ALJDEC decisions subject to certification as final

2021A-04767-CHC-ROC · Registrar of Contractors · 2022-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Christopher Green,

COMPLAINANT

Better Earth Electric Inc.

License No. ROC 331117,

RESPONDENT

No. 2021A-04767-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 1, 2022

APPEARANCES: Christopher Green on his own behalf; Misha Glazomitsky for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On February 23, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on April 1, 2022 at the Office of Administrative Hearing.

Through its Notice of Hearing, ROC alleges that Respondent Better Earth Electric Inc. may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent holds license No. 331117 issued by ROC. Misha Glazomitsky appeared and testified for Respondent.

Complainant Christopher Green appeared and testified on his own behalf and also presented the testimony of Rick Weiler.

ROC investigator Steven Klein also testified.

On June 7, 2021, Complainant and Respondent entered a contract in which Respondent was to install a solar electric array on Complainant’s house.

Prior to entering the contract, Complainant hired ProWest LLC that installed a new roof using CertainTeed shingles. Mr. Green was supposed to receive an enhanced warranty.

Mr. Green testified that he hired ProWest based on a recommendation Michael Thooft who Mr. Green thought worked for Respondent. Respondent presented evidence to the effect that Mr. Thooft was not its direct employee.

After Respondent completed its work, Complainant had ProWest (or its contract employee) inspect the roof. ProWest was of the opinion that Respondent had damaged the shingles with the cause being working while the temperature was too high.

ProWest and CertainTeed informed Complainant they would not honor the enhanced warranty unless he paid ProWest $6800 to make repairs. Complainant then requested Respondent to provide credit for that amount.

Respondent agrees that there were some shingles that required repair, but does not agree that $6800 is a fair price for the work necessary. Respondent had available a licensed roofer that would do the work for an estimated $500. Consequently, Respondent did not agree to Mr. Green’s request for a $6800 credit.

At the time Complainant requested the $6800 credit, Complainant had paid Respondent only $1000 and still owed $36,015.20 that was due before the system was energized. Although it was not obligated to do so, Respondent energized Mr. Green’s system because he had given Respondent the impression that the parties could get the matter resolved.

The parties engaged in extensive negotiations and Respondent spent a lot of time trying to resolve the problem to Mr. Green’s satisfaction.

Respondent has made three offers to Mr. Green: (1) to provide him with a warranty equivalent to that which ProWest was to provide, which would address Mr. Green’s initial position that it was the warranty that he was concerned about. Mr. Green agreed to that proposal, but then changed his mind. (2) Respondent would pay a licensed roofer to make the repairs using the same shingles that ProWest installed. And, (3) Respondent would provide the enhanced warranty and pay to have the roof repaired.

Mr. Green rejected all three options and is insisting that either ProWest or Lyons Roofing, which are the only two Arizona licensed roofers holding CertainTeed’s Select ShingleMaster certification, perform the work. At the hearing, Mr. Green indicated that he would accept another roofer provided that roofer had a similar certification.

Mr. Weiler explained that the Select ShingleMaster certification is based on the volume of sales that a roofer has and is not based on any superior skills, although the roofer must also agree to follow CertainTeed’s installation instructions.

Respondent called over 25 roofers licensed in the state to help resolve the matter. Most were not interested in the job because it was so small. Many did not respond to Respondent’s inquiries because they are all too busy.

When Mr. Green was asked why he allowed Respondent to spend so much time and effort trying to locate a roofer if he was only willing to use ProWest or Lyons, he responded that he was humoring Mr. Glazomitsky. When asked a similar question, Mr. Green responded to the effect that he understood ROC would not look favorably on him if he limited Respondent’s access to the project and that he thought that allowing Respondent to engage in the effort might be helpful to Respondent in the hearing.

Mr. Green also indicated that at one time he had been willing to allow Respondent’s roofer to complete the work but he would not have been willing to withdraw his complaint.

On or about September 24, 2021, Complainant filed with ROC a complaint against Respondent alleging that Respondent had damaged up to half the shingles.

ROC investigator Mr. Klein conducted a jobsite inspection on November 14, 2021. Mr. Klein’s opinion is that there were some scarred or marred shingles in the area around the solar panels that required replacement.

The roofer who agreed to do the work for $500 agreed with Mr. Klein, in that he found that the damage was minor.

On November 15, 2021, ROC issued to Respondent a Directive through which it ordered Respondent to remedy by appropriate means the marred shingles and to inform Mr. Klein that it had done so by 5:00 p.m. December 6, 2021.

ROC issued to Respondent a Citation dated January 20, 2022, through which ROC alleges that Respondent may have violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22).

Respondent has installed tens of thousands solar arrays. Based on this experience, Mr. Glazomitsky testified to the effect that Respondent believes that ProWest is being unreasonable and is trying to increase its sales by charging so much for a minor repair. He surmised that Respondent had likely spent more time and effort than $6800 might warrant, but it was in essence a matter of principle.

Mr. Green’s complaint shows that representatives from ProWest were on his roof more than once after Respondent installed the panels and before he filed his complaint. Mr. Glazomitsky testified as to his opinion that photographs of the roof taken at the time of Respondent’s work show fewer damaged shingles than were present during ROC’s inspection.

Mr. Weiler testified as to his opinion that the number of damaged shingles was greater than Respondent’s estimate. But Mr. Weiler is not licensed, but rather is the sales person who sold Complainant the roof and he will earn a commission if ProWest does the repair work. Mr. Weiler was not shown to be reliable as compared to Mr. Klein who is a neutral arbiter and who as a ROC investigator is presumably is familiar with ROC’s workmanship standards and requirements.

About a week before the hearing, Mr. Green made a payment of $20,000 to Respondent and still owed Respondent $16,015.20 as of the hearing date.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

“At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

There is no substantial evidence showing that Respondent is unscrupulous, unqualified, or financially irresponsible.

The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118.

Ariz. Rev. Stat. section 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

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3. Violation of any rule adopted by the registrar.

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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. 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.

Ariz. Admin. Code section R49108(A) provides that “A contractor shall perform all work in a professional and workmanlike manner.”

Respondent concedes that it damaged some shingles while installing its solar panels. Consequently, the preponderance of the evidence shows that Respondent’s work was in violation of Ariz. Admin. Code section R4-9-108(A), which is also a violation of Ariz. Rev. Stat. section 32-1154(A)(3).

Although Respondent did not comply with ROC’s Directive in the time ROC ordered, Respondent’s failure to do so is justified by Mr. Green’s unwillingness to accept reasonable proposals to complete the work and his unreasonable position that he would allow only ProWest or Lyons to do the work. Consequently, the preponderance of the evidence shows that Respondent did not violate Ariz. Rev. Stat. section 32-1154(A)(22).

Ariz. Rev. Stat. subsection 32-1154(B)(3) provides that ROC “May temporarily suspend ... or permanently revoke any or all licenses issued under this chapter if the holder of the license ... commits any of the acts or omissions set forth in” subsection 32-1154(A).

In this case, no discipline is appropriate because: Mr. Klein provided credible testimony showing that there were far fewer shingles damaged or marred than Mr. Green alleges; Respondent provided credible evidence that the damaged shingles can be repaired (or replaced) for $500; Respondent went to great lengths to accommodate Mr. Green, including offering to have the repairs made and to provide a warranty equivalent to that which ProWest was to have provided; and Respondent energized the system without receiving the $36,015.20 then due and Complainant still owed Respondent $16,015.20 as of the hearing date.

In addition, Mr. Green was aware of ROC’s policy regarding repairs and unreasonably restricting access, yet he refused to accept repairs by any roofer other than ProWest or Lyons. His position that these roofers are to be preferred because they hold the Select ShingleMaster certification is undercut by his own witness Mr. Weiler who explained that this certification is based on a sales volume standard, not superior skills. Although Mr. Weiler testified that the roofer must follow the manufacturer’s specifications, this is something that all roofers must do so. See Ariz. Rev. Stat. § 32-1154(A)(2).

Consequently, ROC should dismiss this matter.

RECOMMENDED ORDER

IT IS ORDERED that the case number 2121-04767 is dismissed.

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.

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-137160-45720000Done this day, April 14, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

By Miranda Alvarez

Legal Secretary

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