ALJDEC - Licensing

2023A-05077-CHC-ROC · Registrar of Contractors · 2024-03-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Brian Roberson,

COMPLAINANT

v.

Erus Builders LLC

DBA: Erus Energy

License No. ROC 305508,

RESPONDENT

No. 2023A-05077-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 7, 2024

APPEARANCES: Complainant Brian Roberson appeared via Google Meet on his own behalf. Investigator Mike Springer appeared via Google Meet on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1 – 6 were admitted into evidence.

_____________________________________________________________________

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 May 9, 2022, Brian Roberson (Complainant) agreed to have Respondent install solar panels at his residence in Tucson, Arizona. The contracted amount was $36,691.00.

On or about May 1, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Mike Springer. The jobsite inspection was performed on June 26, 2023.

Investigator Springer then issued a written directive on or about June 26, 2023, 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 July 12th, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - Wrong panels not given what I was told I'd get

Investigator’s Observation: Contract states Q.Peak Duo BLKMIL-G9+ panels with a 25 year warranty. Installed panels are JA Solar panels with a 12 year warranty. Panels should match contract or approved change order issued.

Governing Rule: Departure from or disregard of: (b) A building code of this state or any political subdivision of this state in any material respect that is prejudicial to another.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Compliance Item: 2 - Damaged roof

Investigator’s Observation: There are a few nail pops in the shingles at the ridgeline. I cant verify that the Respondent caused this. Nails should have been driven far enough to not pop through shingles.

Governing Rule: N/A

Compliance Item: 3 - Panels mouths installed Improperly

Investigator’s Observation: "Mouths" = Mounts. Frame mounts were mounted into trusses from what I could see. Work was ongoing at time of inspection to correct other issues.

Governing Rule: N/A

Compliance Item: 4 - Wires sticking out of the ground

Investigator’s Observation: One wire at service is sticking out of the ground. It is an abandoned wire. Complainant stated now that he knows it’s a dead wire he would bury it.

Governing Rule: N/A

Compliance Item: 5 - Electric panel conduit not against wall

Investigator’s Observation: Corrected prior to to JSI.

Governing Rule: N/A

Compliance Item: 6 - Damaged stucco ;

Investigator’s Observation: This was corrected prior to JSI.

Complainant states he would touch up paint in this area.

Governing Rule: N/A

Compliance Item: 7 - Is insurance paid floor in purchase agreement not provided

Investigator’s Observation: This is in regards to solar insurance.

Contract provided states $0.00 Charged for this. This would be a financial issue, not a workmanship item.

Governing Rule: N/A

Compliance Item: 8 - Panels sagging wires touching roof

Investigator’s Observation: Panels were removed before JSI. I cannot verify sagging panels or wires. Wiring was being replaced at JSI.

Governing Rule: N/A.

(All errors contained in the original)

Investigator Springer next completed a Compliance Jobsite Inspection on August 7, 2023. In his notes regarding the same, Investigator Springer found the following:

Compliance Findings:

Respondent states original panels were reinstalled per contract and directive. I cannot verify this. Respondent attempted to take picture from underneath but was unsuccessful. No evidence was provided to show make and model of panels. During the CJSI it was found that unused rack mounts were still on the West side of the roof and damage to the shingles where access has been. Respondent stated he would get a roofer to correct. I advised I would be citing and if items were corrected they could cancel the hearing. Camera malfunctioned while taking pictures, no pictures available.

On August 15, 2023, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a); A.R.S. § 32-1154(A)(12) - A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

On or about August 30, 2023, Respondent e-mailed an Answer to the Registrar.

On or about September 13, 2023, a Notice of Hearing was issued setting a hearing on October 27, 2023, at the Office of Administrative Hearings, an independent state agency.

The hearing was continued to allow for the parties to try to resolve the issue. On January 3, 2024, Complainant informed the tribunal that the matter was not resolved, and requested a hearing.

On January 5, 2024, a hearing was set via Minute Entry informing the parties the hearing would take place on March 7, 2024 at 9:00 a.m. All parties were notified of the same via their e-mail addresses of record.

Although the start of the hearing was delayed approximately 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.

At hearing, Investigator Springer testified as to the Registrar’s involvement and the above timeline.

Investigator Springer testified that the incorrect panels were initially installed and that Respondent was directed to correct.

Further, Investigator Springer testified that during the Compliance Jobsite Inspection, there was a significant amount of damage to the shingles on the edge of the roof. Too, Investigator Springer could not verify that the new panels were the correct ones per the contract.

Finally, Investigator Springer testified that the contract did not comply with numbers 1, 4, and 9, of the statute.

Brian Roberson testified on his own behalf. He testified that at the original hearing date, Respondent agreed to once again change out the panels.

Mr. Roberson testified that this occurred around November 2, 2023. Mr. Roberson testified however, that he began to notice that the panels were malfunctioning and that the most recent panels too were incorrect and now faulty as the panels were producing less than the original.

Further, Mr. Roberson testified that because the panels were faulty the manufacturer had voided the warranty on not only the panels but all of the accompanying equipment.

Finally, Mr. Roberson testified that Respondent also failed to provide the appropriate paperwork as promised several times throughout the project.

Administrative notice was taken of Respondent’s prior License record on March 22, 2024. Such prior License record reflected that Respondent’s License No. 305508 was first issued on May 23, 2016, and reflected that there were three open cases, one of which was the present complaint. Further, there were 8 cases in which Respondent was disciplined. Finally, as of February 8, 2024, Respondent’s license had been revoked.

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 Respondent’s work was not in conformity with the Registrar’s standards. The panels were twice replaced with the incorrect panels and with the final set being installed with faulty panels. 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 preponderance of the evidence also established that the parties contract did not meet the requirements of A.R.S. § 32-1158, the estimated completion date, and the “right to file” language. Therefore, the evidence established that Respondent was in violation of A.R.S. § 32-1154(A)(12). The tribunal finds that the actual Purchase Agreement does contain Respondent’s name, address, and license number.

The preponderance of the evidence established Respondent failed to complete the corrective work following the Directive being issued. Per Complainant’s testimony the incorrect panels were again installed in November, and that there was damage done to the shingles on the edge of the roof due to Respondent’s corrective work. 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 revoke Respondent’s License No. 305508.

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 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 the Registrar require Respondent to provide a sample contract which complies with the statutory requirements prior to any reinstatement.

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 22, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Erus Builders LLC

[email redacted]

Brian Roberson

[email redacted]

By: OAH Staff