ALJDEC decisions subject to certification as final

2012A-1540-ROC · Registrar of Contractors · 2013-01-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 4, 2013 APPEARANCES: Complainant Sharlene Hellberg appeared on her own behalf. Respondent Ever Electric LLC was represented by Cecilia Stiles, its member. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. K- 11.246238-D to Respondent Ever Electric LLC (“Respondent”). The Registrar received a Complaint against Respondent from Sharlene Hellberg (“Complainant”) regarding her solar system that was not properly tracking the sun. After the Registrar assigned the Complaint to its inspector, Cliff Corlett, for investigation, he performed a jobsite inspection. In the Corrective Work Order issued on April 9, 2012, Inspector Corlett indicated that “Respondent should properly repair solar system and tracking system as needed.” Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; and A.R.S. § 32- 1154(A)(23). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on January 4, 2013. Inspector Corlett testified about the Registrar’s standards. Complainant submitted 24 exhibits, testified on her own behalf, and presented the testimony of Ronald Murphy. Respondent submitted 41 exhibits and presented the testimony of Cecilia Stiles, its member, and Michael Harryman, an employee. Hearing Evidence The solar panels and tracking system at issue in this matter were installed prior to the Respondent’s contract to perform work. On May 5, 2010, Respondent provided a bid to Complainant indicating the work to be completed was as follows: A. FURNISH AND INSTALL EIGHT FOOT POWER POLE WITH 200 AMP UNDERGROUND SERVICE FOR SECONDARY POWER FROM UTILITIES COMPANY TO HOME B. RE-FEED UNDERGROUND FROM NEW SERVICE TO SHED FOR TRANSFER SWITCH TO FEED HOUSE C. DISCONNECT BATTERIES AND CHARGE CONTROLERS [sic] RE-TERIMINATE [sic] SOLAR PANELS AND TURBINS [sic] TO DISCONNECT AND TO INVERTORS D. FURNISH AND INSTALL PIPE WIRE AND DISCONNECT FOR FEEDS FROM INVERTERS TO NEW SERVICE FOR ON-GRID E. INSTALL CHECK METER AND TEST THE SYSTEM FOR ON-GRID

On June 9, 2010, Respondent contracted with the United States Department of Agriculture (“USDA”) to perform electrical work at Complainant’s property. Respondent was “[t]o comply with the Contract and/or Bid and to complete the project in a timely manner.” Complainant acknowledged she never entered into a contract with Respondent. At some point during the project, the tracking system stopped working. Complainant contacted Respondent regarding the tracking system. Complainant admitted the tracking system was not working prior to the first time Respondent examined it. Respondent checked the power supply going to the tracking system to determine if that was the cause of the malfunction. Respondent was unable to identify any problem. Respondent concluded the problem was with the tracking system’s motor. Respondent “jumped” the motor to move the solar panels to a “tabletop” position. Inspector Corlett testified that at the pre-hearing inspection, there was no change in the position or functioning of the solar panel. Respondent argued the solar panels and tracking system were beyond the scope of its contract with the USDA. Respondent admitted it attempted to determine if there was a power supply issue to the tracking system that it could address. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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. While not specifically argued as a defense, Respondent maintained that it had contracted with the USDA and not directly with Complainant. The legislature has not required privity of contract for a member of the public to have standing to make a complaint to the Registrar against a contractor’s license. Instead, any person who is injured by a contractor’s statutory violation has standing to make a complaint, regardless of privity. See, e.g., A.R.S. § 32-1132(A) and A.R.S. § 32- 1156.01. For example, if a contractor’s excavation of adjoining land undermines a foundation, he is responsible to the adjacent property owner for resulting damage. If a painting subcontractor leaves overspray on vehicles when he paints a parking structure, he is responsible to the vehicles’ owners for the damage to their property. To that extent, Respondent may be responsible for damages caused to Complainant that resulted from Respondent’s actions. 4. Because Respondent had not contracted to perform any work on the solar panels or the tracking system, Complainant did not establish that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1). 5. Complainant did not establish that Respondent was responsible for the failure of the tracking system and/or failed to repair the tracking system in violation of industry standards or was not professional and workmanlike in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108. 6. The CWO required Respondent to properly repair the solar system and tracking system as needed. Respondent established that the parties’ contract did not require Respondent to perform any work on the solar system or tracking system. Therefore, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(23) by failing to comply with the Registrar’s written directive. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final Order in this matter, the Registrar dismiss Complainant Sharlene Hellberg’s Complaint in Case No. 2012-1540 against Respondent Ever Electric LLC’s License No. K-11.246238-D. In the event of certification of the 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 that certification. Done this day, January 24, 2013.

/s/ Tammy L. Eigenheer 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