ALJDEC - Licensing

2023A-01807-CHC-ROC · Registrar of Contractors · 2023-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Darrell Vetter ,

COMPLAINANT

v.

SunUp America LLC

License No. ROC 325273,

RESPONDENT

No. 2023A-01807-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 20, 2023

APPEARANCES: Fred Richie represented SunUp America LLC. Darrell Vetter appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Brian Del Vecchio

FINDINGS OF FACT

SunUp America LLC (Respondent) is the holder of License No. 325273 issued by the Arizona Registrar of Contractors (Registrar).

On or about, July 8, 2022, Darrell Vetter (Complainant) entered into a contract with Respondent for, among other things, installation of solar panels.

On or about February 21, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to the project.

The Registrar assigned the complaint to Investigator Clifford Corlett. After a jobsite inspection, Investigator Corlett issued a written directive 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 or before May 19, 2023.

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 remedy the following violations by the appropriate means:

Compliance Item: 8 - 8. Job was in very bad shape too many items to list in this complaint as to why I am requesting a re-inspection.

Investigator’s Observation: Some solar panel connection cables are overstretched/kinked at their connection points. Some solar panel cable ties have failed. Some solar panel cable conduit blocks are raised off the roof.

RESPONDENT SHOULD CORRECT BY APPROPRIATE METHODS.

Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9- 108(a): A contractor shall perform all work in a professional and workmanlike manner.

Following the issuance of the written directive, several workmanship items were repaired. After the deadline in the directive expired, Investigator Corlett performed a compliance jobsite inspection in which he found complaint items were still in violation of the workmanship standards.

The Registrar issued a Citation against Respondent, charging possible violations of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A); and Ariz. Rev. Stat. § 32-1154(A)(22).

Investigator Corlett testified at hearing the original compliant only had 9 issues, however, at the time of the jobsite inspection two more issues were added to the complaint. Investigator Corlett admitted he never climbed a ladder to physically inspect the issues in Complainant’s complaint during the jobsite inspection. Investigator Corlett testified he brought a drone, however, chose not to fly it during his inspection and therefore relied solely on what work was observable from the ground and the photos supplied by Complainant to draft his written directive. Investigator Corlett also testified the Mohave County building authority green tagged Respondent’s electrical work. Because the Mohave County building authority green tagged the job, Investigator Corlett did not need to investigate further into the complaints made by Complainant regarding the electrical work. As a result, complaint items 1, 5, and 7 did not require Respondent to take action. Complaint items 2, 3, and 6 did not require Respondent to take action because the contract terms regarding existing roof conditions explicitly fell upon Complainant. Complaint item 4 did not require Respondent to take action because permits are public records and Respondent was not obligated to provide permits to Complainant upon request. Complaint item 9 did not require Respondent to take action because it is merely a statement of fact, building authorities do not have direct control over licensed building contractors. At the jobsite inspection complaint items 10 and 11 were added. Complaint item 10 stated the main electric panel was difficult to open and stated Respondent was not in compliance; however, Investigator Corlett clarified in his June 7, 2023, Compliance Inspection Observations that the issue regarding the electric panel being difficult to open had been resolved and did not require Respondent to take action. Finally, Compliance item 11 alleged Respondent’s employee drove a truck over Complainant’s artificial turf which caused indentations and warping of the turf. The updated written directive which included both Compliance items 10 and 11 were sent via email to the parties.

Complainant testified Investigator Corlett’s written directive was faulty because he admitted he failed to physically inspect the items he dismissed; specifically regarding the pre-existing roof conditions. Because Investigator Corlett never personally inspected the roof, he would be unable to determine whether a condition on the roof was caused by Respondent or if it was pre-existing.

Mr. Richie admitted at least one of the conduit blocks was not secured properly to the roof. Mr. Richie also admitted his team damaged the turf, however, Complainant refused to allow Respondent to repair the turf and was unwilling to work with Respondent to select a third party contractor to do the work on behalf of Respondent.

Administrative notice is taken of Respondent’s License record on November 4, 2023. Such prior License record reflects that Respondent’s License No. 325273 was first issued on July 9, 2019, and is active. Respondent’s License record also reflects that there were no other open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Complainant bears the burden of proof to establish Respondent’s statutory violations 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.”

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Mr. Richie admitted he believed the repair work on the conduit support boxes complied with the code; however, because the Investigator identified violations after the compliance jobsite inspection, he accepted Investigator Corlett’s assessment of the conduit support box issue. Also, Mr. Richie admitted Respondent failed to take remedial measures with regard to the damaged turf. Mr. Richie attempted to settle the issue on the date of the inspection, however, the parties could not come to terms and the issue remained after the deadline. Notwithstanding Mr. Richie’s admissions, Complainant raised concerns regarding Investigator Corlett’s jobsite inspection and compliance jobsite inspections. Complainant may not agree with the fact that the county building authority green tagged the electrical work, however, the ROC is less specialized than the expert investigators at the county building authority. It is appropriate for the ROC investigator to yield to the expertise of the county building authority when they green tag a project. That said, it is concerning Investigator Corlett failed to physically inspect the allegations within the complaint and instead relied upon third party photos and the limited vantage point from ground level to assess the status of a roof. While it is understandable not every investigator has the physical ability to climb roofs, Investigator Corlett ought to have made alternate arrangements to have another investigator physically inspect the roof if he was incapable of climbing the ladder at the time. Fortunately for Complainant, he may be able to file a new complaint to address the deficiencies of the inspections. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(A).

The evidence established that Respondent failed to complete the corrective work following the Directive being issued. Therefore, Complainant established that Respondent failed to take appropriate corrective action following a written directive from the Registrar in violation of Ariz. Rev. Stat. § 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 Respondent’s License No. 325273 for a period of 1 day.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 32-1101(A)(5), 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, November 9, 2023.

/s/ Brian Del Vecchio

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

c/o Legal Department

1700 W. Washington St., Ste. 105

Phoenix, AZ 85007

[email redacted]

SunUp America LLC

[email redacted]

Darrell Vetter

[email redacted]

By: OAH Staff