ALJDEC - Licensing

2024A-03706-CHC-ROC · Registrar of Contractors · 2024-08-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Encounter Church of the Nazarene,

DBA: Cactus Community Church

COMPLAINANT

v.

ABCO Solar Inc.

License No. ROC 258378,

RESPONDENT

No. 2024A-03706-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 22, 2024

APPEARANCES: Carol Martin appeared via Google Meet on behalf of Complainant Encounter Church of the Nazarene. David Shorey appeared via Google Meet on behalf of Respondent ABCO Solar Inc. Registrar of Contractors Investigator Gregory Johndrow appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE:

_____________________________________________________________________

FINDINGS OF FACT

ABCO Solar Inc., (Respondent) is the holder of License No. 258378 issued by the Arizona Registrar of Contractors (Registrar).

On or about May 2, 2023, Complainant agreed to have Respondent remove and replace air conditioning units as well as install solar panels on the church’s roof. The total contract price was $68,709.00, and Complainant paid $34,354.00.

On or about April 2, 2024, 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 May 1, 2024. Investigator Johndrow noted the following in pertinent part:

General Notes:

The site inspection was performed on this date and time. The respondent was not present for this inspection.

Complaint Item 1: “Complaint 1 of 2: Contract for 76 new SOLAR panels

Church roof prepped May/June. Work stopped

ABCO/Mr Shorey gave excuses and stalled us for summer and fall

11/30/23 he met w/us at church and said "the money we paid them is gone"

Wanted us to buy equip for them to install, we declined

He filed TEP permits 2/8/24

Quit job by ltr 2/22/24

Complaint 1 of 2: SOLAR Contract signed on 5/2/23 w/ABCO for 76 new solar panels. 300+ days w/no solar installed yet.”

Investigator’s Observations: Verified. The respondent provided a letter to the complainant date 2-22-24,next to the signature of David Shorey stating. “ABCO Solar cannot finish the Encounter Christ Church solar and air conditioning projects at this time because of financial circumstances that we cannot overcome right now.”

A deposit was paid to the respondent. No solar work was performed.

Governing Rule: A.R.S. § 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.

Complaint Item 2: “Complaint 2 of 2. Replace AC & HEAT PUMPS (8). Separate contract w/ABCO 5/2/23

Failing heat and air system

A very hot summer in the church used fans to move hot air; had to use portable heaters this winter (Dec- March 24).

Still NO Pump/AC equip from ABCO after 300 days.

On 2/22/24 ABCO gave us a "quit ltr" due to their financial problems.

This is the 2nd contract w/ABCO from 5/2/23. After 300 days ABCO has no installed the 8 Daikin SEER Heat Pump A/C units”

Investigator’s Observations: Verified. The respondent provided a letter to the complainant date 2-22-24, next to the signature of David Shorey stating. “ABCO Solar cannot finish the Encounter Christ Church solar and air conditioning projects at this time because of financial circumstances that we cannot overcome right now.”

A deposit was paid to the respondent. No HVAC work was performed.

It should be noted that upon receiving the respondent’s letter, the complainant hired another contractor who has completed the installation of new rooftop mounted HVAC units.

Governing Rule: A.R.S. § 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.

(All errors contained in the original).

On May 6, 2024, the Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1).

On or about May 20, 2024, Respondent submitted an Answer to the Registrar.

On or about June 4, 2024, a Notice of Hearing was issued setting a hearing on July 22, 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 and findings from his inspections.

Investigator Johndrow testified that there was no Written Directive issued as the Mr. Shorey sent a letter on April 22, 2024 informing Complainant that it could not finish the two projects.

Further, Investigator Johndrow testified that Complainant hired a different contractor to complete the air conditioning project.

Ms. Martin testified on behalf of Complainant. She testified that she had lost faith in Mr. Shorey and was disappointed that Mr. Shorey waited until November 30, 2023 to let Complainant know of his financial situation, and that the money Complainant paid, was used for other projects.

Mr. Shorey testified on behalf on Respondent. He did not dispute the allegations, instead he testified that he was upset at the Arizona “Corruption” Commission for essentially putting him out of business by forcing the sale of his property for $246,000.00.

Mr. Shorey also testified that Respondent was trying to collect $100,000.00 from another job, but attempts have been unsuccessful.

Administrative notice was taken of Respondent’s prior License record on May 17, 2021. Such prior License record reflected that Respondent’s License No. 258378 was first issued on September 3, 2009, and reflected that the license was revoked as of July 19, 2024. Also, there were two open cases, one of which was the present case, as well as four “Disciplined Cases”.

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 abandoned the project in violation of A.R.S. § 32-1154(A)(1), as it took payment from Complainant and did not complete the project.

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. 258378.

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, August 5, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Gregory Johndrow

[email redacted]

ABCO Solar Inc

[email redacted]

Carol Martin

[email redacted]

By: OAH Staff