ALJDEC decisions subject to certification as final

2014A-2386-ROC-rhg · Registrar of Contractors · 2015-10-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 20, 2015, at 8:00 a.m. APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General John Tellier, Esq. P I C Construction Inc. DBA: Solar Sense and P I C Construction, Inc., DBA: Epcon Construction (hereinafter “Respondent”) was represented by its attorney, Ryan J. Lorenz, Esq. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On December 29, 2011, the Registrar issued License No. B.276134-R to Respondent. Sean Nicholas Donwen is listed as Respondent’s Qualifying Party and Officer. Pablo Panduro Curiel is listed as an Officer. 2. On December 29, 2011, the Registrar issued License No. B-1.276571-C to Respondent. Sean Nicholas Donwen is listed as Respondent’s Qualifying Party and Officer. Pablo Panduro Curiel is listed as an Officer. 3. On March 27, 2015, the Registrar on its own motion issued a Citation and Complaint against Respondent’s License Nos. B.276134-R and B-1.276571-C, charging in twenty five (25) counts various statutes as cause to discipline Respondent’s licenses. 4. Although Respondent’s answer was due on April 15, 2015, Respondent failed to file a timely answer as required by A.R.S. § 32-1155(B) and, as a result, all of the charges were deemed admitted. The Registrar issued a Default Decision and Order on April 24, 2015, revoking Respondent’s licenses. 5. On April 27, 2015, Respondent filed a motion for emergency relief and a motion to set aside the default. On May 4, 2015, the Registrar granted the motion for emergency relief, thereby staying, but not vacating, the April 24, 2014 Default Decision and Order.[1] 6. On September 9, 2015, the Registrar issued a Notice of Hearing. The Notice of Hearing provided that the hearing would be limited to the issue of the extent of the discipline to be imposed pursuant to A.R.S. § 32- 1158(B). 7. In its Default Decision and Order of April 24, 2015, the Registrar found that the Respondent had committed the following violations: 1. Count One: Respondent violated A.R.S. § 32-1154(A)(1)[2] in its abandonment of a contract with Phillip A. and Barbara Swanson without legal excuse. 2. Count Two: Respondent violated A.R.S. § 32-1154(A)(12)[3] by not including in its contract with Phillip A. and Barbara Swanson all of the elements that A.R.S. § 32-1158(B) requires.[4] 3. Count Three: Respondent violated A.R.S. § 32-1154(A)(14).[5] Respondent contracted with Phillip A. and Barbara Swanson in a name other than that which is set forth on Respondent’s Licenses. 4. Count Four: Respondent violated A.R.S. § 32-1154(A)(22).[6] Respondent failed to comply with the directive that the Registrar issued in Phillip A. and Barbara Swanson’s Complaint against Respondent. 5. Count Five: Respondent violated A.R.S. § 32-1154(A)(3),[7] namely, A.A.C. R4-9-108. [8] Respondent’s work at the residence of David Randolph Jackson (hereinafter “Mr. Jackson”) did not meet minimum construction standards. 6. Count Six: Respondent violated A.R.S. § 32-1154(A)(6).[9] Respondent committed a fraudulent act by misrepresenting to Sandra Grace Potfora (hereinafter “Ms. Potfora”) that the $1,987.87 down payment on the lease agreement with SunPower[10] was a utility incentive that she would not have to pay, resulting in substantial injury to Ms. Potfora. 7. Count Seven: Respondent violated A.R.S. § 32-1154(A)(15).[11] Respondent committed false, misleading, or deceptive advertising when it misrepresented to Ms. Potfora that the $1,987.87 down payment on the Lease Agreement with SunPower was a utility incentive that she would not have to pay. 8. Count Eight: Respondent violated A.R.S. § 32-1154(A)(12),[12] namely A.R.S. § 32-1158(B).[13] Respondent’s March 21, 2013, contract with David Thomas Osborne (hereinafter “Mr. Osborne”) did not contain all of the elements required by A.R.S. § 32-1158(B). 9. Count Nine: Respondent violated A.R.S. § 32-1154(A)(14). Respondent contracted with Mr. Osborne in a name other than that which is set forth on Respondent’s Licenses. 10. Count Ten: Respondent violated A.R.S. § 32-1154(A)(6). Respondent committed a fraudulent act resulting in substantial injury to Jeanne E. Kentch (hereinafter “Ms. Kentch”) when it turned Ms. Kentch’s account over to a collection agency to attempt to recover a cancellation fee that Respondent was not legally entitled to collect. 11. Count Eleven: Respondent violated A.R.S. § 32-1154(A)(14). Respondent’s Energy Efficiency Agreement with Ms. Kentch was in a name other than that which is set forth on Respondent’s licenses. 12. Count Twelve: Respondent violated A.R.S. § 32-1154(A)(15).[14] Respondent committed false, misleading, or deceptive advertising when it falsely represented to Ms. Kentch that her electric rates were increasing at a rate of 6% per year in order to induce her to sign the November 25, 2013 Energy Efficiency & Solar Agreement. 13. Count Thirteen: Respondent violated A.R.S. § 32-1154(A)(6). Respondent committed a fraudulent act resulting in substantial injury to Charles and Jennie Robertson (hereinafter “the Robertsons”) when it turned the Robertsons’ account over to a collection agency to attempt to recover a cancellation fee that Respondent was not legally entitled to collect. 14. Count Fourteen: Respondent violated A.R.S. § 32-1154(A)(6). Respondent’s Energy Efficiency Agreement with the Robertsons was in a name other than that which is set forth on Respondent’s licenses. 15. Count Fifteen: Respondent violated A.R.S. § 32-1154(A)(14). Respondent’s Energy Efficiency Agreement with Donald Lee Adams (hereinafter “Mr. Adams”) was in a name other than that which is set forth on Respondent’s licenses. 16. Count Sixteen: Respondent violated A.R.S. § 32-1154(A)(15). Respondent committed false, misleading, or deceptive advertising when it misrepresented the output of the photovoltaic system that Mr. Adams leased from ONEROOF. 17. Count Seventeen: Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. Respondent’s work at the residence of Jeffery A. and Debra K. Suchomel (hereinafter “the Suchomels”) does not meet minimum construction standards. 18. Count Eighteen: Respondent violated A.R.S. § 32-1154(A)(12). Respondent’s September 7, 2013 contract with the Suchomels did not contain all of the elements required by A.R.S. § 32-1158(B). 19. Count Nineteen: Respondent violated A.R.S. § 32-1154(A)(14). Respondent contracted with the Suchomels in a name other than that which is set forth on Respondent’s licenses. 20. County Twenty: Respondent violated A.R.S. § 32-1154(A)(15). Respondent committed false, misleading, or deceptive advertising when it falsely represented to the Suchomels that the photovoltaic system would produce enough energy to cover 100% of their electric bills and produce additional energy to sell back to the Suchomels’ electric company in order to induce the Suchomels to sign the September 7, 2013 contract to install a photovoltaic system at their residence. 21. Count Twenty-One: Respondent violated A.R.S. § 32-1154(A)(22). Respondent failed to take appropriate corrective action at the Suchomels’ residence as required by the Registrar’s October 31, 2014 directive. 22. Count Twenty-Two: Respondent violated A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108. Respondent’s work at the residence of Larry Harlan Reeves (hereinafter “Mr. Reeves”) did not meet minimum construction standards. 23. Count Twenty-Three: Respondent violated A.R.S. § 32-1154(A)(14). Respondent’s Energy Efficiency Agreement with Mr. Reeves was in a name other than that which is set forth on Respondent’s licenses. 24. Count Twenty-Four: Respondent violated A.R.S. § 32-1154(A)(22). Respondent failed to take appropriate corrective action at Mr. Reeves’ residence as required by the Registrar’s December 17, 2014 directive. 25. Count Twenty-Five: Respondent violated A.R.S. § 32-1154(A)(20).[15] Should the Registrar suspend or revoke either of Respondent’s licenses, such conduct or circumstances constituted a violation of A.R.S. § 32- 1154(A)(20) and all of Respondent’s other licenses shall also be disciplined. 8. Respondent’s named officer, Pablo Panduro Curiel (hereinafter “Mr. Curiel”) is named as the managing member and qualified individual on License No. 79838 issued by the Nevada State Contractors Board to EPCON Electric Nevada, LLC. On or about August 20, 2015, the Nevada State Contractors Board revoked License No. 79838 of EPCON Electric Nevada, LLC.[16] 9. An evidentiary hearing was held on October 20, 2015. The Registrar submitted eleven exhibits and presented the testimony of: (1) David R. Jackson; (2) Donald L. Adams; (3) Jeffrey A. Suchamel; (4) Debra Kay Suchamel; (5) Larry H. Reeves; (6) Sandra Potfora; and (7) Adam Stafford, the Assistant Chief Counsel at the Registrar’s Legal Department. Respondent submitted two exhibits. Hearing Testimony 10. Mr. Jackson testified that respondent’s construction work at his residence failed to comply with minimum construction standards. Mr. Jackson said that Respondent failed to comply with the written directive issued by the Registrar. 11. Mr. Adams testified that Respondent misrepresented the output of the photovoltaic system that Mr. Adams leased from ONEROOF. Mr. Adams said that the photovoltaic system installed on his residence never produces the amount of electricity promised by Respondent. 12. Jeffrey Suchamel (hereinafter “Mr. Suchamel”) testified that Respondent misrepresented the output of the photovoltaic system installed on his residence. Mr. Suchamel said that Respondent’s construction work on his residence failed to comply with minimum construction standards. Mr. Suchamel said that Respondent failed to comply with the written directive issued by the Registrar. 13. Debra Kay Suchamel (hereinafter “Mrs. Suchamel”) testified that she agreed with her husband. Mrs. Suchamel said that Respondent misrepresented the output of the photovoltaic system installed on her residence. Mrs. Suchamel said that Respondent’s construction work on her residence failed to comply with minimum construction standards. Mrs. Suchamel said that Respondent failed to comply with the written directive issued by the Registrar. 14. Mr. Reeves testified that the photovoltaic system installed on his residence was not installed in accordance with plans and specifications. Mr. Reeves said that Respondent’s construction work on his residence failed to comply with minimum construction standards. Mr. Reeves said that Respondent failed to comply with the written directive issued by the Registrar. Mr. Reeves said that he did not deny access to Respondent. Mr. Reeves acknowledged that he once worked for Respondent as a salesperson for approximately 30 days. 15. Ms. Potfora testified that Respondent misrepresented the output of the photovoltaic system installed on her residence. Ms. Potfora said that Respondent wrongfully represented that the $1,987.87 down payment on the lease agreement with SunPower was a utility incentive that she would not have to pay, resulting in substantial injury to her. Ms. Potfora said that Respondent installed the photovoltaic system panels on the wrong side of her roof. 16. Adam Stafford (hereinafter “Mr. Stafford”) testified that he is the Assistant Chief Counsel at the Registrar’s Legal Department. Mr. Stafford said that he was familiar with the Citation and Complaint against Respondent. Mr. Stafford said that the problems and issues set forth in the Citation and Complaint have not been resolved by the Respondent. Mr. Stafford said that Registrar had filed another complaint against Respondent based upon the fact that one of Respondent’s named officers, Pablo Panduro Curiel (hereinafter “Mr. Curiel”) is named as the managing member and qualified individual on License No. 79838 issued by the Nevada State Contractors Board to EPCON Electric Nevada, LLC and that license was revoked by the Nevada State Contractors Board. 17. All of the witnesses’ testimonies are found to be credible. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[17] 2. The Registrar bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[18] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[19] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[20] 3. The Notice of Hearing provided that the hearing would be limited to the issue of the extent of the discipline to be imposed pursuant to A.R.S. § 32-1158(B). The Registrar has already found cause to discipline Respondent’s licenses in twenty-five separate charges under Title 32, Chapter 10 of the Arizona Revised Statues. 4. Mr. Jackson testified that Respondent failed to comply with the written directive issued by the Registrar. The Suchamels testified that Respondent failed to comply with the written directive issued by the Registrar. Mr. Reeves said that Respondent failed to comply with the written directive issued by the Registrar. This Tribunal concludes that none of the workmanship problems in the witnesses’ complaints against the Respondent have been resolved by the Respondent. RECOMMENDED ORDER Based on the foregoing, it is recommended that Respondent’s License Nos. B.276134-R and B-1.276571-C shall be revoked. It is further recommended, in addition to the above-provided penalties, if any, that Respondent pay the sum of $1,500.00 to the Registrar by way of a civil penalty pursuant to A.R.S. § 32-1154(E).[21] 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 five days from the date of that certification. Done this day, October 29, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See Exhibit 2 (August 11, 2015 Order). [2] A.R.S. § 32-1154(A)(1) included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [3] A.R.S. § 32-1154(A)(13) included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” A.R.S. § 32-1154(A)(13) has been remembered as A.R.S. § 32-1154(A)(12). [4] A.R.S. § 32-1158(B) provides that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved after December 31, 2007 must be in writing and must include the following minimum terms: 1. The name of the contractor and the contractor’s business address and the license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar’s telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in ten point bold type. . . .

[5] A.R.S. § 32-1154(A)(14) included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]cting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license.” [6] A.R.S. § 32-1154(A)(23) included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” A.R.S. § 32-1154(A)(23) has been remembered as A.R.S. § 32-1154(A)(22). [7] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [8] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” [9] A.R.S. § 32-1154(A)(6) included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, the doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured. [10] SunPower is the owner of the photovoltaic system installed by Respondent on Ms. Potfora’s residence. [11] A.R.S. § 32-1154(A)(15) included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, false, misleading or deceptive advertising whereby any member of the public may be misled and injured. [12] A.R.S. § 32-1154(A)(12) included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, failure in any material respect to comply with this chapter. . [13] A.R.S. § 32-1154(B) provides as follows:

B. From and after December 31, 2007, any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365.

[14] A.R.S. § 32-1154(A)(15) included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, false, misleading or deceptive advertising whereby any member of the public may be misled and injured. [15] A.R.S. § 32-1154(A)(20) included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[h]aving a person named on the license who is named on any other license in this state or in another state which is under suspension or revocation unless the prior revocation was based solely on a violation of this paragraph.” [16] See Exhibit 11 (Nevada State Contractors Board Decision and Order). [17] See A.R.S. § 32-1154(A). [18] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [19] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [20] Black’s Law Dictionary at page 1220 (8th ed. 1999). [21] A.R.S. § 32-1154(E) provides as follows:

The registrar may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of subsection A, paragraph 22 of this section. Civil penalties collected pursuant to this subsection shall be deposited in the residential contractors' recovery fund. The failure by the licensee to pay any civil penalty imposed under this subsection results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. No future license may be issued to an entity consisting of a person, as defined in section 32-1101, subsection A, paragraph 6, who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.

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