ALJDEC - Licensing
2022A-08025-CHC-ROC · Registrar of Contractors · 2023-03-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Robert Parkens,
COMPLAINANT
v.
Erus Builders LLC
DBA: Erus Energy
License No. ROC 305508,
RESPONDENT
No. 2022A-08025-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 4, 2023 with the record held open until May 5, 2023.
APPEARANCES: Complainant Robert Parkens appeared via Google Meet on her own behalf. Registrar of Contractors Investigator Steve Klein appeared via Google Meet.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Erus Builders LLC (Respondent) is the holder of License No. 305508 issued by the Arizona Registrar of Contractors (Registrar).
On or about September 14, 2022, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to a solar panel installation project at Complainant’s residence.
The Registrar assigned the complaint to Investigator Steve Klein. The jobsite inspection was performed on November 9, 2022.
Investigator Klein then issued a written directive on or about November 9, 2022, to Respondent that provided 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 December 12, 2022.
. . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders, verbal agreements, local building codes and manufacturer’s installation instructions.
(All errors contained in the original)
On December 15, 2023, Investigator Klein completed notes regarding a Directive Compliance Inspection. Investigator Klein found the following:
No Compliance inspection was performed. I received an email from the Complainant stating the contractor did not address the directive.
Compliance Findings:
Complaint #1 Solar system has never been connected to APS
Inspector’s Observation: The contract date was 10-21-22 as of 12-15-22 there is still no meter on the panel. The contractor stated there should be a meter installed within the 30 days from 11-9-22.
• Respondent shall complete project per original contract agreement, plans, specifications, properly executed change orders, verbal agreements, local building codes and manufacturer’s installation instructions.
On December 16, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1), and A.R.S. § 32-1154(A)(22).
On or about December 28, 2022, Respondent timely filed Answer with the Registrar, which indicated the following in pertinent part:
...
The customer is completely right in the timeline it has taken us to finish this job. We have been through numerous updates with SRP and the local municipality for this. Combined with material delays the project has taken much longer than we like and the customer deserves. The good news on this is the project is completely finished and awaiting APS PTO- On the APS website APS got the final inspection request from us on 11/28- I have copied the response we received from APS below. We should have notice to turn on system on any day at this point. They typically are booked at the end of year but the customer has his spot.
On or about January 30, 2023, a Notice of Hearing was issued setting a hearing on March 6, 2023 at the Office of Administrative Hearings, an independent state agency.
After a continuance, the hearing was held on April 4, 2023.
At hearing, Investigator Klein testified as to the Registrar’s involvement and the above timeline.
Investigator Klein testified that Complainant notified him that as of April 3, 2023, the project had been completed and the system was activated.
Complainant testified on his own behalf.
Complainant testified that he was frustrated that a job that should have taken 2 to 4 months to complete took 14 months.
Further, Complainant testified that he was paying on both his traditional electric bill as well as the lease on his solar equipment. Complainant testified too that while Respondent issued two checks to assist him with the payments, he was still seeking financial damages to fully compensate the financial, moral damage and lost opportunities he suffered due to the lengthy delay.
The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.
Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.
Administrative notice was taken of Respondent’s prior License record on May 17, 2021. Such prior License record reflected that Respondent’s License No. 305508 was first issued on May 23, 2016, and reflected that there was one open complaint, namely the present complaint and one resolved or settled case.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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).
The preponderance of the evidence established that there was a violation of A.R.S. § 32-1154(A)(1), as Respondent abandoned the project for nearly a year, before finally enabling the system to be activated.
The evidence established Respondent failed to complete the corrective work within the timeline of the Directive. According to the Written Directive, the corrective work was supposed to be completed prior to 5:00 p.m. on December 12, 2022. Pursuant to the testimony of Investigator Klein and Complainant, the system was not operable until April 3, 2022, over four months later. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of A.R.S. § 32-1154(A)(22).
Finally, while the tribunal understands and sympathizes with Complaint’s frustrations and his desire to be financially compensation for the “moral damage” and “lost opportunities” he suffered because of the delay, that is unfortunately outside of the scope of these proceedings and the tribunal’s authority.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License No. 305508 for a period of two days.
It is further recommended that the Registrar require Respondent to pay the sum of $400.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).
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)(7), unless Respondent tenders payment of any outstanding prior civil penalty.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, March 6, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted electronically to:
Martín Quezada, Director
Registrar of Contractors
Erus Builders LLC
DBA: Erus Energy
[email redacted]
Steve Klein
[email redacted]
Robert Parkens
[email redacted]
By: OAH Staff