ALJDEC decisions subject to certification as final
2018A-1015-CHC-ROC · Registrar of Contractors · 2018-08-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Liv Singh Khalsa,
COMPLAINANT,
v.
Maverick General Contractors LLC dba,
New Sun Energies,
License No: 293258
RESPONDENT.
No. 2018A-1015-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 20, 2018 at 8:30 AM.
APPEARANCES: Liv Singh Khalsa (“Complainant”) appeared on his own behalf. Timothy Pennington appeared on behalf of the Registrar of Contractors (“the ROC”). Maverick General Contractors LLC, dba New Sun Energies, License No. 293258 (“Respondent”) failed to appear.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the ROC.
FINDINGS OF FACT
BACKGROUND AND PROCEDURE
On July 11, 2017, Complainant and Respondent entered into a contract agreement whereby Respondent agreed to install solar panels on Complainant’s residential property located at 834 E Cambridge Ave. Phoenix, AZ 85006 for the sum total of $18,000.00. Complainant issued Respondent a personal check on July 11, 2017, for $18,000.00 which was deposited by Respondent that same day.
On March 06, 2018, the ROC received a complaint from Complainant alleging abandonment.
On March 07, 2018, the ROC issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an ROC investigator on April 13, 2018, at 9:00 a.m.
On April 13, 2018, ROC investigator Timothy Pennington (“Investigator Pennington”) conducted a review of the contract executed between the parties. Investigator Pennington also inspected the work that had been done on the project to date and took photographs of the property. When he was finished, Investigator Pennington drafted inspection notes.
On April 13, 2018, Investigator Pennington issued a Directive from the Registrar to Respondent because he substantiated Complainant’s allegation that Respondent abandoned the contracted project and that the work Respondent had done failed to meet minimum workmanship standards. Respondent was put on notice that it had until April 30, 2018, to notify the ROC of its compliance with the corrective order or face discipline pursuant to Ariz. Admin. Code R4-9-108, and Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1154(E).
On May 04, 2018, the ROC issued a Citation and Complaint to Respondent under Ariz. Rev. Stat. § 32-1155(A). Respondent was given until May 21, 2018, to respond with its Answer.
On May 21, 2018, Respondent, through its customer service manager Celeste Diaz, supplied its Answer to the ROC. Per Ms. Diaz, the reason Respondent had not moved forward on Complainant’s project was because Respondent was waiting for the City of Phoenix to review and/or revise the last plans Respondent submitted for review. Per Ms. Diaz, once the City accepted the proposed plans, Complainant’s utility company would have to review the plans and approve them as well. Ms. Diaz estimated that it would take an additional forty-five days to complete the installation of Complainant’s solar panels after both the city and utility company completed their approvals and permitted Respondent to proceed.
On May 23, 2018, the ROC referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on July 20, 2018. Per the Notice of Hearing the issue to be determined is whether the ROC has cause to discipline Respondent’s license based on the following charges:
Charge 1: A violation of A.R.S. § 32-1154(A)(1) (“Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”).
Charge 2: 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).
Charge 3: A violation of A.R.S. § 32-1154(A)(22) (“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.”).
Hearing Evidence
Complainant appeared on his own behalf with Investigator Pennington as a witness, and submitted two exhibits. The ROC’s electronic hearing file was also admitted into the record as its own exhibit. No appearance(s) by or on behalf of Respondent.
Complainant testified that he took out a home equity loan to fund the project. Per Complainant, he was incentivized to complete the project in a timely manner so that he could “lock in” a rate for solar with his electric utility provider.
Complainant credibly testified that Respondent completed little to no work on the project even though Respondent was paid in full to commence it. Per Complainant, Respondent was responsible for obtaining the requisite residential photovoltaic system permit from the City of Phoenix, but that Respondent’s four submissions were rejected by the City for various reasons within their control, and that Respondent never made the City’s suggested corrections to any plan it submitted.
Complainant further testified that he attempted to contact Respondent multiple times but was stonewalled at every attempt. First, Complainant contacted his sales representative who he later learned no longer worked for Respondent. Next, Complainant went to Respondent’s office to find it vacated. Lastly, Complainant sent several emails to a customer service representative but received an automated response which stated the representative was out of the country.
Investigator Pennington testified that Respondent never asked to extend the Directive deadline, nor did Respondent ever comply with the Directive.
Investigator Pennington testified that he contacted the City and was informed that Respondent’s plans had been revised three times, and a fourth revision had been ready for Respondent to pick-up for several weeks.
Investigator Pennington also clarified that he incorrectly wrote “now” on his inspection report and meant to write “no,” indicating that Respondent had not installed the contracted solar panels.
Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s license file as shown on the ROC’s public website on August 06, 2018. License No. 293258 is current and renewed through July 31, 2018. There are three open complaints against the license, one of which is presumably Complainant’s. Three prior complaints have been closed as settled/resolved/withdrawn, and two prior complaints have resulted in discipline against the license. The license was suspended for lack of bond from June 12, 2017, through June 14, 2017, and subjected to a finite suspension on October 17, 2017, and from June 14, 2018, through June 16, 2018.
CONCLUSIONS OF LAW
This matter lies within the ROC’s jurisdiction.
The Notice of Hearing issued by the ROC to Respondent at its address of record was reasonable, and Respondent is deemed to have received it under Ariz. Rev. Stat. §§ 41-1092.4 and 41-1092.05(D).
Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”
Ariz. Admin. Code R4-9-108 holds, in pertinent part:
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.
Ariz. Rev. Stat. § 32-1154(A)(1) holds, in pertinent part, that the holder of a license shall not abandon a contract or refuse to perform after submitting a bid on work without legal excuse for the abandonment or refusal.
Ariz. Rev. Stat. § 32-1154(A)(3) holds that a holder of a license may not violate a rule adopted by the ROC.
Ariz. Rev. Stat. § 32-1154(A)(22) holds, in pertinent part, that a holder of a license may not fail to take appropriate corrective action to comply with this chapter or 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. The ROC has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.
Ariz. Rev. Stat. § 32-1154(E) holds, in pertinent parts, that the ROC may impose a civil penalty not to exceed five hundred dollars on a contractor for each violation. The failure by the licensee to pay any civil penalty imposed results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. It also holds that no future license may be issued to an entity consisting of a person who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.
It is undisputed that the ROC issued its Directive to Respondent on April 13, 2018, and required Respondent’s full compliance by April 30, 2018. It is also undisputed that Respondent failed to comply.
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to timely complete Complainant’s project. This is an affirmative defense that Respondent bears the burden to establish. Because Respondent failed to appear and provide testimony, this burden has not been sustained. The record shows that Respondent failed to adhere to an ROC Directive, and had no affirmative defense(s) for doing so.
Because Complainant established by a preponderance of the evidence that Respondent failed to perform the scope of work included in his signed and paid for contract with Respondent, Complainant has also established cause for the ROC to suspend or revoke Respondent’s contractor’s license under Ariz. Rev. Stat. § 32-1154(A)(22).
Complainant may petition the ROC’s Recovery Fund for financial recompense regarding this matter, as the Tribunal has no jurisdiction to award a refund of the underlying amount contracted between the parties.
RECOMMENDED ORDER
Based on the foregoing findings of fact and conclusions of law,
IT IS RECOMMENDED that that on the effective date of the final order in this matter, Respondent Maverick General Contractors LLC, doing business as New Sun Energies, License No. 293258 shall be suspended for five (5) business days.
It is further recommended that the ROC require Respondent to pay the sum total of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 32-1154(E).
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 ROC’s Order, the ROC 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 Ariz. Rev. Stat. § 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 06, 2018.
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors