ALJDEC decisions subject to certification as final

2019A-04871-RFA-LS-ROC · Registrar of Contractors · 2021-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Alejandro Lara Pichardo,

COMPLAINANT,

v.

Sundrop Solar LLC

License No. ROC 293661,

RESPONDENT.

No. 2019A-04871-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 19, 2021 and October 26, 2021.

APPEARANCES: Complainant Alejandro Lara Pichardo appeared on behalf of himself. No one appeared on behalf of Respondent Sundrop Solar, LLC. Assistant Attorney General Sarah A. Asta appeared on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

On or about December 17, 2017, Complainant Alejandro Lara Pichardo and

Respondent Sundrop Solar, LLC (Sundrop) entered into a solar panel installation contract for the amount of $25,000. See Exhibit 1.

Pichardo obtained financing in the amount of $25,000 to pay for the

installation. See Exhibits 16.

3. On December 17, 2017, Sundrop installed the solar system at Pichardo’s

residence.

4. Pichardo paid the loan in full by March 22, 2018. See Exhibit 17.

5. On or about September 25, 2019, the Arizona Registrar of Contractors (the Registrar) received a complainant from Pichardo alleging poor work and abandonment on the part of Sundrop. See Exhibit 1.

6. On November 4, 2019, Investigator Wes Ellington conducted a job-site

inspection. See Exhibit 3.

7. On January 26, 2019, the Registrar issued a Directive to Sundrop

wherein the Registrar directed Sundrop to correct the solar system by appropriate means, no later than 5:00 p.m. on December 13, 2019. See Exhibit 4.

8. On December 17, 2019, Investigator Ellington recommended that the

Registrar’s legal department issue a Citation against Sundrop for violations of Ariz. Rev. Stat. § 32-1154(A)(3) and (22); A.A.C. R4-9-108(a). See Exhibit 5.

9. On December 18, 2019, the Registrar issued a Citation to Sundrop. Through the Citation, the Registrar alleged that Sundrop had violated Ariz. Rev. Stat. § 32-1154 (A)(3) and (22); A.A.C. R4-9-108(a). See Exhibit 6.

10. On January 13, 2020, the Registrar issued a Final Administrative Decision and Order (the Default). The Registrar found that Sundrop violated Ariz. Rev. Stat. § 32-1154 (A)(3) and (22); A.A.C. R4-9-108(a). The Registrar revoked Sundrop’s license.

11. On or about July 12, 2020, Pichardo filed a claim for a payout from the

Registrar’s Recovery Fund (the Fund). Picardo requested $15,700 to repair Sundrop’s deficient work. See Exhibit 8.

12. Pichardo reported on the claim that he paid Sundrop a total of $25,000.

Pichardo reported that he had spent $200 on repairs for the solar system. Because Pichardo did not provide proof of the repair costs, the $200 was not considered in the calculation of the payout from the Fund.

13. Pichardo submitted a bid from Erus Energy with his claim. The Erus Energy bid included offers to rearrange 20 existing panels to accommodate 13 new panels for a total of 33, and to upgrade to a $10,000 solar edge inverter. See Exhibit 20. The bid included an offer to upgrade the electrical service panel to be a 225A plus rating.

14. Rolling contacted Erus Energy regarding its estimate. Erus Energy notified Rolling that it had no record of entering into a contract with Pichardo.

15. Pichardo submitted a repair contract from Powur PBC to the Registrar that

included the installation of new solar panels. See Exhibit 18. Rolling contacted Powur PBC’s sales representative by e-mail regarding its bid. See Exhibit 19. Powur PBC notified Rolling that while Powur PBC offered to install a new solar system, it had not offered to repair the solar system. See id.

16. On December 28, 2020, the Registrar requested verification from Pichardo

related to the claim. The request provided, in relevant part, as follows:

Documentation from RLI Insurance Company regarding the final disposition of the claim against Sundrop’s bond

Proof of repair costs

Itemized bid from Powur PBC

Proof of payments to Sundrop showing visible payor information

17. Pichardo submitted a bid to the Registrar from Green Muscle for the installation of a SolarEdge SE6000 inverter for $2,000.

18. In June of 2021, Joe Shikany, Assistant Chief of investigations, reviewed the claim. See Exhibit 22. Mr. Shikany submitted his opinion to Investigator Smith by e-mail. Investigator Smith noted that Sundrop’s contract provided, “...seller does not make any claims nor guarantee any savings to buyer.” Mr. Shikany reviewed the bids submitted by Pichardo and concluded that with the exception of a proposal to replace an inverter, the bids did not include offers to repair the solar system, but to upgrade the solar system. See id. Regarding the Erus Enegy proposal, Mr. Shikany noted in an e-mail to Investigator John Smith, “The proposal from Erus Energy does not mention replacing any defective components or state why the system is not currently functional.” Mr. Shikany observed that the Directive did not require the system to be upgraded but to made functional.

19. Rolling calculated Pichardo’s actual damages based on the bid from Green Muscle. Rolling used the bid from Green Muscle because it provided a direct value to replace the inverter. Rolling concluded that the installation of the inverter fell under the Directive because Investigator Smith informed her that the panels were not malfunctioning, only the energy being produced. According to the Directive, a repair of the current system was needed.

20. On August 3, 2021, the Registrar notified Pichardo and Sonia Pichardo that they would be awarded $2,000 from the Fund.

21. Pichardo timely requested a hearing to contest the amount of the award.

22. The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

23. A hearing was held on October 19, 2021 and October 26, 2021.

24. At hearing, the Registrar presented the testimony of Katelyn Rolling, Legal

Assistant II at the Registrar. Pichardo testified on behalf of himself and presented the testimony of Richard Sanchez and Ezequiel Alvarez.

25. Rolling explained that she discounted the bids from Erus Energy and Powur PBC because the bids included upgrades that exceeded the scope of the Directive. In addition, the repair costs were not itemized. Rolling requested a bid for the inverter alone from Powur PBC. However, Powur PBC informed Rolling that such a bid could not be provided. Rolling used the bid from Green Muscle to calculate Pichardo’s actual damages because it represented the cost to repair the inverter.

26. Pichardo stated that Sundrop promised that he would receive a “35% to 45%” savings by installing its solar panel system. Pichardo asserted that he stopped receiving a savings on the system due to a malfunction. Pichardo explained that he never asked the Registrar to replace the solar panels. Pichardo explained that he wanted the inverter replaced. However, Pichardo stated that he was unable to find a contractor who was willing to work on system that was installed by another contractor.

27. Richard Sanchez testified to the effect that the inverter installed by Sundrop did not function properly. Sanchez stated award proposed by the Registrar is insufficient to cover the cost of the required replacement inverter set.

28. Alejandro Alvarez is the salesperson who sold Pichardo the solar panel installed by Sundrop. Alvarez stated that the award amount proposed by the Registrar is insufficient to cover labor, expenses, and Pichardo’s loss. Alvarez stated that he has worked in the mental health field and the proposed award amount will not cover the mental trauma caused by Sundrop’s deficient work.

CONCLUSIONS OF LAW

Complainant bears the burden of proof and the standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).

Ariz. Rev. Stat. § 32-1132(A) provides, in relevant part, as follows:

An award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.

The undisputed evidence presented at hearing shows that Pichardo did not file a claim with the Registrar to replace the solar panels, but to repair the inverter. The preponderance of the evidence shows that Pichardo’s actual damages were limited to the cost to repair the inverter, $2,000. Complainant has not established that the Registrar’s determination was improper.

Consequently, the Registrar’s determination to award Pichardo and Sonia Pichardo $2,000 from the Fund should be upheld.

ORDER

IT IS ORDERED that Alejandro Lara Pichardo’s appeal is denied.

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 is forty days after the date of that certification.

Done this day, October 26, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors