ALJDEC - Licensing

2023A-06069-CHC-ROC · Registrar of Contractors · 2023-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Joseph Hofmeister,

COMPLAINANT,

v.

Cactus Valley Electrical LLC

License No. ROC 330931,

RESPONDENT.

No. 2023A-06069-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 12, 2023

APPEARANCES: Complainant Joseph Hofmeister appeared on his own behalf. Samuel Wang, Esq. represented Respondent Cactus Valley Electrical, LLC. Bryce Gurr and Samuel Matei appeared as witnesses.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Cactus Valley Electrical, LLC (“Respondent”) is the holder of License Number 330931 issued by the Arizona Registrar of Contractors (“Registrar”).

Joseph Hofmeister (“Complainant”), on behalf of the Prescott Elk Lodge (the “Lodge”), “engaged” Respondent to perform “the electrical work to allow [the Lodge] to expand [the] current RV park by 11 sites.” There is no written contract for the project.

On or about May 23, 2023, the Registrar received a Complaint against Respondent from Complainant alleging abandonment of the project.

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)(8).

Complainant testified that the Lodge has a history with general contractor, Gurr Construction (“Gurr”), as Gurr had replaced the roof in July 2021, and the Lodge was pleased with the work performed. According to Complainant, the Lodge “was impressed with the electrical contractor” utilized by Gurr. The electrical contractor is Respondent.

Representatives of the Lodge, including Complainant, requested that Respondent perform an RV expansion and Respondent began performing work for the infrastructure in July 2022. Complainant testified that thereafter, Respondent did not return to the project.

Complainant testified that Respondent had advised the Lodge to install a 2000 amp panel to transfer power from APS to solar in order to expand the RV park, and that an issue arose with sourcing the panel for the project.

Complainant testified that during a September 2022 meeting with Respondent, the 2000 amp panel was discussed and Complainant was advised that the Lodge would have to pay for the panel. Complainant testified that there had been a misunderstanding as to who would pay for the panel as Complainant believed the panel was included in the cost of the project. Complainant testified that Respondent believed the cost for the panel would be between $20,000.00 and $25,000.00.

Complainant asserted that Respondent “did not pursue [a quote] with diligence” as there was no follow up from September 2022 until December 2022, and then not again until March 2023.

A bid for the panel was obtained from City Electric Supply on March 27, 2023, in the amount of $102,602.30. Complainant testified that the quote was more than what the Lodge was willing to pay, and further, that he contacted an electrical engineer and was told that a 2000 amp panel was not necessary as the Lodge had enough power for the expansion project without a 2000 amp panel. Therefore, the need for the panel no longer existed. Complainant asserted that Respondent never provided a reasonable alternative for power for the expansion project to the Lodge.

On April 15, 2023, Complainant texted Respondent the following in pertinent part:

Didn’t hear back but the whole project has gotten ridiculous. I assume there is no chance the price for that panel will be anywhere around $20,000 we were planning.

Also you told us it was under production in December and now we find it has never gotten to production.

So we have decided to start all over with a local electrician. We can’t lose another year when we could have been netting $9000 per month.

Complainant requested a refund from Respondent representing the credit for the solar panels that were sold back to Respondent that Complainant asserted was to be applied to the expense of expanding the RV park.

Bryce Gurr, a member of Respondent, testified that Respondent was hired to perform an expansion of the RV pedestals and to obtain a price for the panel upgrade. Mr. Gurr testified that there was no contract for the procurement of the panel and no estimate for the cost of the panel had been provided from Respondent to Complainant. Mr. Gurr explained that Respondent had mentioned to Complainant that the price of the panel could range from $20,000.00 to $60,000.00, and that Respondent could not obtain an actual estimate until engineering was completed. Respondent could not request an estimate from the manufacturer until December 2022, because the plans and engineering needed to be completed and an estimate could not be provided without design plans. Mr. Gurr testified that after Respondent provided Complainant with the actual cost of the panel, Complainant did not want the work to be performed and indicated that a local contractor would be hired.

Mr. Gurr further testified that the credit for the solar panels was applied to the cost of the infrastructure that was performed by Respondent. Mr. Gurr testified that Complainant did not request that Respondent change its scope of work and proceed without solar, and that Respondent had been moving forward with the project based on the premise that Complainant wanted a solar system installed. Mr. Gurr testified that with the credit, the Lodge continued to owe Respondent $10,000.00.

Administrative notice is taken of Respondent’s prior License record on September 27, 2023. Such prior License record reflects that Respondent’s License Number 330931 was first issued on October 9, 2020, and is active. Such prior License record also reflects that there is only the instant open Complaint, and no prior complaints or discipline 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 party asserting an affirmative defense has the burden of establishing the affirmative defense.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is: “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

A.R.S. § 32-1154(A) provides that

The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

. . . .

8. Failure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.

The credible evidence of record established that the parties agreed that Respondent would obtain a quote for the cost of a 2000 amp panel and Respondent did so. Complainant was concerned regarding the length of time that it took Respondent to obtain a quote for the panel. Respondent explained the delay in obtaining the quote was due to needing design plans and engineering. Complainant ultimately did not want to pay the amount quoted and stated that he would hire another electrical contractor. Therefore, the credible evidence of record failed to establish that Respondent abandoned the project, and consequently, the evidence failed to establish that Respondent violated A.R.S. § 32-1154(A)(1).

Regarding the Registrar’s charge of failing to complete a construction project for the price stated in the contract, or in any modification of the contract, the undisputed evidence of record established that the parties did not have a contract. The credible evidence of record further established that Respondent advised Complainant that it could not ascertain the cost of the panel until the design and engineering was submitted to the manufacturer. A definitive price for the panel was not provided to Complainant until after the quote was obtained, at which time, Complainant rejected the quote. Therefore, the evidence failed to establish that Respondent violated A.R.S. § 32-1154(A)(8).

RECOMMENDED ORDER

It is recommended that the Registrar dismiss Complaint Number 2023-06069 against Respondent.

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 29, 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]

Joseph Hofmeister

[email redacted]

Cactus Valley Electrical, LLC

[email redacted]

Samuel Wang, Esq.

Law Offices of Samuel Wang, PLLC

[email redacted]

Jim Dimond

[email redacted]

By: OAH Staff