ALJDEC decisions subject to certification as final

2012A-1552-ROC · Registrar of Contractors · 2012-09-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 14, 2012, at 8:00 a.m. APPEARANCES: Kevin Foley (hereinafter “Complainant”) appeared on his own behalf. Old World Construction LLC dba Green Monster (hereinafter “Green Monster”) 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. Green Monster is the holder of License No. B.237956-R issued by the Registrar of Contractors. 2. This is a residential matter where Green Monster installed a solar hot water heater and a Kilovolt Amp Reduction (“KVAR”) unit and sealed Complainant’s HVAC ducts for the total sum of $10,460.00. 3. Green Monster represented to Complainant that installing the solar hot water heater and the KVAR unit and completely sealing Complainant’s HVAC ducts would result in a 30% reduction in Complainant’s electric power usage. 4. Complainant’s electric bills more than doubled after Green Monster completed its construction work. Complainant complained to Green Monster and Green Monster modified and then removed the KVAR unit. When Green Monster’s repair attempts failed to resolve the problem, Complainant contacted another solar energy contractor to examine and correct Green Monster’s work on his residence. 5. The new solar contractor re-sealed all of Complainant’s duct work, installed solar panels on Complainant’s residence, and caused a properly licensed plumbing contractor to correct the installation of the solar hot water heater. 6. Complainant was informed that the local building authority had red- tagged and had never approved Green Monster’s installation of the solar hot water heater. Complainant then filed a formal complaint against Green Monster with the Registrar of Contractors. 7. The Registrar of Contractors did not conduct an onsite inspection because another contractor had already modified Green Monster’s work on Complainant’s residence. 8. Complainant testified that the solar hot water heater installed in his residence by Green Monster was red-tagged by the local building authority and remained uncorrected by Green Monster for over two years. Complainant’s solar hot water heater was finally corrected by another contractor at Complainant’s expense and has now been approved by the local building authority.[1] 9. Complainant testified that Green Monster falsely claimed that it had sealed Complainant’s HVAC ducts. Complainant stated that the entire HVAC duct work system had to be properly re-sealed by another contractor.[2] 10. Complainant testified that Green Monster orally represented that the KVAR unit was supposed to regulate the electrical power to each electrical appliance in Complainant’s residence. Green Monster removed the KVAR unit that apparently served no purpose.[3] 11. Complainant testified that Green Monster orally falsely represented that installation of the solar hot water heater, the installation of the KVAR unit, and the sealing Complainant’s HVAC duct work would be a $10,460.00 energy efficiency package that would only cost Complainant $4,000.00 after Federal, State, and SRP rebates. Complainant stated he only received a $1,274.50 rebate from SRP.[4] 12. Complainant testified that Green Monster orally falsely represented that the installation of the $10,460.00 solar energy package would reduce Complainant’s electrical bills by 30%. Complainant stated that Green Monster orally falsely represented that the reduction in Complainant’s electrical bills would more than offset the monthly payments that Complainant would be making on the $4,000.00 that Complainant would ultimately end up paying for the $10,460.00 energy efficiency package. Complainant testified that his electrical bills doubled after Green Monster completed its work on his residence.[5] 13. Administrative notice is taken of Green Monster’s prior license record as reflected on the Registrar of Contractors’ public website on September 20, 2012. Such prior license record reflects that License No. B.237956-R of Green Monster is current with three open complaints and one resolved/settled/withdrawn complaint. 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. A.R.S. § 32-1155(C) provides, in pertinent part, as follows: The registrar shall not issue a citation for failure to perform work in a professional and workmanlike manner or in accordance with any applicable building codes and professional industry standards if either: 1. The contractor is not provided an opportunity to inspect the work within fifteen days after receiving a written notice from the registrar. 2. The contractor's work has been subject to neglect, modification or abnormal use. 4. Undisputed credible testimony established that Green Monster left a red- tagged solar hot water heater operational in Complainant’s residence for a period of over two years and that Green Monster failed to properly seal Complainant’s HVAC duct work system. Undisputed credible testimony also established that Green Monster’s work had been modified by another contractor prior to the filing of the Complaint at issue and that Green Monster was not provided an opportunity to inspect the work at issue within fifteen days after receiving a written notification from the Registrar of Contractors. The applicable provisions of A.R.S. § 32- 1155(C) preclude a finding that Green Monster violated the charged provision of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108.[6] 5. Undisputed credible testimony established that Green Monster falsely and deceptively advertised and represented that the installation of the solar hot water heater, the installation KVAR unit, and the sealing of the Complainant’s HVAC ducts would result in a 30% reduction in Complainant’s energy bills. Undisputed credible testimony and evidence established that Green Monster falsely and deceptively advertised and represented that the Complainant would receive thousands of dollars in energy rebates from the Federal and State governments, and that Complainant failed to receive these rebates. This Tribunal concludes that Green Monster violated the charged provision of A.R.S. § 32-1154(A)(16).[7]

RECOMMENDed order

In view of the foregoing, it is recommended that License No. B.237956- R of Green Monster shall be placed on active license suspension for a period of thirty days on the effective date of the Registrar of Contractor’s Order to be immediately followed by 180 days of disciplinary probation. 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 24, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 9/14/12 Hearing Record (hereinafter “H.R.”) at 11:06-11:21. [2] H.R. at 11:30-11.41. [3] H.R. at 11:42-12:18. [4] H.R. at 12:33-13:58. [5] H.R. at 14:40-14:51. [6] A.A.C. R4-9-108 Workmanship Standards provides as follows:

A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[7] A.R.S. § 32-1154(A)(16) includes among the grounds for disciplinary action against a contractor’s license, false, misleading or deceptive advertising whereby any member of the public may be misled and injured

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