ALJDEC decisions subject to certification as final

2022A-01579-RFA-LS-ROC · Registrar of Contractors · 2023-06-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Nancy Finch,

COMPLAINANT

On Point Solar Power LLC

License No. ROC 328926,

RESPONDENT

No. 2022A-01579-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 2, 2023

APPEARANCES: Complainant Nancy Finch appeared via Google Meet on her own behalf. Jacob Davison appeared via Google Meet on behalf of On Point Solar Power LLC. Arizona Assistant Attorney General, Seth Hargraves appeared via Google Meet representing the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 328926 to Respondent.

On or about February 24, 2022, the Registrar received a Complaint against Respondent from Complainant alleging, among other things, that Respondent failed to complete installation of a solar power system at Complainant’s residence.

On April 22, 2022, as a result of the complaint, the Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108; A.R.S. § 32-1154(A)(8); and A.R.S. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In his November 1, 2022 Decision, Administrative Law Judge Roger Geddes considered the parties’ arguments and concluded, among other things, Respondent violated A.R.S. § 32-1154(A)(2)(a); A.R.S. § 32-1154(A)(3); A.R.S. § 32-1154(A)(8); and A.R.S. § 32-1154(A)(22) because the Respondent’s work failed to have it fully commissioned by the local utility, thus failing to complete the contract for the contracted price, Respondent’s work fell below the Registrar’s standards and that Respondent failed to take corrective action.

On November 22, 2022, the Registrar issued a Final Administrative Decision and Order finding violations and revoked Respondent’s license and imposed a $250.00 civil penalty.

On or about January 2, 2023, Complainant then filed a claim with the Residential Contractors’ Recovery Fund (Fund) to recover the cost of the solar power system. As part of the claim process, Complainant submitted bids from many different contractors that Complainant had received to correct the project.

On or about March 27, 2023, the Registrar issued a Notice of Claim for Administrative Payout, finding that Complainant’s was entitled to a payout of $9,573.75 from the Recovery Fund.

Respondent requested a hearing, believing the payout was too high. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

Hearing was held on June 2, 2023.

Hearing Evidence

The Directive from the Registrar specified that:

After investigation, the Registrar determined that you failed to meet the requirements of A.R.S. § 32-1154(A), and now issues this Directive requiring you to take appropriate corrective action. Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32-1154(E) of up to $500.00. You must notify the Registrar’s assigned Investigator of your compliance with this Directive prior to 5:00 p.m. on April 14, 2022.

. . .

You are hereby directed to remedy the following violations by the appropriate means:

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.

Reference Pictures: 8-12

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

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.

Governing Rule: 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.

A.R.S. § 32-1154(A)(2)(a): Departure from or disregard of: (a) Plans or specifications...

A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9- 108(a) A contractor shall perform work in a professional and workmanlike manner.

A.R.S. § 32-1154(A)(8): Failure in a material respect by the licensee to complete a construction project....

Tedi Quezada, Claims Reviewer for the Fund, testified that she reviewed the Directive from the Registrar that had been issued, Judge Geddes’ Decision regarding the underlying complaint, and bids submitted by Complainant in calculating Complainant’s actual damages.

Ms. Quezada testified that there were no perfect bids to cover all of the damages which is why the bids from T & T Cleaning and Restoration; Acuity LLC DBA: Mr. Electric of Tucson; West Coast Roofing LLC; and Elevation Solar LLC, were all used to determine the total compensable bid amount of $105,573.75.

Ms. Quezada testified further that Complainant was able to have the loan cancelled and any monies refunded to her, which then made her payment on the contract $0.00. Ms. Quezada also testified that Respondent’s bond company refused to make any payout.

Ms. Quezada testified that while the bid from Elevation Solar LLC, was for a completely new system with panels, it was still appropriate to use that bid because an new company would not want to take on the risk of using Respondent’s previously installed panels as that new company could be responsible for any subsequent damages.

Ms. Quezada testified that based upon the calculations, Complainant would be awarded $9,573.75.

Mara Finch testified on behalf of Complainant. She believed that the award was too low and that Respondent had “frauded us”.

Josh Davison testified on behalf of Respondent. He testified in general that is understood the bids used but for the Elevation Solar, LLC bid.

Mr. Davison testified that the system was 95% completed so while he understood that a new contractor would be responsible going forward for Respondent’s previously installed work, Respondent should not have to have the full installation price counted against it. Mr. Davison also acknowledged it would take the right contractor to take on that responsibility and still be able to make a profit and take the risk.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132.01(B)(1) provides that “[a]n award from the residential contractors’ recovery fund may not exceed the actual damages suffered by the claimant as a direct result of a contractor’s violation. Actual damages: 1. May not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines.”

Respondent bears the burden of proof to establish that the proposed payout from the Fund is incorrect by a preponderance of the evidence.

“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.”

While Respondent presented an understandable and reasonable argument about why the bid from Elevation Solar LLC, may have been too high, it offered no evidence to counter the amount quoted by Elevation Solar LLC, as to what it believed the proper cost should have been.

After review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainant’s actual damages. Accordingly, Complainant is entitled to a payout from the Fund in the amount of $9,573.75.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive a payout from the Residential Contractors’ Recovery Fund in the amount of $9,573.75.

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.

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 forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, June 19, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

On Point Solar Power LLC

[email redacted]

Nancy Finch

[email redacted]

Seth T. Hargraves

[email redacted]

By: OAH Staff