ALJDEC - Licensing
2023A-06493-CHC-ROC · Registrar of Contractors · 2023-11-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Philip Lipman
COMPLAINANT,
v.
The Sun Company Texas LLC
DBA: The Sun Company
License No. ROC 325554,
RESPONDENT.
No. 2023A-06493-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 30, 2023
APPEARANCES: Complainant Philip Liman represented himself. No one appeared on behalf of Respondent The Sun Company Texas, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. Respondent The Sun Company Texas LLC DBA: The Sun Company (Respondent) holds License number 325554, issued by the Registrar of Contractors (the Registrar).
2. On or about July 11, 2019, Complainant Philip Lipman and Respondent entered into a commercial construction contract wherein Respondent would install two solar parking structures and a related new electrical service for Complainant. The amount owed under the contract was $51,040.00.
3. On or about December 28, 2022, Respondent began construction.
4. On or about December 30, 2022, Respondent stopped construction.
5. Complainant paid Respondent $33,176.00 under the contract.
6. Complainant filed a complaint with the Registrar against Respondent alleging abandonment on the part of Respondent.
7. Registrar Investigator Michael Springer conducted an investigation into the complaint.
8. On July 5, 2023, Investigator Springer conducted a job-site inspection.
9. On May 27, 2020, the Registrar issued a Directive against Respondent’s license. The Directive provided, in relevant part, as follows:
Dear Respondent:
After investigation, the Registrar has verified that your work fails to meet minimum workmanship standards. A.R.S. § 32-1154(A)(3); A.A.C. R4-9-108. 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 24, 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 reasons1, 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: 1 - I entered into this contract four years ago. It took three years to get Sun Company to do the electrical service. They have delayed, strung us along and consistently lied to us for four years and it is clear they have no intention of completing the project.
Investigator’s Observation: New Electric panel was installed 12-22. Contract states "TSC will schedule your System installation at a mutually convenient date and time. TSC anticipates, under normal circumstances, work will begin approximately 60 days from the date of this Agreement or 90 days if HOA Approval is required. The TSC start date is contingent upon Powers Solar Frames providing the materials to erect the carport structure. The on-site installation is typically completed approximately 10 days after work begins. Required inspections take approximately 14 days from installation completion. When". There was a slight delay for a variance on the front structure which was taken care of within the first 9 months per Complainant. Respondent stated he was short on labor because of another job. I asked which job was bid first and he stated "this one". Contractor is not being diligent in scheduling and completing work.
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.
10. Respondent did not correct Complaint Item 1 by July 24, 2023.
11. On or about August 15, 2023, the Registrar issued a Citation against
Respondent’s license. Through the Citation, the Registrar alleged that Respondent may have violated Ariz. Rev. Stat. section 32-1154(A)(1),(3), and (22); Arizona Administrative Code (A.A.C.) R4-9-108(C). The Citation shows that if the Administrative Law Judge finds that the alleged charge is valid, the Registrar may suspend or revoke Respondent’s license.
12. Respondent filed a timely answer to the Citation.
13. The matter was referred to the Office of Administrative Hearings (the OAH) for an evidentiary hearing.
14. On September 14, 2023, the Registrar issued a Notice of Hearing setting the matter for hearing on October 30, 2023. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.
15. A hearing was held on October 30, 2023.
16. At hearing, Complainant testified on behalf of himself. Complainant explained that Respondent abandoned the project and performed poor work. Investigator Springer testified consistently with his job site inspection notes and the issuance of the Directive.
17. No one appeared on behalf of Respondent at the hearing on October 30, 2023. No one filed a request to appear telephonically on behalf of Respondent. Although the hearing did not start until approximately 9:15 .m., no one appeared on behalf of Respondent through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. section 32-1101 et seq.
2. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See Ariz. Rev. Stat. section
41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno 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 section 5 (1960).
3. The undisputed evidence established that Respondent abandoned the solar installation and electrical contract, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(1).
4. The preponderance of the evidence shows that Respondent failed to complete the project in accordance with professional industry standards, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(3) and A.A.C. R4-9-108(C).
5. The preponderance of the evidence shows that Respondent failed to comply with the Register’s Directive, which is a violation of Ariz. Rev. Stat. section 32-1154(A)(22).
ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend ROC License: No. 325554 held by The Sun Company Texas LLC DBA: The Sun Company, for three days.
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. section 32-1154(E).
It is further recommended that no future license shall be issued to any entity consisting of persons associated with Respondent, as defined in Ariz. Rev. Stat. section 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, November 20, 2023.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole
Registrar of Contractors
[email redacted]
Philip Lipman
[email redacted]
Mike Springer
[email redacted]
The Sun Company Texas LLC
DBA: The Sun Company
[email redacted]
By: OAH Staff