ALJDEC decisions subject to certification as final

2022A-06499-CHC-ROC · Registrar of Contractors · 2023-02-06

-54864001

001

-137160-45720000 IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Wayne Ilger

COMPLAINANT,

Better Earth Electric AZ, LLC

License No. ROC 336447,

RESPONDENT.

No. 2022A-06499-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 17, 2023

APPEARANCES: Complainant Wayne Ilger (Mr. Ilger) appeared on behalf of himself. No one appeared on behalf of Respondent Better Earth Electric AZ, LLC (Better Earth).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

1. On or about September 10, 2021, Better Earth agreed to install solar panels on Mr. Ilger’s home for the amount of $19,370.40. Mr. Ilger paid Better Earth $17,533.36 for the installation.

2. On or about December 17, 2021, Better Earth started work on the project.

3. On or about June 17, 2022, Better Earth stopped work.

4. On or about August 5, 2022, the Arizona Registrar of Contractors (Registrar) received a complaint from Mr. Ilger alleging abandonment and poor workmanship on the part of Better Earth.

5. On or about September 7, 2022, Registrar Investigator John Smith conducted a job-site inspection.

6. On September 8, 2022, the Registrar issued a Directive to Better Earth that provided, in relevant part, as follows:

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 September 29, 2022.

RESTRICTIONS

• You may not perform or hire other contractors to perform work that is outside the scope of your license.

• If your license is currently suspended for administrative reasons, or is inactive, expired, or cancelled, you may not perform any corrective work nor contract in any manner, which includes hiring other contractors to perform work, until the suspension of your license(s) has been lifted or your license(s) has been reactivated.

DIRECTIVE REQUIREMENTS

You are directed to complete work per contract and to remedy the following violations by the appropriate means:

Complaint Item 1: “...The installers removed a LOT of conduit, and shut down my existing solar panels in FEB2022. Solar meter to be installed has been on the ground outside of my house since then, and the port to receive it has been open to the elements...a derate is required...the signage was not correct...”

Investigator’s Observations:

Verified. The project is not complete:

The contractor representative signature on the contract is dated 9/10/2021

As stated on the submitted complaint form, work started 12/17/2021

As stated on the submitted complaint form, work stopped 6/17/2022

As of today’s jobsite inspection, 9/7/2022, the project is not complete.

Contract language includes “Guaranteed Completion Date - Except as otherwise provided herein, Better Earth Electric shall achieve Completed Installation within sixty (60) days from the date the Company commences to install the System on the Property (the "Guaranteed Completion Date").”

The respondent confirmed installing the system/equipment in December of 2021.

December 2021, plus 60 days as specified in the “Guaranteed Completion Date”, equals February 2022.

As of today’s jobsite inspection, 9/7/2022, this project is approximately 7 months past the “Guaranteed Completion Date” specified in the contract.

Work remaining to be completed and/or corrected includes, but is not limited to:

There is at least one broken tile on the roof due to installation of the new panels

There are additional panel mounting clips on the roof, not presently installed

Two circuit breakers in the man panel are labeled as being for the solar equipment connection to the panel – one of the two breakers is missing the connecting bracket

De-rating the panel

Correct labeling of the panel and all related components

Satisfying all requirements of the local building official

Satisfying all requirements of the local utility company

Turning on the system

Recent stucco patch work on the north side of the garage is not a reasonably close match to the adjoining stucco/paint

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

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.

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7. Better Earth failed to comply with the Directive by the due date.

8. On October 26, 2022, Investigator Smith referred the complaint to the legal department for the issuance of a Citation.

9. On November 4, 2022, the Registrar issued a Citation against Better Earth’s license to the parties at their physical and e-mail addresses of record (addresses of record). Through the Citation, the Registrar alleged that Better Earth violated Arizona Revised Statutes (A.R.S.) section 32-1154(A)(3), namely Arizona Administrative Code (A.A.C.) R4-9-108(A); A.R.S section 32-1154(A)(2)(a) and (A)(22).

10. Better Earth received the Citation. See the Registrar’s administrative record, pgs. 75-80.

11. On or about November 19, 2022, Better Earth filed a timely answer to the Citation. See the Registrar’s administrative record, pgs. 75-80.

12. On December 8, 2022, the Registrar issued a Notice of Hearing to the parties’ addresses of record, setting the matter for hearing on January 17, 2023 at 9:00 a.m. See the Registrar’s administrative record, pgs. 1-6.

13. A hearing was held on January 17, 2023.

14. Mr. Ilger testified on behalf of himself. Investigator Smith testified consistently with his job-site inspection notes, the issuance of the Directive, and his recommendation of the complaint to the Registrar’s legal department for the issuance of a Citation.

15. Investigator Smith stated that as of the date of the hearing, the project was 11 months past the guaranteed date of completion stated in the contract. Investigator Smith also clarified that the local power company does not derate electric panels. After scheduling, the local power company will temporarily turn off power to the property and the contractor on-site would replace the main circuit breaker with the appropriate sized circuit breaker. After the replacement, the work would inspected and approved and the local power company would turn the power back on.

16. Mr. Ilger explained that Better Earth performed poor work in connection with the solar panel installation project.

17. I find the testimony of Mr. Ilger and Investigator Smith to be credible.

18. No one appeared on behalf of Respondent at the hearing on January 17, 2023. No one filed a request to appear telephonically on behalf of Respondent. Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Respondent through an authorized member, officer, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

19. Administrative notice is taken of the Registrar’s public website. According to the information available on the website on February 6, 2023, Better Earth’s license was first issued on January 26, 2022 and is active. Such prior License record also shows that there is only one open complaint against Better Earth and that the Registrar has never disciplined Better Earth’s license. Better Earth’s lack of disciplinary history is considered a mitigating factor in the imposition of discipline and penalties.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

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 a preponderance of the evidence. See A.A.C. R2-19-119.

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

4. A preponderance of the evidence is “such proof as convinces the trier of

fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

5. The preponderance of the evidence shows that Respondent failed to perform the work in compliance with all applicable building codes, which is a violation of A.R.S. section 32-1154(A)(2)(a).

6. The preponderance of the evidence shows that the issues found

by Investigator Thomas demonstrate that Respondent failed to perform work in a professional and workmanlike manner, which is a violation of A.R.S. section 32-1154(A)(3), namely A.A.C. R4-9-108(A).

7. The preponderance of the evidence shows that Respondent failed to

correct the items listed in the Registrar’s Directive without valid justification, which is a violation of A.R.S. section 32-1154(A)(22).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend ROC License: No. 336447 held by Better Earth Electric AZ, LLC for one day.

It is further recommended that the Registrar require Respondent to pay the sum of $250.00 as a civil penalty pursuant to Ariz. Rev. Stat. section 32-1154(E).

It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 32-1101(A)(7), 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 forty days from the date of that certification.

Done this day, February 6, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Wayne Ilger

121194 N. Kylene Canyon Drive

Oro Valley, AZ 85755

[email redacted]

Better Earth Electric AZ LLC

4116 E Superior Ave. Ste. 5E

Phoenix, AZ 85040

[email redacted]

John Smith

[email redacted]

Jeffrey Fleetham

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]