ALJDEC - Licensing

2023A-11277-CHC-ROC · Registrar of Contractors · 2024-03-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lucie Leon,

COMPLAINANT

v.

Big Star Builders, Inc.

License No. ROC 333384,

RESPONDENT

No. 2023A-11277-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 8, 2024

APPEARANCES: Complainant Lucie Leon appeared on her own behalf. Registrar of Contractors Investigator Gregory Johndrow appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-2 were admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

Big Star Builders, Inc. (Respondent) is the holder of License No. 333384 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 11, 2022, Lucie Leon (Complainant) agreed to have Respondent install a solar system, installation of a flat roof and a new 3 ton HVAC system. The contracted amount was $68,235.00.

On or about December 22, 2023, the Registrar received a Complaint against Respondent from Complainant alleging poor work with respect to project.

The Registrar assigned the complaint to Investigator Gregory Johndrow. The jobsite inspection was performed on November 17, 2023.

Investigator Johndrow then issued a written directive on or about November 21, 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 December 7, 2023.

. . .

DIRECTIVE REQUIREMENTS

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

Complaint Item 1: “To date, the solar panels have not been connected and are not operational. They were installed almost 15 months ago.”

Investigator’s Observations: Verified. The solar system is not energized or operational.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;

Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

R4-9-108 (B): a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken...

Complaint Item 4: “Poor work overall. For example: the solar panel nails are protruding through the roof and ceiling. The electric box was installed in the wrong place, twice. They finally sent an electrician to move the box again, but it has been about 2 months and we have heard nothing back.”

Investigator’s Observations: Verified. The mounting fasteners for the rooftop solar equipment has protruded through the roof decking and through the side of the rafters in multiple locations.

Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar;

Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item 2: “We were told by the salesperson that we may pay both utility and loan for a couple of months. We applied the tax credit to the loan and replaced our swamp cooler with an AC unit thinking we can afford it now that we will have solar. It has been almost a year, and our monthly payments has tripled from $160 a month to $600-$700. It has created dire financial hardship on our family.”

Investigator’s Observations: This statement by the complainant does not implicate a workmanship issue, or a violation of A.R.S. § 32-1154(A).

Governing Rule: N/A

Complaint Item 3: “When we informed Big Star Builders/Equisolar (same company) about the financial hardship, and they offered to refund the loan payments, but never sent a check. 6-7 months we pursued the refund and were told it was coming but it never did.”

Investigator’s Observations: This allegation is NOT verified. Although this complaint item alleges a financial dispute with the respondent, it alleges nothing indicating grounds for discipline under A.R.S. § 32-1154(A).

Governing Rule: N/A

Complaint Item 5: “Poor customer service. When we asked about the delay, they blamed it on the electric company. Yet, we see in our inbox, emails from TEP and TDC stating deadlines were missed and extensions were requested and granted numerous times.; No communication. The staff would go weeks and months without calling. Now, they stopped communicating with us. The last time anyone responded to us (call, text, email) was August 14, 2023. One email from our primary point of contact (Santiago) returned undeliverable. ”

Investigator’s Observations: This statement by the complainant does not implicate a workmanship issue, or a violation of A.R.S. § 32-1154(A).

Governing Rule: N/A.

On December 22, 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)(3), namely A.A.C. R4-9-108(b); and A.R.S. § 32-1154(A)(22).

On or about January 5, 2024, Respondent e-mailed an Answer to the Registrar.

On or about January 26, 2024, a Notice of Hearing was issued setting a hearing on March 8, 2024 at the Office of Administrative Hearings, an independent state agency.

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

Investigator Johndrow testified that Respondent failed to appear at the Jobsite Inspection. Further, Investigator Johndrow testified that there was no communication from Respondent whatsoever during his time with the matter.

In addition, Investigator Johndrow testified that he received an e-mail from Complainant on December 8, 2023 informing him that no work corrective work had been performed. Because of this, there was no Compliance Inspection nor prehearing inspection.

Finally, Investigator Johndrow testified that he reviewed Respondent’s Answer to the Complaint, and believed that charging Complainant additional money to fix the home’s electrical system was not proper as this issue should have been contracted for at the beginning, and it was Respondent’s responsibility to do so.

Lucie Leon testified on her own behalf. She testified generally that Investigator Johndrow thoroughly described the issues which were part of her Complaint.

Ms. Leon testified that Respondent would not respond to any messages and calls and she would even have her messages returned as “undeliverable”. Further, there was no communication from August 12, 2023 until December 13, 2023 when a manager named, “Isaac” contacted her.

In addition, Ms. Leon testified that there was extensive damage to the roof from the installation, and that Respondent had promised a refund, but to date, she had not received the same.

Finally, Ms. Leon testified that she is paying for a system that is inoperable and her utility bills have tripled. She also requested that Respondent’s lice be revoked.

The tribunal also notes that both the January 11, 2024 Notice of Hearing from the Registrar and the Order from OAH that same date were sent to Respondent at his address of record.

Although the start of the hearing was delayed approximately 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Administrative notice was taken of Respondent’s prior License record on March 25, 2024. Such prior License record reflected that Respondent’s License No. 333384 was first issued on May 17, 2021, and reflected that there was one open cases, namely the present complaint, one disciplined case and one resolved/settled case.

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 solar panels were inoperable as they were not energized, and there was nail damage to the roof. 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), and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B).

The evidence established Respondent failed to complete the corrective work following the Directive being issued. Further, it was unreasonable for Respondent to demand Complainant pay for materials to repairs Respondent’s work, and does not find that this was a legal excuse for not following the Directive. 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 No. 333384 for a period of ten 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 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.

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 25, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Lucie Leon

[email redacted]

Big Star Builders, Inc.

[email redacted]

[email redacted]

By: OAH Staff