ALJDEC decisions subject to certification as final

2015A-3017-ROC · Registrar of Contractors · 2016-05-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 5, 2016, at 10:00 a.m. APPEARANCES: Richard W. Turkiewicz (“Complainant”) appeared on his own and Marcia Turkiewicz’s behalf; 3 Star Homes and Remodeling Inc. (“Respondent”) appeared through Dan Starwalt (“Mr. Starwalt”), an officer. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On September 10, 2006, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B.224034-R for residential general contracting to Respondent. According to the Registrar’s public website, License No. B.224034-R has been revoked since December 8, 2015. 2. On February 26, 2012, the Registrar issued License No. CR11.277334- D for dual electrical contracting to Respondent. According to the Registrar’s public website, License No. CR11.277334-D also has been revoked since December 8, 2015. 3. The Registrar revoked both of Respondent’s licenses because it had allowed the licenses to be used by an unlicensed contractor, Stealth Solar, without exercising appropriate oversight over Stealth Solar’s operations.[1] 4. On July 14, 2015, Complainants filed a complaint with the Registrar against Respondent, alleging that they had purchased a solar system from Stealth Solar for their residence at 259 W. Walhalla Ln., Phoenix, Arizona 85027, that the solar panels had stopped working four times after installation, and that the first two times, Stealth Solar had repaired the system, but that the third time they had had to pay additional monies to Stealth Solar to have the system repaired. Complainant testified that the fourth time the system quit working, Stealth Solar had refused to perform any repairs. 5. The complaint was assigned to the Registrar’s Investigator Steve Klein (“Investigator Klein”) for investigation. Investigator Klein performed a jobsite inspection and on October 16, 2015, sent a letter to Complainant stating that because the Registrar had determined that there were no workmanship issues, the complaint was dismissed. 6. Complainant subsequently asked to amend the complaint. Investigator Klein performed a second jobsite inspection and on December 17, 2017, issued a Directive, requiring that Respondent perform the following corrective work: Solar panel connection wires should be secured per 2012 IRC Table E38021.1 General Installation and support requirements or per local building department.

7. Complainant eventually requested a hearing on the complaint. 8. On February 22, 2016, the Registrar issued a Citation against Respondent’s contractor’s licenses, charging cause to discipline the licenses under A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). 9. Respondent filed a timely written answer to the Citation, denying any cause to discipline its license and stating that Investigator Klein was not familiar with solar systems. 10. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 11. A hearing was held on May 5, 2016. Complainant testified on his own behalf. Mr. Starwalt testified on Respondent’s behalf. Investigator Klein also testified. / / / / Hearing Evidence 12. Investigator Klein testified that at his initial September 29, 2015 jobsite inspection, the solar system was operational and that Complainant’s only complaint was the system was not producing enough power. Investigator Klein testified that because he was unable to verify that the system was not producing the promised power, he dismissed the complaint. 13. Investigator Klein testified that on November 14, 2014, Complainant amended the complaint to allege that the wiring on the system was not secure. Investigator Klein testified that he saw at the second jobsite inspection that the wiring was not secured according to the electrical code. Investigator Klein testified that he was unable to find any requirements specifically for solar systems. 14. Investigator Klein testified that the code allowed the wires to be secured with ties. Investigator Klein testified that he did not know whether the panel needed to be removed. Investigator Klein acknowledged that he was not an expert on solar systems. 15. Complainant testified that he obtained a bid from an electrician in the amount of $2,500.00 to secure the wires. Complainant testified that the high cost of the repair was due to the electrician’s opinion that the panel needed to be removed to secure the wires. Although Complainant testified that he sent the bid to the Registrar, he could not locate it in the Registrar’s electronic file. 16. Complainant also did not provide a copy of the $2,500.00 bid to Respondent. 17. Investigator Klein testified that on January 5, 2016, he performed a prehearing inspection and that the directive had not been complied with. 18. Complainant testified that he did not allow Respondent to attempt to comply with the December 17, 2015 Directive because its licenses were revoked. 19. Mr. Starwalt testified that the code section cited in the December 17, 2015 Directive concerned GFIs, not solar systems. The panel did not need to be removed and securing the wires would be a half- hour project. Mr. Starwalt did not think that the loose wires on the solar system violated the electrical code. 20. Complainant acknowledged that the solar system was working and that his utility bills were substantially reduced. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[2] 2. Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 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.”[6] 4. Complainant established that the wires on the solar system needed to be secured. Therefore, Complainant established cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(3),[7] namely A.A.C. R4- 9-108.[8] 5. Complainant did not need to allow access to Respondent to comply with the December 17, 2015 Directive after its license was revoked. Nonetheless, Respondent should have been able to pay a competent licensed electrician of Complainant’s choice to secure the wires. Complainant insisted on payment of $2,500.00 to remove the panel, however, even though the system was operating properly. Complainant did not establish that this extensive repair was necessary to secure the wires. Because a revoked license does not justify extortion, Complainant did not establish additional cause to discipline Respondent’s licenses under A.R.S. § 32-1154(A)(22).[9] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Respondent 3 Star Homes and Remodeling, Inc.’s License Nos. B.224034-R and CR11.277334-D shall be suspended for a period of three business days, in addition to the pre-existing revocations. 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, May 9, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See, e.g., OAH Case No. 2015A-629-ROC (the Registrar’s Case No. 2015- 629). [2] See A.R.S. § 32-1154(A). [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary at page 1220 (8th ed. 1999). [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)(22) includes 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.”

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