ALJDEC - Licensing
2023A-14451-CHC-ROC · Registrar of Contractors · 2024-09-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Lora Ann Coleman,
COMPLAINANT,
v.
SunUp America LLC
License No. ROC 325608,
RESPONDENT.
No. 2023A-14451-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Convened and concluded on September 6, 2024.
APPEARANCES:
For Complainant: Lora Ann Coleman and Peter Coleman.
For Respondent: Failed to appear.
For the Registrar of Contractors: Investigator Gregory Johndrow.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Hearing Packet submitted by the Registrar of Contractors.
_____________________________________________________________________
FINDINGS OF FACT
SunUp America LLC (Respondent) was the holder of License No. 325608 issued by the Arizona Registrar of Contractors (Registrar) on July 26, 2019.
On or about February 14, 2023, Lora Ann Coleman (Complainant) entered into a contract with Respondent for, among other things, installation of a furnace.
On or about December 20, 2023, Complainant filed a Licensed Complaint Form with the Registrar, claiming abandonment and poor work.
There had been a prior complaint on this issue, which was resolved by agreement between the parties. When the Registrar assigned the complaint in this matter to Investigator Johndrow, he issued an acknowledgement letter to Respondent on January 12, 2024. Respondent requested a permit, but the application was allowed to expire. On May 13, 2024, Investigator Johndrow determined that Respondent had failed to get a final permit.
Investigator Johndrow issued a Jobsite Inspection Notice on May 13, 2024, scheduling the inspection for May 17, 2024.
Investigator Johndrow conducted the jobsite inspection on May 17, 2024, and Respondent’s representative JC Canderario was present. Following the inspection, Investigator Johndrow issued a Written Directive From the Registrar to Respondent on May 20, 2024, which provided as follows:
You are directed to remedy the following violations by the appropriate means:
The Respondent is to ensure that any and all required building permits are obtained from the Local Building Authorities prior to making corrections listed in this Directive.
If the local jurisdiction finds corrective issues relating to the respondent’s work, the respondent will be required to correct those issues by appropriate means. The respondent is required to submit a copy of the approved inspection results to the ROC Investigator.
Complaint Item 2: “replace insulation that was cut out by Sunup America other contractor”
Investigator’s Observations: Verified. The insulation around the PCV lines located above the attic mounted unit has not been properly reattached.
Complaint Item 4: “the first contractor did not have a permit and the air conditioner was installed wrong because we complain about his work”
Investigator’s Observations: Verified. No permit has been obtained for the replacement of the HVAC system. An application to the town of Sahuarita was submitted and never finalized.
The Written Directive required Respondent to notify Investigator Johndrow of Respondent’s compliance with the Directive prior to 5:00 p.m. on June 7, 2024.
On June 28, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(22).
Respondent submitted an Answer to the Citation on July 12, 2024. Respondent’s Answer stated that it denied charges one and two, and it claimed legal justification for charge three, stating that it did not have sufficient staff.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On July 26, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing on September 6, 2024 at 9:00 AM.
The Registrar mailed the Notice of Hearing to Respondent at its address and email address of record. During the investigation, Investigator Johndrow achieved communication with Respondent using the same address and email address.
On or about August 1, 2024, the Office of Administrative Hearings issued an Order of Virtual Hearing, advising the parties of how to connect to the hearing via Google Meet.
The hearing was held via Google Meet on September 6, 2024.
Respondent did not request that the hearing be further continued. Although the start of the hearing was delayed, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.
Investigator Johndrow testified to his involvement in the matter. He also testified that no corrective work had been done and that Respondent had failed to get a permit.
Complainant testified that Respondent did poor work on her home and would not fix it. Respondent was also rude over the phone.
Respondent failed to appear at the Hearing.
Administrative notice was taken of Respondent’s prior License record on September 24, 2024. According to that record, Respondent’s License No. 325608 was revoked on August 22, 2024, for discipline. The license had 1 open and 3 disciplined complaints.
CONCLUSIONS OF LAW
Respondent was deemed to have received the Notice of Hearing by methods reasonably calculated to effect notice. The Registrar mailed copies of the Notice of Hearing on Contested Case to its address and email address of record, and the Office of Administrative Hearings sent the order setting the continued hearing date to Respondent at its email address of record.
This matter lies within the Registrar’s jurisdiction.
Respondent’s revoked license does not deprive Complainant of her right to prosecute her complaint or prevent the Registrar from determining the merits of the complaint.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. Respondent bears the burden of proof to establish an affirmative defense 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.”
Economic stress and staff cutbacks are not a legal justification for failing to comply with the Directive.
The preponderance of the evidence established that Respondent departed from or disregarded a building code in violation of A.R.S. § 32-1154(A)(2)(b).
The preponderance of the evidence established that Respondent failed to perform all work in a professional and 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 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. 325608.
It is further recommended that the Registrar require Respondent to pay the sum of $500 as a civil penalty pursuant to A.R.S. § 32-1154(E). No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), 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, September 25, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
SunUp America LLC
[email redacted]
[email redacted]
Lora Ann Coleman
[email redacted]
Gregory Johndrow
[email redacted]
By: OAH Staff