ALJDEC decisions subject to certification as final

2012A-5659-ROC · Registrar of Contractors · 2013-08-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 30, 2013 APPEARANCES: Complainants Aaron and Roxanna Carlson appeared on their own behalf. Respondent Shaughnessy Contracting Inc appeared through Jeff Shaughnessy, Owner and Qualifying Party. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. B- 095713-R to Shaughnessy Contracting Inc (“Respondent”). The Registrar received a Complaint against Respondent from Aaron and Roxanna Carlson (“Complainants”) regarding the photovoltaic system installed by Respondent at 24927 West Quails Nest Lane, Wittmann, Arizona. After the Registrar assigned the Complaint to its inspector, Beau Cruz, for investigation, he performed a jobsite inspection. Following the jobsite inspection, Inspector Cruz issued a Corrective Work Order (“CWO”) noting that Respondent failed to install the monitoring system that was included in the cost of the system and was responsible for providing all accompanying manuals for the system to Complainants. Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of 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. Inspector Cruz testified that at the prehearing inspection, he observed the monitoring system had been installed, but he was not able to determine if it was operational. Inspector Cruz also noted that Complainants were provided paperwork for a 6,240 watt system while the contract was for a 6,720 watt system. A hearing was held on July 30, 3013. Inspector Cruz testified about the Registrar’s standards. Complainants submitted five exhibits and presented the testimony of Ms. Carlson. Respondent presented the testimony of Jeff Shaughnessy, its owner and Qualifying Party. Hearing Evidence While considering the photovoltaic system, Complainants provided Respondent with 12 months of electric bills. Complainants were told the system proposed by Respondent would save them approximately $250.00 per month on their electric bills. Complainants also specifically addressed their desire that the panels not be visible from the front of the road in front of their home. Complainants contracted with Respondent to install 6,720 watt photovoltaic system and monitoring system on their home. Respondent installed the photovoltaic system, but did not install the monitoring system. As installed, the panels were clearly visible from the street in front of Complainants’ home. After installation, Complainants observed the system was not producing the level of energy they were assured it would produce. Complainants reported they system was unable to fully power the air conditioning unit even when it was the only significant draw on the system. Complainants contacted CentroSolar, the manufacturer of the panels. A representative from CentroSolar informed Complainants that, based on their usage, the system installed on their home was not sufficient to meet their needs. Complainants were also informed they should have been provided with documentation relating to the system installed that would answer some of their questions. Complainants contacted Respondent multiple times regarding the insufficiencies of the system. Respondent indicated the system was appropriate based on the three months of electric bills provided by Complainants. Respondent was relying on electric bills from January, February, and March, rather than a full year of bills as was provided by Complainants. Respondent also indicated the system installed was the system agreed to in the contract. When no resolution was reached, Complainants filed the instant Complaint. In the Complaint, it was alleged that Respondent “grossly underestimated the size of the system,” mounted the panels too far forward on the roof so they were visible from the road, failed to have the proper hardware for racking system, failed to provide skilled labor for the installation, failed to fulfill its promise to reconcile placement of the panels, failed to install the monitoring system, failed to provide the production report from manufacturer, did not return phone calls or email messages promptly, and offered to make things right but has made no effort to do so. Following the jobsite inspection, Inspector Cruz determined Respondent failed to install the monitoring system that was included in the contract and failed to provide the documentation relating to the system. Respondent was directed to take corrective action on those items within 15 calendar days from the date of the CWO. With respect to the other issues raised in the Complaint, Inspector Cruz was unable to find any violations because he was not privy to the conversations that took place between Complainants and Respondent, the work had been corrected prior to the inspection, or the Registrar did not have jurisdiction over the item. More than one month after the CWO was issued, Respondent provided Complainants with paperwork relating to a 6,240 watt system while the contract was for a 6,720 watt system. As of the date of the hearing, Complainants had not been supplied with the proper paperwork. Also more than one month after the CWO was issued, Respondent installed the monitoring system. However, the monitoring system was not operational and had not been corrected as of the date of the hearing. Complainants acknowledged the system installed by Respondent was the system required by the contract, but alleged Respondent was less than truthful in securing the contract by promising the system would deliver more electricity and save them more money than it did. Complainants stated they learned a hard lesson, but hoped to protect other consumers from Respondent’s deceptive business practices. Respondent stated it installed the system called for the in the contract and fulfilled its obligations under the contract. Respondent denied any knowledge that the monitoring system was not operational. 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. Undisputed credible testimony established that the monitoring system installed was not operational and the paperwork provided was not applicable to the system installed. 4. Complainant established that Respondent’s installation of the monitoring system and paperwork provided were not professional and workmanlike in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9- 108. 5. Complainant established that Respondent failed to take appropriate corrective action within a reasonable period of time after receiving a written directive from the Registrar constituting two violations of A.R.S. § 32-1154(A)(23). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Shaughnessy Contracting Inc’s License No. B-095713-R until it has performed in a professional and workmanlike manner the work that the CWO directed it to perform. It is further recommended that if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is acceptable to the Registrar that it has performed in a professional and workmanlike manner the work that the CWO directed it to perform, the Registrar should not suspend Respondent’s license but, instead, shall close the Complaint in Case No. 2012-5659. It is further recommended that the Registrar require Respondent to pay the sum of $1,000.00 as a civil penalty pursuant to A.R.S. § 32- 1154(D). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, August 19, 2013.

/s/ Tammy L. Eigenheer 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