ALJDEC - Licensing

2024A-01991-CHC-ROC · Registrar of Contractors · 2024-09-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Charles Hale,

COMPLAINANT

v.

Deep Canyon LLC

License No. ROC 338807,

RESPONDENT

No. 2024A-01991-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 16, 2024

APPEARANCES: Complainant Charles Hale appeared on his own behalf. Gus Maughan, Owner and Qualifying Party, appeared on behalf of Respondent Deep Canyon LLC, which was represented by Adam Weisman.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors. Complainant’s Exhibits 1, 2, 3, 5, 10, 11, 14, 15, and 16.

_____________________________________________________________________

FINDINGS OF FACT

Deep Canyon LLC (Respondent) is the holder of License No. 338807 issued by the Arizona Registrar of Contractors (Registrar).

On or about February 20, 2024, Charles Hale (Complainant) entered into a contract with Respondent for the installation of solar panels.

The contract included the following provision:

A PROPERTY OWNER HAS THE RIGHT TO FILE A WRITTEN COMPLAINT WITH THE ARIZONA REGISTRAR OF CONTRACTORS FOR AN ALLEGED VIOLATION OF ARS 32-1145. THE ARIZONA REGISTRAR OF CONTRACTORS MAY BE CONTACTED AT (602) 542-1525 OR ONLINE AT ROC.AZ.GOV.

On or about February 20, 2024, the Registrar received a Complaint against Respondent from Complainant alleging abandonment with respect to the project.

After the complaint was filed and before a jobsite inspection was conducted, Respondent installed the solar panels, but the project was not completed.

The Registrar assigned the complaint to Investigator Mike Springer.

On or about April 10, 2024, Respondent texted Complainant’s son suggesting that it install a 5k inverter and then later swap it out for the 10k inverter required by the contract once the change was approved by the city.

On or about April 12, 2024, Respondent followed up with a text that provided, “Did you receive email? Decide which way you want to go?”

On April 17, 2024, Investigator Springer conducted a jobsite inspection.

On the same day, Investigator Springer issued a written directive 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 May 3rd, 2024.

. . . .

DIRECTIVE REQUIREMENTS

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

Compliance Item: 1 - No solar panels yet installed no contact from contractor installation last promise Jan 30 nothing done

Investigator’s Observation: Panels have been installed on the roof after complaint was filed. However, Complainant states they are not the 10KW sizing he contracted for and no wiring has been installed to connect the system.

Contract provided is vague and does not meet requirements for elements of contract. No inverters or equipment installed.

On or about May 1, 2024, Respondent texted Complainant’s son, “Per the ROC they wanted me to reach out again to resolve this issue. I emailed my solution on April 10th but haven’t heard back. Let me know if we can resolve this.”

Complainant’s son replied, “Hi – we’d like to go with the previously listed 10000 inverter, thank you!”

Respondent replied, “We can do that. We have to redo the plans. Are you ok to wait?”

Complainant’s son replied, “What’s the timeframe on that?”

Respondent replied, “I’ll find out.”

The next text message occurred on May 3, 2024, when Respondent texted, “Brian, can you call me today? I have a solution for you,” and “Hey Brian, please call when you’re available. I have a path forward.”

The next text message occurred on May 7, 2024, after the deadline in the written directive had expired. At that time, Complainant’s son replied to texts on that day with “Please contact Mike with ROC.”

After the deadline in the directive expired, Investigator Springer was notified no corrective work had been performed.

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(C); A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158; and A.R.S. § 32-1154(A)(22).

Investigator Springer testified as to his observations of the project.

Complainant’s son testified that at no point after the written directive was issued and prior to the expiration of the deadline in the written directive did Respondent propose installing the 10K inverter.

Mr. Maughan testified that the contract was an error. Respondent normally used electronic contracts, but Complainant requested a written contract and the salesperson wrote in a 10K inverter on the contract instead of a 5K inverter. The plans were generated using the 5K inverter. Because the plans had a 5K inverter, the permit provided for a 5K inverter. Mr. Maughan testified that Respondent had a number of 10K inverters available at the time relevant to this matter and was always willing to install it. However, Mr. Maughan could not confirm whether Respondent had ever submitted a new permit for the 10K inverter. Mr. Maughan blamed Respondent’s failure to comply with the written directive on Complainant’s failure to ever give Respondent the “go ahead” to install the 5K inverter and later switch it out for the 10K inverter required by the contract.

Administrative notice is taken of Respondent’s prior License record on September 12, 2024. Such prior License record reflects that Respondent’s License No. 338807 was first issued on June 15, 2022, and is active. Such prior License record also reflects that there were no other open or prior complaints against Respondent’s license.

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).

Generally speaking, citations from the Registrar involving workmanship issues allege possible violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R14-19-108(A) or (B). However, the Citation and Notice of Hearing issued to Respondent in this matter referenced A.A.C. R4-9-108(C), which provides, in pertinent part, as follows:

All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

While Respondent’s work may have failed to meet the Registrar’s workmanship standards, there was no evidence that the project was in a county, city, or town that had no adopted building codes or where the adopted building codes did not contain specific provisions applicable to this project.

Accordingly, Complainant failed to establish that Respondent’s conduct constituted a violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(C).

The evidence established that Respondent’s contract failed to include the required elements of a contract set forth in A.R.S. § 32-1158(A). Therefore, Complainant established that Respondent failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

The evidence established that Respondent did not complete the corrective work following the Directive being issued. 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. 338807 for a period of three days.

It is further recommended that, on or before thirty (30) days after the effective date of the final order, Respondent shall provide a sample contract to the Registrar to demonstrate that it has amended its contracts to include the nine terms required by A.R.S. § 32-1158(A). If Respondent fails to establish to the Registrar that it has brought its contracts into compliance with A.R.S. § 32-1158(A) within thirty days, its contractor’s license shall be suspended until it demonstrates that it has done so.

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)(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 12, 2024.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Mike Springer

[email redacted]

Charles Hale

[email redacted]

Adam Weisman, Esq.

Hinderaker. Rauh & Weisman, P.L.C.

[email redacted]

By: OAH Staff