ALJDEC - Licensing
2024A-01561-CHC-ROC · Registrar of Contractors · 2024-09-19
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Darrell L Vetter,
COMPLAINANT,
v.
SunUp America LLC
License No. ROC 325273 and
333266,
RESPONDENT.
No. 2024A-01561-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: Convened and concluded on August 9, 2024. Record left open until August 30, 2024.
APPEARANCES:
For Complainant: Darrell L. Vetter.
For Respondent: Failed to appear.
For the Registrar of Contractors: Steve Philpott.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Hearing Packet submitted by the Registrar of Contractors. Complainant’s Exhibits V1–V99.
_____________________________________________________________________
FINDINGS OF FACT
SunUp America LLC (Respondent) was the holder of Licenses numbered 325273 and 333266 issued by the Arizona Registrar of Contractors (Registrar) on July 9, 2019, and May 6, 2021, respectively.
On or about July 8, 2022, Darrell L. Vetter (Complainant) entered into a contract with Respondent for, among other things, the installation of a 13.2 kilowatt solar system.
On or about February 9, 2024, Complainant filed a Licensed Complaint Form with the Registrar claiming Respondent poorly installed solar, created dangerous electrical issues, and many other problems.
Respondent submitted an request for dismissal on February 23, 2024. Respondent objected to the complaint, claiming double jeopardy.
The Registrar assigned the complaint to Investigator Steve Philpott, who issued a Jobsite Inspection Notice on March 7, 2024, scheduling the inspection for March 21, 2024.
Investigator Philpott conducted the jobsite inspection on March 21, 2024, and Respondent was not present. Following the inspection, Investigator Philpott did not issue a written Directive; however, at the jobsite inspection, Investigator Philpott made the following findings:
Compliance Item: 9 - electrical piping not trenched , spanning space in yard to pole and also spanning 2 seperate structures
Investigator’s Observation: This complaint item has been partly verified. While previously deemed code compliant due to county approval, it is now believed to reveal poor workmanship upon inspection. The home, being a stationary object, contrasts with the pole, which is subject to movement from typical windy conditions, resulting in damage to the connection and inadequate securing. Respondent is required to rectify this issue through suitable measures. See JSI photo 16, 24, of 25. The piping between the structures has been approved by the county. No action required for this part of the complaint.
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.
Compliance Item: 10 - electrical piping to MSP to long, forced into box at 30*angle , breaking fittings, exposing wire
Investigator’s Observation: This complaint item has been verified. While previously deemed code compliant due to county approval, it is now considered to reveal poor workmanship upon inspection. The piping from the ground being a stationary object, contrasts with the pole, which is subject to movement from typical windy conditions, resulting in damage to the connection and inadequate securing. Respondent is required to rectify this issue through suitable measures. See JSI photo 10 of 25
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.
Compliance Item: 16 - 3 holes drilled through breezeway roof
Investigator’s Observation: This complaint item is verified. Two areas were identified where it appeared a screw was recently installed and then subsequently removed leaving an area that required minor touch up paint work. See JSI photos 20 and 21 of 25. Respondent shall correct by appropriate
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.
Compliance Item: 19 - new breaker wrong , leaving 1/2"x3" hole.
Investigator’s Observation: This complaint item has been verified. While arguably deemed code compliant due to county approval, it is considered poor workmanship upon inspection. The label on the panel clearly indicated that “Any circuit breaker installed, replaced or added in the panelboard must be manufactured by Siemens and must be of the correct type as indicated in the tabulation below” Respondent is required to rectify this issue through suitable measures.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(b): A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use such skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of a similarly licensed contractor possessing ordinary skill and capacity.
Investigator Philpott declined to reinvestigate items that had either (1) been adjudicated by an Administrative Law Judge in matter number 2023A-01807-CHC-ROC or (2) been approved by the Mohave County Development Services Department.
On April 10, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), specifically R4-9-108(A), and A.R.S. § 32-1154(A)(20).
On April 24, 2024, Respondent submitted an answer, denying the charges and claiming “legal impossibility to correct due to the fallout from Case 2023-01807.”
On May 31, 2024, the Registrar issued an order quashing the citation and complaint due to defective service.
On May 31, 2024, the Registrar reissued the Citation against Respondent, finding cause to charge Respondent with violations of A.R.S. § 32-1154(A)(3), specifically R4-9-108(A), and A.R.S. § 32-1154(A)(20).
Respondent submitted an Answer to the updated Citation on June 13, 2024, which was substantially similar to its prior Answer.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On June 25, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing at August 9, 2024.
The Registrar mailed the Notice of Hearing to Respondent at its address and email address of record.
A June 26, 2024 order from the Office of Administrative Hearings advised the parties of how to connect to the hearing via Google Meet.
The hearing was held via Google Meet on August 9, 2024.
Despite having filed an Answer with the Registrar, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Respondent did not request that the hearing be further continued.
Investigator Philpott testified to the information presented above. Investigator Philpott’s testimony made clear that the Mohave County Development Services Department wrongly approved some of Respondent’s work on Complainant’s property, even though the work did not meet workmanship standards, and almost certainly did not meet Mohave County’s code. Investigator Philpott explained that the Registrar cannot override the county.
Complainant testified that Respondent did horrible work on his property, and that the county wrongly approved it. Complainant testified to his frustration and suffering in the aftermath of Respondent’s work. Complainant said that he had gotten other opinions that work done was both dangerous and not legal.
Respondent failed to appear at the Hearing.
Administrative notice was taken of Respondent’s prior License record on September 17, 2027. According to that record, Respondent’s License No. 333266 was revoked on August 28, 2024. There were 7 open complaints and 5 disciplined cases. Respondent’s License No. 325273 was revoked on February 15, 2024. There were 7 open complaints and 5 disciplined cases.
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 his right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint.
Pursuant to A.R.S. § 32-1104(A)(5), “[i]f the rules of minimum standards adopted by the registrar are in any manner inconsistent with a building or other code of this state, a county, city or other political subdivision or local authority of this state, compliance with such code shall constitute good and workmanlike construction for the purposes of this chapter.” Accordingly, a county code establishes workmanship standards for that county. However, a county inspector’s approval does not mean that workmanship meets county standards as a matter of law. While that approval may create a presumption of compliance with the workmanship standards, an inspector for the Registrar may find a violation of the county’s workmanship standards, and an Administrative Law Judge may recommend discipline for the same.
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.”
The preponderance of the evidence established that the county inspector incorrectly approved work done on this project, and Complainant was denied access to the Registrar’s process due to the county inspector’s error.
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), specifically regarding Compliance Items 9, 10, 16, and 19.
The evidence failed to establish that Respondent had a person named on the license who was named on another license that was suspended or revoked in violation of A.R.S. § 32-1154(A)(20). While a review of individuals named on licenses numbered 325273 and 333266 did identify other active licenses on which those individuals are named, there is no evidence in the record to support this allegation for the licenses at issue.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent’s Licenses numbered 325273 and 333266.
In the alternative, it is recommended that the Registrar keep this matter open and re-inspect Complainant’s property to determine whether the issues that were approved by the Mohave County Development Services Department met the code adopted by Mohave County.
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 19, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Darrell Vetter
[email redacted]
Paul Edward Gugel
[email redacted]
Steve Philpott
[email redacted]
By: OAH Staff