv.) be dismissed. 2. In view of the forgoing, it is recommended that the Citation, together with the Complainant upon which it is based, against Respondent Independent designs and Creations dba I D C Solar (LLC) be dismissed.

In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification.

Done this day, May 25, 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