ALJDEC - Licensing

2024A-02243-CHC-ROC · Registrar of Contractors · 2024-07-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

John Rappa,

COMPLAINANT

v.

Power4ward LLC

License No. ROC 335154, 336960

RESPONDENT

No. 2024A-02243-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 2, 2024

APPEARANCES: Complainant John Rappa appeared on his own behalf. Respondent Power4ward LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors.

_____________________________________________________________________

FINDINGS OF FACT

Power4ward LLC (Respondent) is the holder of License No. 335154 and 336960 issued by the Arizona Registrar of Contractors (Registrar).

On or about December 29, 2022, John Rappa (Complainant) entered into a contract with Respondent for, among other things, the installation of a solar system.

On or about February 27, 2024, the Registrar received a Complaint against Respondent from Complainant alleging abandonment and poor work with respect to the project.

The Registrar assigned the complaint to Investigator Joey Chester. After a jobsite inspection, Investigator Chestser 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 Monday, April 8, 2024.

. . . .

DIRECTIVE REQUIREMENTS

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

Complaint Item: Power4ward was paid $26,260 from the lender, as soon as they installed solar panels on my roof. They worked without the required permits from the City of Phoenix and Fire Dept. They never started work upgrading main service panel and never finished install of the panels. They performed illegal, poor-quality work that was abandoned.

Investigator’s Observation: At the time of inspection the work on the solar installation is not completed, and looks to be abandoned by the respondent,

Respondent will obtain a permit, correct any deficiencies required by the county/city, and pass final permit inspection. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.

Governing Rule: ARS §32-1154 (A)(1) Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

Following the issuance of the written directive, Respondent did not contact. After the deadline in the directive expired, Investigator Chester 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)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(C); and A.R.S. § 32-1154(A)(22).

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on July 2, 2024. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record.

A May 22, 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 July 2, 2024.

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

Investigator Chester testified as to his observations of the project during the jobsite inspection. Investigator Chester stated that the allegation of abandonment was based on Respondent’s failure to contact Complainant regarding the corrective work that needed to be done.

Complainant testified that, shortly after the complaint was filed, he received a communication from a California branch associated with Respondent. When Complainant responded asking for clarification, he never received a response.

Administrative notice is taken of Respondent’s prior License record on July 22, 2024. Such prior License record reflects that Respondent’s License No. 335154 was first issued on October 18, 2021, and was active. Such prior License record also reflects that there were two open complaints and two prior complaints resulting in discipline against Respondent’s license.

Administrative notice is taken of Respondent’s prior License record on July 22, 2024. Such prior License record reflects that Respondent’s License No. 336960 was first issued on March 3, 2022, and was active. Such prior License record also reflects that there were no open or prior complaints against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing.

Complainant bears the burden of proof to establish Respondent’s statutory violations 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 evidence failed to establish that Respondent submitted a bid for Complainant’s project and did not perform the work in the bid. Respondent installed the solar system as required under the contract, although with issues. The failure to contact Complainant regarding the corrective work does not constitute abandonment. Accordingly, Complainant failed to establish that Respondent abandoned the contract in violation of A.R.S. § 32-1154(A)(1).

The evidence established that Respondent’s work was not in conformity with the Registrar’s standards. 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(C).

The evidence established that Respondent did not attempt to 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. 335154 for a period of five 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)(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, July 22, 2024.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Joey Chester

[email redacted]

Power4ward LLC

[email redacted]

John Rappa

[email redacted]

By: OAH Staff