ALJDEC - Licensing

2023A-03243-CHC-ROC · Registrar of Contractors · 2023-09-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Mark S. Harris,

COMPLAINANT,

v.

Vision Solar, LLC

License No. ROC 334176,

RESPONDENT.

No. 2023A-03243-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 7, 2023

APPEARANCES: Complainant Mark S. Harris appeared on his own behalf. Respondent Vision Solar, LLC failed to appear. Arizona Registrar of Contractors Investigator David Fagerburg appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Vision Solar, LLC (“Respondent”) is the holder of Specialty Dual CR-11 Electrical License Number 334176 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about June 11, 2021, Mark S. Harris (“Complainant”) contracted with Respondent for Respondent to install a complete solar powered system at Complainant’s residence. The contract contains License Number ROC293498, which belongs to Protech Solar, LLC. Protech Solar, LLC’s License Number 293498 was voluntarily canceled on April 25, 2022. The contract price was $47,250.00.

On or about March 16, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment of the project.

The Registrar assigned the Complaint to Investigator David Fagerburg. Investigator Fagerburg conducted a Jobsite Inspection on May 4, 2023. Investigator Fagerburg’s Jobsite Inspection Notes set forth the following:

Investigator Notes:

1: In reviewing the Vision Solar Residential Sales Agreement dated 6-11-2021 provided by the complainant I am able to verify the license number listed ROC 293498 was issued to Protec Solar LLC and was voluntarily canceled 4-25-2022.

2: ROC 334176 was issued to the Vision Solar LLC on July 26, 2021. The respondent is using the wrong license number on the Vision Solar LLC Residential Sales Agreement violating A.R.S. § 32-1154 (A) (14) (Wrong Name).

3: In reviewing the Residential Sales Agreement I am able to verify there is at least 1 of the 9 minimum elements of a contract missing violating ARS §32-1158 (A) Minimum elements of a contract. Specifically #9.

Compliant Item 1: lnstallation was not done to Cave Creek code.

Investigator’s Observation: Verified. At this jobsite investigation I observed a solar panel system that has been disassembled on the flat roof of the home. See P (8), P (9), P (12) and P (16) thru P (20). During this jobsite investigation the complainant stated that the solar panels were reinstalled after the respondent repaired damages caused to the flat roof foam during the initial installation. The complainant stated the last time anyone was at the project was December 2022. I am able to verify the complainant signed the Residential Sales Agreement on 6-11-2021 and the solar panel system is not operational. The respondent shall comply with the local building authority code requirements, pass all required inspections and complete the project per contract.

Compliant Item 2: The panel's corners punctured my roof membrane, causing leaks inside. Mounting hardware was scattered on the roof and walked on, puncturing my roof membrane.

Investigator’s Observation: Verified. At this jobsite investigation I observed drywall damage in the kitchen, living room and bedroom. The damage observed is directly below where the respondent installed the solar panels, mounting hardware and conduit. See P (3) thru P (7). During this jobsite investigation on the roof I observed a solar panel system that has been disassembled with solar panels stored on the flat roof of the home. See P (8), P (9), P (12) and P (16) thru P (20). The complainant showed me areas where roof tar was used to patch holes in the foam roof which is not compatible with roof foam. I am unable to verify who may have used roof tar to patch holes in the foam roof. See P (9) thru P (11). I also observed mounting clips on the foam roof. See P (13). The complainant also showed me areas where there are damages that appear to be from the respondent using a conduit bender with puncture marks resembling the diameter of the conduit. See P (14) and P (15). I am able to verify there is damage to flat roof foam membrane that has caused leaks into the interior of the home damaging the drywall at various locations related to the respondent’s solar panel installation. The respondent shall correct the damaged caused to the foam roof membrane and interior drywall by appropriate means and complete the project per contract.

Compliant Item 3: A month later my panels were removed and new roofing membrane applied.

Investigator’s Observation: Not Verified. At this jobsite investigation I am unable to verify when the respondent may have removed the panels and applied new roofing membrane.

Compliant Item 4: A month and a half later they came back and reinstalled the panels according to local code.

Investigator’s Observation: Not Verified. At this jobsite investigation I observed a solar panel system that has been disassembled on the flat roof of the home. See P (8), P (9), P (12) and P (16) thru P (20). At the time of this jobsite investigation I am unable to verify whether or not the respondent came back and reinstalled the panels according to local code.

Compliant Item 5: After another month of inaction they informed me that I need a "panel upgrade" (included in cost)

Investigator’s Observation: Not Verified. At this jobsite investigation I had no knowledge as to who or what the complainant was informed of regarding a panel upgrade.

Compliant Item 6: I started calling every week to see what was going on. They said, "I understand your frustration."

Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.

Compliant Item 7: A building permit appeared on the panel in April without

notification from Vision Solar.

Investigator’s Observation: Not Verified. At this jobsite investigation I had no knowledge as to when a building permit may have appeared on the main service panel, who may have put a building permit on the main service panel or when . I did not observe a permit on the main service panel. See P (19).

Compliant Item 8: The contractor listed on the permit was Protech Solar LLC

Investigator’s Observation: Not Verified. At this jobsite investigation I am unable to verify who is listed on the permit as the complainant did not show me the permit.

Compliant Item 9: I looked up their license. It hasn't been active for a year and a half.

Investigator’s Observation: Verified. Prior to this jobsite investigation in reviewing the license number listed on the Vision Solar Residential Sales Agreement I am able to verify ROC 293498 was voluntarily cancelled on 4-25-2022. ROC 334176 Vision Solar LLC was issued 7-26-2021 after the contract was signed on June 11, 2021.

Compliant Item 10: They said that they were bought by VS and that they were using their license.

Investigator’s Observation: Not Verified. At this jobsite investigation I had no knowledge as to who or what may have been said to the complainant.

Compliant Item 11: The inspecter from Cave Creek came out and failed the inspection.

Investigator’s Observation: Verified. At this jobsite investigation I observed a solar panel system that has been disassembled on the flat foam roof of the home. See P (8), P (9), P (12) and P (16) thru P (20). The complainant stated that the inspection failed due to the solar panels being installed too close to the flat foam roof perimeter. The respondent shall comply with the local building authority code requirements, pass all required inspections and complete the project per contract.

Compliant Item 12: I was told that they didn't have a local contractor to finish the work.

Investigator’s Observation: Not Verified. At this jobsite investigation I had no knowledge as to who or what may have been told to the complainant.

Compliant Item 13: The APS application for work, expired. APS asked me to sign the docs again. I have refused until someone from Vision Solar contacts me to address problems.

Investigator’s Observation: Not Verified. At this jobsite investigation I had no knowledge as to whether or not the APS application for work expired or who may have asked the complainant to sign the docs again.

Compliant Item 14: I call them weekly, not being able to get past their "conceierge".

Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.

Compliant Item 15: I sent the CEO a message thru Linkedln, which he ignored.

Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.

Compliant Item 16: I contacted the VP of Installations, he had just quit VS and suggested a lawyer.

Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.

Compliant Item 17: I have photos, a phone log and e-mails to back up my claims.

Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.

Investigator Fagerburg 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 Thursday June 1, 2023.

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

Compliant Item 1: lnstallation was not done to Cave Creek code.

Investigator’s Observation: Verified. The respondent shall comply with the local building authority code requirements, pass all required inspections and complete the project per contract.

Compliant Item 2: The panel's corners punctured my roof membrane, causing leaks inside. Mounting hardware was scattered on the roof and walked on, puncturing my roof membrane.

Investigator’s Observation: Verified. The respondent shall correct the damaged caused to the foam roof membrane and interior drywall by appropriate means and complete the project per contract.

Compliant Item 11: The inspecter from Cave Creek came out and failed the inspection.

Investigator’s Observation: Verified. The respondent shall comply with the local building authority code requirements, pass all required inspections and complete the project per contract.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliant Item 3: A month later my panels were removed and new roofing membrane applied.

Investigator’s Observation: Not Verified. I am unable to verify when the respondent may have removed the panels and applied new roofing membrane.

Compliant Item 4: A month and a half later they came back and reinstalled the panels according to local code.

Investigator’s Observation: Not Verified. At the time of this jobsite investigation I am unable to verify whether or not the respondent came back and reinstalled the panels according to local code.

Compliant Item 5: After another month of inaction they informed me that I need a "panel upgrade" (included in cost)

Investigator’s Observation: Not Verified. I had no knowledge as to who or what the complainant was informed of regarding a panel upgrade.

Compliant Item 6: I started calling every week to see what was going on. They said, "I understand your frustration."

Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.

Compliant Item 7: A building permit appeared on the panel in April without

notification from Vision Solar.

Investigator’s Observation: Not Verified. I did not observe a permit on the main service panel.

Compliant Item 8: The contractor listed on the permit was Protech Solar LLC

Investigator’s Observation: Not Verified. I am unable to verify who is listed on the permit as the complainant did not show me the permit.

Compliant Item 9: I looked up their license. It hasn't been active for a year and a half.

Investigator’s Observation: Verified. ROC 334176 Vision Solar LLC was issued 7-26-2021 after the contract was signed on June 11, 2021.

Compliant Item 10: They said that they were bought by VS and that they were using their license.

Investigator’s Observation: Not Verified. I had no knowledge as to who or what may have been said to the complainant.

Compliant Item 12: I was told that they didn't have a local contractor to finish the work.

Investigator’s Observation: Not Verified. I had no knowledge as to who or what may have been told to the complainant.

Compliant Item 13: The APS application for work, expired. APS asked me to sign the docs again. I have refused until someone from Vision Solar contacts me to address problems.

Investigator’s Observation: Not Verified. I had no knowledge as to whether or not the APS application for work expired or who may have asked the complainant to sign the docs again.

Compliant Item 14: I call them weekly, not being able to get past their "conceierge".

Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.

Compliant Item 15: I sent the CEO a message thru Linkedln, which he ignored.

Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.

Compliant Item 16: I contacted the VP of Installations, he had just quit VS and suggested a lawyer.

Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.

Compliant Item 17: I have photos, a phone log and e-mails to back up my claims.

Investigator’s Observation: This is a statement made by the complainant that does not imply poor workmanship.

Following the expiration of the deadline in the Written Directive, on June 2, 2023, Investigator Fagerburg contacted Complainant who advised that he had been in ongoing communication with Respondent and agreed to extend the deadline in the Written Directive to June 16, 2023.

On June 20, 2023, Investigator Fagerburg contacted Complainant who advised that he had not had any further communication from Respondent and no corrective work had been performed. Investigator Fagerburg also called Respondent on June 20, 2023, and did not receive a return call.

Thereafter, Investigator Fagerburg forwarded the matter to the Registrar’s Legal Department. The Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(1), A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a), A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158, A.R.S. § 32-1154(A)(14), and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The hearing was scheduled to convene on September 7, 2023, at 9:00 a.m. The Registrar issued the Notice of Hearing to Respondent at its address and email address of record. On July 25, 2023, the Office of Administrative Hearings issued a Minute Entry Setting the Hearing Via Google Meet. That Order contained the Google Meet link to join the hearing by video or by telephone. It was issued to Respondent’s email address of record.

On the date and at the time set for hearing, Complainant appeared on his own behalf. Investigator Fagerburg was present. Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Fagerburg testified consistently with his findings contained in his Jobsite Inspection Notes and Written Directive. Investigator Fagerburg testified that he observed stacked solar panels, installed brackets, asphalt patching, debris, a rounded indentation on the roof, and that a meter for the system had not been installed. Investigator Fagerburg testified that he observed multiple punctures on the roof and that there were four areas of interior water damage. During his testimony, Investigator Fagerburg referenced the photographs he took during the Jobsite Inspection.

Investigator Fagerburg testified that there were multiple failed inspections by the Town of Cave Creek.

Investigator Fagerburg testified that Respondent used the wrong license number on the Vision Solar LLC Residential Sales Agreement. Investigator Fagerburg further testified that Respondent’s contract did not contain a provision advising a homeowner of the right to file a complaint with the Registrar and instructions regarding how to do so.

Investigator Fagerburg further testified that the scope of Respondent’s license does not allow for Respondent to perform drywall, paint or roof repairs. Investigator Fagerburg testified that during his conversations with Respondent’s representative, Respondent did not seem to understand the scope of Respondent’s license and the fact that pursuant to such scope, Respondent is not allowed to perform roof or interior drywall work.

Complainant testified regarding the history of the project and his dealings with Respondent. Complainant testified that Respondent performed work on the project within a couple of weeks of contracting for the work. However, because the Town of Cave Creek does not allow solar panels to be installed within three feet of parapets, the solar panels had to be removed, were re-installed, removed a second time, and they have not been re-installed. Complainant further testified that after the solar panels were removed, his roof leaked due to Respondent’s employees having “poked holes in the roof,” resulting in interior water damage. Complainant expressed his frustration over the fact that it has been 27 months since he contracted with Respondent, and he still does not have a functioning solar system installed, and has roof and interior damage.

Complainant testified that after the issuance of the Written Directive, Respondent sent its employees to the home to perform roofing repairs and repairs to the interior of the home. However, because Respondent was not licensed to perform roofing or interior work, Complainant “sent them away.”

Administrative notice is taken of Respondent’s prior License record on September 13, 2023. Such prior License record reflects that Respondent’s License Number 334176 was first issued on July 26, 2021, and is active. Such prior License record also reflects that there are five (5) open complaints, eleven (11) resolved/settled complaints, and five (5) disciplined cases 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 of record established that Respondent failed to return to complete the project that it contracted to perform, and further established that there was no legal excuse for such failure. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(1).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent did not complete the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).

The evidence established that Respondent’s contract documents did not contain a provision advising a homeowner of the right to file a complaint with the Registrar and instructions regarding how to do so. Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent’s contract contained the wrong license number, and as such, was acting in the capacity of a contractor under a license in a name other than as set forth on the license. Therefore, Complainant established that Respondent violated A.R.S. § 32-1154(A)(14).

The evidence established that Respondent did not complete the corrective work following the Written Directive being issued and that valid justification for such failure did not exist. 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).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s License Number 334176 for a period of ten (10) days.

It is further recommended that the Registrar require Respondent to pay the sum of $500.00 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 (30) 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.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine (9) terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty (30) days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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, September 19, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Cindy Casaus, Interim Director

Registrar of Contractors

[email redacted]

David Fagerburg

[email redacted]

Vision Solar, LLC

[email redacted]

Mark S. Harris

[email redacted]

By: OAH Staff