ALJDEC decisions subject to certification as final - Amended

2011A-5414-ROC · Registrar of Contractors · 2012-07-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 10, 2012, at 8:00 a.m. APPEARANCES: Complainants appeared through Denny Pynn. Arizona Discount Solar LLC (hereinafter “Discount Solar”) 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. Discount Solar is the holder of License No. C-11.265201-R issued by the Registrar of Contractors. 2. This is a residential matter where Discount Solar installed a solar panel system on Complainants’ residence. 3. On or about August 18, 2011, Discount Solar issued a Notice of Termination of Contract Agreement wherein Discount Solar stated that all work was “ceased” on Complainants’ residence and that Discount Solar would be seeking additional monies from Complainants for damages and interest.[1] 4. On or about August 23, 2011, an assigned Agency Inspector with the Registrar of Contractors conducted a Building Confidence Inspection at Complainants’ residence. The Building Confidence Inspection found that Discount Solar’s construction work on Complainants’ residence did not meet applicable workmanship standards.[2] 5. There was no dispute that Discount Solar failed to respond to the Building Confidence Recommendation. 6. On or about September 29, 2011, the City of Casa Grande Building Division issued a Correction Notice to Discount Solar requiring designated corrective action on Complainants’ residence. Discount Solar failed to comply with the terms of the Correction Notice issued by the City of Casa Grande Building Division.[3] 7. When Discount Solar failed to comply with the terms of the Correction Notice Complainants filed a formal Complaint against Discount Solar with the Registrar of Contractors. 8. On November 17, 2011, Discount Solar issued a letter to Mr. Grochocki which provided, in pertinent part, as follows: I will be out of the country from 12/2-12/16, and the following week begins the Christmas and New Years holidays, when I will again be out of town. As such, I’d like to delay until January.

Should the AHJ[4] decide negatively, I have no choice but to move into Superior Court and immediately ask for an injunction to prevent enforcement until the case is heard in Court (on the grounds that it inhibits my ability to make a living if ROC can suspend my license over it). At that point, I’ll seek further delays of any inspections or further ROC actions.[5]

9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Frank Grochocki (hereinafter “Inspector Grochocki”), conducted an onsite inspection. On November 28, 2011, Inspector Grochocki issued a written Corrective Work Order directing Discount Solar to perform designated corrective work on Complainants’ residence. 10. The Corrective Work Order provided, in pertinent part, as follows: * Contractor to correct all items requiring correction by City of Casa Grande Building and pass final inspection and comply with manufacturers specs necessary for warranty.

1) Complaint of: “Contractor failed to fulfill terms of agreement”, contractor to fulfill contract as agreed.

2) Complaint of: “Contractor departed from plans and specs”, jobsite found not per manufacturers specs, contractor to correct by appropriate means.

3) Complaint of: “Contractor abandoned contract”, unable to determine[,] no action required.

4) Complaint of: “Poor work”, addressed [in] other complaint items.

5) Complaint of: “Panels not within manufacturer[‘]s specs, no warranty”, contractor to complete project within manufacturers specs to obtain warranty by appropriate means.

6) Complaint of: “PV panels not grounded”, contractor to ground as per [C]ity of Casa Grande code and correction notice and manufacturers specs by appropriate means.

7) Complaint of: “Conduit not supported to racking and structure”, contractor to correct as per [C]ity of Casa Grande correction notice by appropriate means.

8) Complaint of: “Tile hooks not fastened properly”, unable to determine from jobsite, no action required.

9) Complaint of: “Numerous pinched AC and DC lines”, jobsite found several pinched lines, contractor to correct by appropriate means.

10) Complaint of: “Needs to be 2 neutral wires”, unable to determine from jobsite, no action required.

11) Complaint of: “200 amp meter socket has #10 wire on lug rated for #6”, contractor to correct as per [C]ity of Casa Grande correction notice by appropriate means.

12) Complaint of: “End clamps not to specs”, jobsite found several not installed per manufacturers specs, contractor to correct by appropriate means and specs.

13) Complaint of: “Contractor needs to utilize leveling feet and flush out panels”, jobsite found loose connector at leveling feet, contractor to correct by [appropriate] means.

14) Complaint of: “Need protective inserts on stainless steel straps”, unable to determine from jobsite, no action required.

15) Complaint of: “Trunk lines going to J-boxes need strain reliefs”, jobsite found missing strain reliefs and connectors, contractor to correct all fittings per [C]ity of Casa Grande correction notice and manufacturers specs by appropriate means.

16) Complaint of: “Grounding issues”, contractor to correct as per [C]ity of Casa Grande correction notice and manufacturers specs by appropriate means.

17) Complaint of: “Need conduit fittings rated for wet use”, contractor to correct as per [C]ity of Casa Grande correction notice by appropriate means.

18) Complaint of: “Inverters not grounded to racking”, contractor to ground as per [C]ity of Casa Grande and manufacturers specs by appropriate means.

19) Complaint of: “No correct [i]n[-]phase map with serial numbers given”, not specified in contract, unable to determine from jobsite, no action required.

20) Complaint of: “Numerous cables touching roof”, jobsite found several cables touching roof, not per specs, contractor to correct by appropriate means.

21) Complaint of: “Bowed panels need adjusting”, contractor to adjust as per manufacturers specs by appropriate means.

22) Complaint of: “Two panels/inverters not producing”, unable to determine from jobsite, no action required.

23) Complaint of: “No specs supplied for tile hooks installed on roof”, unable to determine from jobsite, no action required.

24) Complaint of: “Splice plate not attached properly”, jobsite found loose splice plate, contractor to correct by appropriate means.

25) Complaint of: “Exposed inverters and connections between panels”, jobsite found exposed connections, contractor to correct as per [C]ity of Casa Grande correction notice and manufacturers specs by appropriate means.

11. Inspector Grochocki testified that he did not perform a prehearing inspection because Discount Solar had failed to perform any of the corrective action set forth in the Corrective Work Order.[6] 12. Phillip Ramsey (hereinafter “Mr. Ramsey”) testified that he is the qualifying party for GreenFuel Technologies LLC, which holds License No. KB-1.229492-D and License No. K-11.252305-D issued by the Registrar of Contractors. Mr. Ramsey inspected the construction work performed by Discount Solar on Complainants’ residence. Mr. Ramsey testified that the construction work performed by Discount Solar failed to comply with applicable workmanship and industry standards and applicable building code requirements. Mr. Ramsey stated that Discount Solar’s construction work on Complainants’ residence constituted a possible health and safety danger.[7] 13. The manufacturer of the solar panels installed on Complainants’ residence reviewed photographs of the solar panel installation. The manufacturer then issued a letter stating that the solar panel installation on Complainants’ residence violated the manufacturer’s installation guidelines.[8] 14. Denny Pynn (hereinafter “Mr. Pynn”) testified that the construction work performed by Discount Solar failed to comply with applicable building code requirements and presented a health and safety danger to his family. 15. On or about November 29, 2011, GreenFuel Technologies LLC corrected Discount Solar’s construction work on Complainants’ residence. Complainants paid GreenFuel Technologies LLC the sum of $4,936.51 for removing and properly reinstalling the solar panels on Complainants’ residence.[9] 16. Mr. Pynn testified that he caused Discount Solar’s construction work to be corrected by GreenFuel Technologies LLC before the fifteen days provided in the Corrective Work Order had elapsed because he knew from the contents of Discount Solar’s letter of September 17, 2011, that Discount Solar was not going to perform any corrective action on his residence and he knew that there was “something sizzling” on his roof.[10] 17. Complainants’ actions in causing an alternative licensed contractor to remove and reinstall the solar panels on Complainants’ residence before the expiration of the fifteen-day period set forth in the Corrective Work Order were shown to be reasonable and justified based upon Discount Solar’s stated intent not to return to the construction project and Complainants’ safety concerns. 18. Undisputed credible evidence established that Discount Solar engaged in False, misleading or deceptive advertising whereby any member of the public may be misled into believing that Discount Solar was a properly licensed commercial contractor. Undisputed credible evidence also established that Discount Solar knowingly misrepresented its construction experience and available solar rebates.[11] 19. Administrative notice is taken of Discount Solar’s prior license record as reflected on the Registrar of Contractors’ public website on July 20, 2012. Such prior license record reflects that License No. C-11.265201-R of Discount Solar was suspended on April 20, 2012, because Arizona Discount Solar LLC was dissolved and suspended again on May 16, 2012, for lack of bond. 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 these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. Discount Solar stopped work on Complainants’ construction project and refused to perform corrective action on Complainants’ solar panel installation to bring it within applicable workmanship and code requirements. This tribunal concludes that Discount Solar violated the charged provision of A.R.S. § 32-1154(A)(1) (abandonment). 4. Discount Solar failed to install the solar panels on Complainants’ residence in accordance with the manufacturer’s specifications. The City of Casa Grande Building Division issued a Correction Notice directing Discount Solar to correct its work on Complainants’ residence to comply with applicable code requirements. Discount Solar failed to comply with the terms of the Correction Notice. This tribunal concludes that Discount Solar violated the charged provision of A.R.S. § 32-1154(A)(2) (departure from plans, specifications, and building codes). 5. Inspector Grochocki and Mr. Ramsey testified that Discount Solar’s construction work on Complainants’ residence failed to comply with applicable workmanship and industry standards. This tribunal concludes that Discount Solar violated the charged provision of A.R.S. § 32- 1154(A)(3), namely, A.A.C. R4-9-108 (failure to perform work in a professional and workmanlike manner). 6. Discount Solar knowingly engaged in misleading and deceptive advertising regarding its construction experience and its ability to perform commercial construction work. This Tribunal concludes that Discount Solar violated the charged provision of A.R.S. § 32-1154(A)(16) (use of misleading and deceptive advertising). 7. Discount Solar’s construction work on Complainants’ residence was corrected by an alternative licensed contractor, GreenFuel Technologies LLC, before the fifteen day period set forth in the Corrective Work Order expired. This Tribunal concludes that a violation of the charged provisions of A.R.S. § 32-1154(A)(23) (failure to take appropriate corrective action) was not established. 8. Complainants established that health or safety issues justified their immediate hiring of another contractor to remedy Discount Solar’s statutory violations rather than waiting the time set forth in the Corrective Work Order. Therefore, Complainants established that they are entitled to an award of restitution under A.R.S. § 32-1156.01. RECOMMENDed order In view of the foregoing, it is recommended that on the effective date of the Registrar’s Order, License No. C-11.265201-R of Discount Solar shall be revoked unless the Registrar of Contractors receives and accepts written proof that Discount Solar has paid Complainants the sum of $4,936.51 as restitution and has provided Complainants written proof that the manufacturer will honor its warranty for the solar panels installed on Complainants’ residence and that Discount Solar has corrected its advertising to properly show its actual construction experience and eliminate all references to the performance of commercial construction work. It is further recommended that if on or before the effective date of this Order, Discount Solar provides acceptable proof that it has paid Complainants the sum of $4,936.51 as restitution and has provided Complainants written proof that the manufacturer will honor its warranty for the solar panels on Complainants’ roof and that Discount Solar has properly corrected all of its adverting to show its actual construction experience and eliminate all reference to commercial contracting, then the above provided License revocation shall not take place and instead Discount Solar’s License shall be actively suspended for a period of one year. 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, July 31, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Exhibit No. C-15 (8/18/11 Notice of Termination). [2] See Exhibit C-16 (Building Confidence Program document). [3] See Exhibit No. C-20 ( 9/29/11 Correction Notice). [4] Record unclear as to what AHJ represents. [5] Exhibit No. C-22 (11/17/11 Letter). [6] 7/10/12 Hearing Record (hereinafter “H.R.”) at 13:30-13:55. [7] H.R. at 19:29-33:49. [8] See Exhibit No. C-24 (1/3/12 letter from REC Solar US LLC). [9] See Exhibit No. C-33 (12/5/11 Letter/attachments). [10] H.R. at 1:09:25-1:13:22. [11] See Exhibit C-29 (Discount Solar advertisement and attachments).

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