ALJDEC decisions subject to certification as final

2012A-3236-ROC · Registrar of Contractors · 2013-03-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 25, 2013

APPEARANCES: Complainant appeared on her own behalf; Respondent was represented by authorized representative Margaret McCreanor, Photovoltaic Systems Designer.

WITNESSES: Rick Emry, ROC Inspector Constance Crotty

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action against Respondent based on work done at her house regarding a solar heating system installed on her roof. The Citation and Complaint issued by the Registrar of Contractors (“Registrar” or “ROC”) cites poor workmanship as a possible violation. Respondent denies the allegation. This tribunal entered the complaint file received from the ROC into the record, along with exhibit packets prepared by both Complainant and Respondent. Testimony was presented from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation. FINDINGS OF FACT 1. Respondent is the holder of License No. C-5.118299-R, a restricted specialty residential contracting license issued by the Registrar that allows Respondent to perform “solar product hook up only.”[1] Ben Mancini is the Qualifying Party on the license. 2. Pursuant to a contract for installation of a solar electric system, Respondent performed installation work at Complainant’s house in 2012. On June 29, 2012, Complainant filed a complaint against Respondent with the ROC, describing four complaint items: 1) an issue with the amount of the final payment she was billed for; 2) a claim of a damaged concrete driveway; 3) a failure to investigate a “loud bang” heard in her garage one day; and 4) a request that Respondent honor its warranty (but there is no allegation that Respondent has not done so). 3. On July 17, 2012, ROC Inspector Cliff Frandsen performed a jobsite inspection and made the following notes, which are found in the complaint file: Notes: the complainant submitted a 4 item list of complaints re: alleged consequences involving the installation of a solar system on this home. #1. Involves a disputed money amount in the contractual obligations of the respondent. #2. H/O claims her concrete driveway was damaged by workers during the installation of the system. She did not witness this event. The damage is consistent with spalling that occurs during the freeze/thaw cycle. #3. The H/O claims that she heard a loud bang from the garage area approx. 2 weeks after the last work was performed. Apparently this [sic] was no damage. There is no indication what the cause of this noise could have been. #4. The H/O would like the respondent to honor the warranty provided, but she is not clear about what is not being taken care of.

Mrs. Crotty made no mention of the system itself or any deficiency with the system.

Inspector Frandsen did not find poor workmanship and, therefore, did not issue a Corrective Work Order. 4. Complainant requested a hearing. At the hearing, she stated that there was no workmanship issue with the concrete driveway. Instead, she wanted to present information about the other items in her complaint. The Administrative Law Judge informed her that only workmanship was relevant because the Citation and Complaint cited only poor workmanship as the issue. 5. At the hearing, the Administrative Law Judge took testimony from ROC Inspector Rick Emry, who was filling in for Inspector Frandsen who was not available because of a medical issue. Inspector Emry testified that he had not viewed the jobsite himself, but could merely testify based on Inspector Frandsen’s notes. The Administrative Law Judge had Inspector Emry go over the notes on the record and allowed the parties to ask questions. 6. The Administrative Law Judge precluded Complainant from presenting evidence at the hearing about contractual payment issues because they are not relevant to workmanship. Complainant presented information about her warranty issue (item 4), but that too is not relevant to workmanship.[2] Additionally, Complainant presented information about the “loud bang,” but acknowledged that she has no evidence as to the cause of it or even what it is. Finally, Complainant wished to present information about clamps that she claims should have been used by Respondent, but that allegation was not alleged in the complaint and so she was precluded from doing so. The Administrative Law Judge informed Complainant numerous times, both in orders issued prior to the hearing and during the hearing, that the only issue to be addressed was workmanship, and only such workmanship issues that had been raised in her complaint. 7. Complainant did not present evidence to show poor workmanship regarding the concrete driveway, which this tribunal finds is the only workmanship item alleged in the complaint. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainant has not met that burden. 2. The Citation and Complaint alleges violation of A.R.S. § 32- 1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship). The evidence does not show that Respondent failed to meet workmanship standards. 3. There being no violations found, this matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2012-3236 against Respondent E V Solar Products, Inc. be dismissed.

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, March 13, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Administrative notice is taken of Respondent’s license record as reflected on the Registrar’s public website on March 13, 2013. The information in Finding of Fact 1 comes from that website. [2] She also presented information about the warranty for her roof that was built by another contractor, which is outside the scope of workmanship and not alleged in her complaint. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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