ALJDEC decisions subject to certification as final
2022A-02800-CHC-ROC · Registrar of Contractors · 2022-11-10
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Patricia Thornton,
COMPLAINANT,
v.
Vision Solar LLC
ROC License No. 334176,
RESPONDENT.
No. 2022A-02800-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 02, 2022 at 9:00 AM.
APPEARANCES: Lindsay Turner appeared on behalf of Patricia Thornton (“Complainant”) with John Turner as a witness. Steve Klein appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). No appearance(s) by or on behalf of Vision Solar LLC (“Respondent”).
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.
FINDINGS OF FACT
Background and Procedure
Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website. On July 26, 2021, the Registrar issued License No. 334176 Specialty Dual CR-11 Electrical contracting license to Respondent. The license is renewed through July 31, 2023. Jason Douglas Adcock is listed as the Qualifying Party on this license. Michael Eden and Jonathan Seibert are listed as the Manager/Member/Officer on the license as well. Respondent’s address of record for the license is 511 NJ-168 Blackwood NJ, 08012. Respondent has an active $6,750.00 surety bond on the license issued by Platte River Insurance Company, effective June 29, 2021. The license has been disciplined by the Registrar on 2 prior occasions, and the license has settled or otherwise resolved 5 other disputes. There are currently 12 open complaints against the license pending with the Registrar, including the one related to this matter.
On or about April 07, 2022, the Registrar received a narrative complaint from Complainant against Respondent’s License No. 334176 alleging an a grievance regarding “other” involving a solar installation project. The Registrar designated it Complaint No. 2022-02800 and assigned to Steve Klein (“Investigator Klein”) for investigation.
On April 11 2022, Investigator Klein issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on June 10, 2022, at 10:00 a.m.
On June 29, 2022, Investigator Klein inspected the work that had been performed on the project to date, but did not review the contract executed between the parties. He did take 4 photographs of the project site. When he was finished, Investigator Klein drafted his Inspection Notes. Ultimately, Investigator Klein determined that Complainant’s narrative constituted a single complaint item, which he substantiated as failing to meet the Registrar’s minimum workmanship standards.
On June 10, 2022, Investigator Klein issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated Complainant’s workmanship allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on July 11, 2022, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3), 32-1154(A)(22), and 32-1154(E).
On July 12, 2022, Investigator Klein issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on July 29, 2022, at 2:30 p.m.
Investigator Klein did not perform a compliance jobsite inspection as he received written confirmation from Complainant that no Respondent had not performed corrective work on the project.
On August 02, 2022, Investigator Klein forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.
On August 25, 2022, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until September 09, 2022, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.
On September 11, 2022, the Registrar received Respondent’s untimely Answer. In pertinent parts, Respondent noted the following:
Please be advised that the solar system at the Thornton residence was granted Permission to Operate June 22, 2022 and is fully operational. Reimbursement and sign on bonus due to Ms. Thornton in the amount of $1,901.26 will be sent out this week.
(All errors in original.)
On September 12, 2022, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on November 02, 2022. Per the September 30, 2022, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:
Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)
Charge 2: A.R.S. § 32-1154(A)(22)
Hearing Evidence
Lindsay Turner, John Turner, and Investigator Klein testified on behalf of Complainant. The Registrar’s agency file, including the Notice of Hearing, was admitted into the record as its own exhibit. The substantive evidence of record is as follows:
Complainant owns residential property located at 2929 E. Oraibi Dr. Phoenix, AZ 85050.
On or about August 30, 2022, Complainant and Respondent entered into a $47,250.00 contract to install solar panels and related equipment on Complainant’s residence.
Complainant financed the contract in full.
Post installation, Respondent was supposed to obtain authorization from the local public utility to bypass Complainant’s city services in order to have the solar panels be the residence’s main source of electricity. No reason was offered for the delay.
At the time of the jobsite inspection, Respondent had not obtained a permit from the local building authority. A permit was obtained by the time the Directive was issued.
Between June 10, 2022, and July 11, 2022, although the project site remained open and available to Respondent during the entirety of this period, Respondent made no attempts to perform corrective work on the project.
Complainant has not been able to use the solar system Respondent installed, and as of the date of the hearing the unit remains out of working order.
CONCLUSIONS OF LAW
The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.
The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.
The Registrar may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.
The Notice of Hearing the Registrar mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter. Because the Registrar mailed all correspondence to Respondent in the same manner and failed to receive any mail returned as undeliverable, Respondent is deemed to have received all correspondence regarding this matter from the Registrar as well.
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. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”
Ariz. Admin. Code R4-9-108(a) requires that “[a]ll work shall be performed in a professional and workmanlike manner.”
Ariz. Rev. Stat. § 32-1154(A)(22) provides, 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 Registrar 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) provides, in pertinent parts, that the Registrar may “[i]mpose 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 provides that “[n]o 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.”
The material facts in this matter clear.
It is clear from the record that the parties had a solar panel installation contract, for which Complainant paid the price in full. It is also clear that Investigator Klein substantiated the underlying complaint item as failing to meet the Registrar’s minimum workmanship standards, and that Respondent failed to perform corrective work in compliance with the Registrar’s Directive in violation of Ariz. Rev. Stat. §§ 32-1154(A)(3) and (A)(22).
Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and complete Complainant’s project per contract. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent has failed to sustain its burden. The Tribunal is not at liberty to make presumptions in favor of Respondent or accept facts in mitigation on behalf of Respondent that are not supported by the evidence. Respondent’s absence from this administrative proceeding is, however, a factor in aggravation. The evidentiary record in this matter reflects that Respondent failed to complete the underlying project at issue and never returned Complainant’s payment; in whole or in part, and had no affirmative defense(s) for doing so.
Thusly, because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22) by a preponderance of the evidence, Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Vision Solar LLC, ROC License No. 334176, be suspended for ten (10) days based on his violations of Ariz. Rev. Stat. §§ 32-1154(A)(3) and 32-1154(A)(22).
IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum total of $500.00 (five hundred) in certified funds as a civil penalty in this matter.
IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) days following the effective date of the Registrar’s Final Order, the Registrar shall 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, November 14, 2022.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
c/o Legal Department
Registrar of Contractors
[email redacted]
Vision Solar LLC, Respondent
ATTN: Jason Douglas Adcock
c/o Ari D. Linden, Esq.
511 NJ-168
Blackwood, NJ 08012
[email redacted]
Patricia Thornton, Complainant
2929 E. Oraibi Dr.
Phoenix, AZ 85050
[email redacted]
By Miranda Alvarez
Legal Secretary