ALJDEC decisions subject to certification as final

2015A-978-ROC · Registrar of Contractors · 2016-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 10, 2016, at 8:00 a.m. The record was held open until February 20, 2016. APPEARANCES: William F. Bizzak (hereinafter “Mr. Bizzak” or “Complainant”) appeared on his own behalf. Solar Solution AZ LLC (hereinafter “Respondent”) was represented by Neal Eckel, Esq. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(3) and 32-1154(A)(22) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background and Procedure Respondent is the holder of License No. CR11.282700-D. Respondent’s license was current on March 7, 2016. This is a residential matter in which on or about July 31, 2013, Respondent performed construction work in Complainant’s residence located at 5154 Camino del Norte, Sierra Vista, Arizona 85635 (hereinafter the “residence”). Shortly after Respondent completed its construction work at Complainant’s residence, Complainant discovered that there were several deficiencies in the construction work that Respondent had performed at his residence. When Respondent failed to correct the problems with its construction work, Complainant filed a Complaint (ROC Case No. 2014-408) against Respondent with the Registrar. The Complaint was resolved and Case No. 2014-408 was closed by the Registrar. On or about March 4, 2015, the Complainant filed Complaint No. 2015-978 against Respondent with the Registrar. On June 23, 2015, the Registrar issued a letter dismissing the second complaint. The June 23, 2015, letter provided, in relevant part, as follows: The Registrar received and investigated your complaint. The Registrar determined that the allegations you have made in Case No. 2015-978 have already been investigated and addressed by the Registrar in Complaint No. 2014-408. Therefore, the Registrar will not issue a citation in this matter.

Complainant disagreed with the dismissal and the matter was re-opened and an onsite inspection was performed by an assigned Registrar Investigator. On August 10, 2015, a written Directive for Case No. 2015-978 was issued by the Registrar. The written Directive provided, in relevant part, as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). You are hereby directed to remedy the following violations by the appropriate means:

1. Complaint Item 1: “Couplings to the solar water collector pipes continue to separate causing water to leak.”

2. Complaint Item 3: “One of the electric solar inverters is not functioning.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Complainant asserted that Respondent had failed to comply with the written Directive and requested the Registrar to issue a Citation against Respondent’s licenses. On September 1, 2015, the Registrar issued a Citation for Alleged Violations of A.R.S. § 32-1154 and rules adopted by the Registrar. That Citation contained two charges: Charge 1: A violation of Rule 4-9-108, titled ‘Minimum construction Standards,’ in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3).[1]

Charge 2: A violation of A.R.S. § 32-1154(A)(22).[2]

Testimony The assigned Registrar Investigator, Frank Grochocki (hereinafter “Investigator Grochocki”), testified that the first Registrar Investigator Mike Nieves had retired and that he had been assigned the case. Investigator Grochocki stated that he performed an onsite compliance inspection at Complainant’s residence on February 3, 2016. Investigator Grochocki said that Complainant had caused another contractor to correct the couplings to the solar water collector pipes. Investigator Grochocki said that one of the inverters appeared to be not working during his inspection. Investigator Grochocki’s testimony is found to be credible. Kevin Krause (hereinafter “Mr. Krause”) testified that he performed an onsite inspection of the solar pool heating system at Complainant’s residence. Mr. Krause stated that he observed numerous leaks in the system. Mr. Krause said that the couplers for the solar pool heating system were not properly placed. Mr. Krause acknowledged that The Solar Store LLC replaced all of the leaking couplers in 2014.[3] Mr. Bizzak testified that all of the work performed by Respondent was faulty and had to be replaced. Mr. Bizzak stated that his residence had suffered extensive water damage caused by Respondent’s poor construction work. Mr. Bizzak acknowledged that Respondent’s work had been corrected by an alternative contractor. Mr. Bizzak acknowledged that it had been raining on July 29, 2015, when Investigator Nieves conducted his jobsite inspection on July 29, 2015, and that Investigator Nieves’ jobsite inspection notes indicated that Investigator Nieves observed no roof leaks at Complainant’ residence. Mr. Bizzak testified that he had agreed to send the Respondent an estimate for the repair of the couplings to the solar water collector pipes. Mr. Bizzak acknowledged that he had not sent an estimate to the Respondent. Mr. Bizzak said that he had not sent the estimate because Respondent was not properly licensed to perform that type of construction work. Mr. Bizzak testified that Respondent had failed to comply with the terms of the written Directive. Mr. Bizzak acknowledged that Respondent had offered to reimburse him for the cost of correcting the couplings to the solar water collector pipes. Mr. Bizzak acknowledged that Respondent had corrected the electric solar inverter. Mr. Bizzak stated that the electric solar inverter had stopped working. Daniel Schippers (hereinafter “Mr. Schippers”) testified that he is a project manager for Respondent. Mr. Schippers stated that he was present for the July 29, 2015 jobsite inspection with Investigator Nieves. Mr. Schippers said that he saw no evidence of roof leakage during the inspection. Mr. Schippers testified that Complaint Item No. 1 of the August 10, 2015 written Directive was for the correction of work that had been performed by Mr. Krause. Mr. Schippers stated that Respondent replaced the inverter the day after the July 29, 2015 onsite inspection. Mr. Schippers said that Complainant had made no further complaint to Respondent about the inverter since its replacement. Mr. Schippers said that if the inverter had failed that Respondent was willing to replace the inverter. Mr. Schippers’ testimony is found to be credible. Dorothy “Dottie” Watson (hereinafter “Ms. Watson”) testified that she was employed by Respondent. Ms. Watson acknowledged that in 2014, she advised the Complainant that Respondent would not pay any money to Complainant. Ms. Watson stated that the Respondent then reimbursed Complainant for the cost of correcting the couplings to the solar water collector pipes in 2014, in Case No. 2014-408. Ms. Watson denied making any similar statements in 2015.

CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1154(A). 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. 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). Complaint item No. 1, August 10, 2015, as set forth in the written Directive for Case No. 2015-978 addressed work that had been performed by another contractor. Complainant acknowledged that the solar coupling system had now been corrected by an alternative contractor. Complainant acknowledged that he had agreed to send the Respondent an estimate for the repair of the couplings to the solar water collector pipes. Complainant said that he had not sent the estimate to the Respondent because the Respondent was not licensed to perform the type of work at issue. Mr. Schippers credibly testified that Respondent replaced the electric solar inverter the day after the July 29, 2015 onsite inspection. Mr. Schippers said that Complainant had made no further complaint to Respondent about electric solar inverter since its replacement. This Tribunal concludes that the preponderance of the evidence of record is insufficient and fails to support a conclusion that Respondent violated the charged provisions of A.R.S. §§ 32-1154(A)(3), namely, A.A.C. R4-9-108, and A.R.S. 32- 1154(A)(22). RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. . 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 five days from the date of the certification. Done this day, March 7, 2016. /s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(3) includes among the grounds for disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. A.A.C. R4-9-108 provides, in pertinent part, 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.

[2] A.R.S. § 32-1154(A)(22) provides as follows:

Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held. [3] The Solar Store LLC License No. 164742.

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