ALJDEC decisions subject to certification as final

2022A-01579-CHC-ROC · Registrar of Contractors · 2022-11-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Nancy Finch ,

COMPLAINANT

On Point Solar Power LLC

DBA: ,

License No. ROC 328926,

RESPONDENT

No. 2022A-01579-CHC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 12, 2022, 9:00 A.M.

APPEARANCES: Complainant Nancy Finch appeared on her own behalf; Jacob Davison and James Warner, members and founders, appeared on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. On Point Solar Power LLC (Respondent), is the holder of License Number 328926 issued by the Registrar of Contractors (Registrar).

2. On or about February 24, 2022, Nancy Finch (Complainant) filed a Complaint against Respondent with the Registrar alleging abandonment and poor work by Respondent in connection with the installation of a rooftop solar system (“project”) at Complainant’s residence in Tucson, Arizona. The Complaint reflected the contract amount of $96,000.00.

3. After an inspection performed by the Registrar on March 21, 2022, the Registrar issued a Directive, dated March 29, 2022, requiring Respondent to correct various alleged deficiencies in Respondent’s work by April 14, 2022, as follows:

Complaint Item 1: “My complaint is they have damaged our roof.”

(Complainant’s description of the water damage caused to the ceiling in the entry hall and the master bedroom.)

Investigator’s Observations: Verified. The complainant pointed out and showed the water damaged locations in the entry hall and the master bedroom. The panel strut supports for the equipment located above the entry hall and the master bedroom were observed to be located in areas where water currently ponds.

Complaint Item 2: “They told us we would not pay electric bills after installation of the panels, Instead we have been paying loan and electric bills. We were told it would take 2-4 mo. to complete, it’s not.”

Investigator’s Observations: Verified. The respondent has failed to complete the solar installation and the system has not been energized. The respondent has abandoned the project. The respondent shall complete all work per contract, and ensure the system is energized, operational and code compliant with the local building department municipality and the electric company.

4. After been informed that the Respondent did not perform any corrective work, the Registrar then issued a Citation to Respondent, dated April 22, 2022, for the alleged violation of the following:

a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusing to perform without legal excuse for the abandonment);

b. A.R.S. § 32-1154(A)(2) (departure from or disregard of plans or specifications or any building code standards);

c. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards);’s

d. A.R.S. § 32-1154(A)(8) (failure in a material respect to complete a construction project or operation for the price stated in the contract):

e. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).

5. The Registrar issued a Notice of Hearing, setting a hearing for October 12, 2022, at 9:00 A.M. At the hearing, Complainant Nancy Finch testified on her own behalf and presented the testimony of Mira Finch; Jacob Davison and James Warner, members and founders, testified on behalf of Respondent. Gregory Johndrow (“Investigator”) testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 1 - 17.

6. The Investigator testified on behalf of the Registrar as to his communications with Complainant and Respondent, his inspection of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. He stated he had no interaction with the Respondent and that Respondent did not attend the inspection.

7. Complainant Nancy Finch testified that the project started in April 2021 after she took out a loan to pay for the project, and was told the project would take two months to complete. From the beginning, she noticed her ceiling leaking water in the bedroom after a rain. She stated Respondent came out to attempt to repair the roof but it was not repaired, and that she wanted her contractor to repair the roof and ceiling. She stated she was never given a copy of contract that she had signed on Respondent’s tablet.

8. Mara Finch, daughter of Complainant, testified on behalf of Complainant that they did not get a copy of the contract when requested. She stated the damage to the roof occurred after solar panels were installed and that Respondent was told that they had to use Complainant’s contractor only after Respondent’s contractor failed to show up to the property.

9. Jacob Davison, founder and member of Respondent, testified on behalf of Respondent that they experienced many labor and material delays and constraints on the project. He further testified that the system was installed but was not commissioned and inspected by the utility to make the system operational because Complainant was unwilling to allow them to proceed. He stated that they attempted to repair the roof but Complainant required them to use her contractor. He further stated that he could not get a hold of him, and when did, he was told by the contractor that Complainant told him not to do the work.

10. James Warner, founder and member of Respondent, testified on behalf of Respondent that in March to May 2022 Respondent scheduled a utility interconnection, but Complainant denied them access and then Complainant hired an attorney. He also testified that his notes reflected several attempts to have his contractors visit the site for potential repair of the roof.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence 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 (Rev. 6th ed. 1990).

4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

2. Departure from or disregard of plans or specifications or any building codes of the state or any political subdivision of the state in any material respect that is prejudicial to another without consent of the owner or the owner's duly authorized representative and without the consent of the person entitled to have the particular construction project or operation completed in accordance with such plans and specifications and code.

3. Violation of any rule adopted by the registrar.

...

8. Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.

...

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.

5. As it relates to A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.”

6. A.R.S. § 32-1154(A)(1). Complainant has not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(1) for Respondent’s alleged abandonment or refusal to perform work without a legal excuse. Although Respondent did not complete the work at least in terms of making the system operational, there was no evidence presented that Respondent abandoned the work or refused to perform any work or make the system operational. Respondent testified that Complainant refused to allow Respondent to make the system operational apparently due to the dispute regarding the repair of the roof and ceiling drywall.

7. A.R.S. § 32-1154(A)(2). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(2). The evidence that the system was not operational because of failure to have it commissioned by the local utility is a departure from or disregard of plans or specifications or any building codes in a material respect that is prejudicial to another. While there was some evidence presented that Complainant may have prevented the system from being commissioned, there was no evidence presented to show that Respondent was prevented from having the system commissioned after the Directive was issued.

8. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3) for Respondent’s failure to perform the work in a professional and workmanlike manner. The evidence presented showed the roof leaks damaging the ceiling drywall to be in the vicinity of the installed solar panels. There was no evidence presented to show that the leaks were caused by anything other than the installation of the solar panels.

9. A.R.S. § 32-1154(A)(8). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under of A.R.S. § 32-1154(A)(8) for the failure in a material respect by Respondent to complete a construction project or operation for the price stated in the contract, or in any modification of the contract. There was no dispute that the project was not completed, at least with regard to making the system operational.

10. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22) for the failure on the part of Respondent to undertake corrective action. The evidence was uncontradicted that the Directive items had not been completed and Respondent presented no evidence of a valid justification for its failure to complete the corrective work. As there was some disagreement between the parties as to what contractor to use to repair the damaged roof and ceiling, once the Directive was issued, Respondent had the opportunity to choose its own contractor to complete the work and it evidently chose not to do so. Further, there was no evidence presented of an attempt on the part of Respondent to make the system operational once the Directive was issued and before the Directive deadline expired.

11. Accordingly, Complainant has established that Respondent’s license should be disciplined for a violation of § 32-1154(A)(2), § 32-1154(A)(3), A.R.S. § 32-1154(A)(8), and A.R.S. § 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of this Order, On Point Solar Power, LLC’s, License Number 328926 is suspended for two days

IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.

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 Registrar’s final order, the Registrar 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 A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of the outstanding prior civil penalty.

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, November 1, 2022.

/s/ Roger Geddes_______

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

Nancy Finch

3030 W Neosha St

Tucson, AZ 85745

[email redacted]

On Point Solar Power LLC

4409 E Baseline Rd Ste 130

Phoenix, AZ 85042

[email redacted]

By-54864001

001

-137160-45720000 Miranda Alvarez

Legal Secretary