ALJDEC - Licensing
2024A-03893-CHC-ROC · Registrar of Contractors · 2024-10-21
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Diana Cortez,
COMPLAINANT,
v.
Solar Pros Electric LLC
License No. ROC 342453,
RESPONDENT.
No. 2024A-03893-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 1, 2024.
APPEARANCES:
For Complainant: Diana Cortez.
For Respondent: Alex Villanueva.
For the Registrar of Contractors: Investigator Gregory Johndrow.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Administrative notice was taken of the Notice of Hearing Packet submitted by the Registrar of Contractors. Complainant’s Disclosure Statement. Respondent’s Photographs and Exhibits A through C.
_____________________________________________________________________
FINDINGS OF FACT
Solar Pros Electric LLC (Respondent) was the holder of License No. 342453 issued by the Arizona Registrar of Contractors (Registrar) on January 3, 2023.
On or about April 1, 2022, Diana Cortez (Complainant) entered into a contract with Respondent for, among other things, a solar system and replacing her roof. Respondent hired Construction With Quality by Williams & Sons LLC (Construction with Quality) to do the roofing work.
In or around July 2023, after Construction with Quality completed its roofing work, Complainant’s skylight began leaking. Respondent sent another roofer, Abraham, to fix the leaking skylight.
On or about April 2, 2024, Complainant filed a Licensed Complaint Form with the Registrar, claiming poor work and property damage.
The Registrar assigned the complaint to Investigator Johndrow, who issued a Jobsite Inspection Notice on April 16, 2024, scheduling the inspection for June 10, 2024.
Investigator Johndrow conducted the jobsite inspection on June 10, 2024, and Respondent was present. Following the inspection, Investigator Johndrow issued a Written Directive From the Registrar to Respondent on June 12, 2024 that provided as follows:
You are directed to remedy the following violations by the appropriate means:
Complaint Item 1: “...Poor roof workmanship”
(The complainant’s description of the roof ply separation and the leaking skylight.)
Investigator’s Observations: Verified. The conditions described and shown to me at the time of this inspection are present. The ply separation of the roofing material is widespread throughout the entire roof area. The skylight leaks into the storage room.
The respondent acknowledged the conditions, and stated to the complainant and I, they are able and willing to perform the necessary corrections.
Governing Rule: A.R.S. § 32-1154 (A)(3) - R4-9-108(a): Violation of any rule adopted by the registrar; Namely R 4-9-108(a) A contractor shall perform work in a professional and workmanlike manner.
The Written Directive required Respondent to notify Investigator Johndrow of Respondent’s compliance with the directive prior to 5:00 p.m. on June 28, 2024.
On June 28, 2024, Complainant sent an email to Investigator Johndrow. He issued a Compliance Inspection Notice on July 2, 2024, setting the inspection for July 10, 2024. During the inspection, the Compliance Item was deemed incomplete. Although work had been done, it was not to workmanship standards. Investigator Johndrow found the following:
Repairs made to the ply separation of the roofing material has failed on the west side of the residence.
The skylight was removed and patched over. The repair is unsightly in appearance and does not meet industry standards. Additionally, the repair leaks, allowing water into the storage room below.
It should also be noted that the roof was recoated. The recoating was not performed under the solar panels and the vent pipe roof jack from the laundry room was not sealed.
On July 23, 2024, the Registrar issued a Citation against Respondent, finding cause to charge Respondent with violations of 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 August 6, 2024. Respondent’s Answer stated that it had completed the work appropriately.
The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On August 19, 2024, the Registrar issued a Notice of Hearing on Contested Case setting the hearing for October 1, 2024.
The hearing was held via Google Meet on October 1, 2024.
Respondent was not licensed by the Registrar when the contract was executed or while the roofing work was being completed by Construction with Quality. Investigator Johndrow testified to the Registrar’s position about license liability in this matter: even though Respondent was not licensed at the time of the contract with Complainant or while the work was being completed, Respondent was acting as a general contractor. Because Respondent later attained a license, Respondent should be retroactively held accountable for workmanship of its subcontractors as though it was a licensed general contractor at the time.
Investigator Johndrow also testified in support of this investigation and findings.
Complainant testified in support of Investigator Johndrow’s findings.
Respondent testified that they did not do the allegedly deficient work because they were not licensed at the time. Also, it was a paperwork mistake that the contract was not between Complainant and Construction with Quality. Respondent thought that the contractor who did the work should be responsible. Respondent testified that it hired another roofer to complete the Directive work. Respondent testified that the roof may have been damaged by the recent storms in Tucson.
Respondent paid the roofer, Construction with Quality.
Administrative notice was taken of Respondent’s prior License record on October 11, 2024. According to that record, Respondent’s License No. 342453 was active. This matter was the sole complaint against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
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.”
A person who is not a holder of a license or named on a license who commits any of the listed acts or omissions cannot violate A.R.S. § 32-1154(A), which states as follows: “The holder of a license or any person named on a license pursuant to this chapter may not commit any of the following acts or omissions . . . .” Neither the Registrar nor Complainant presented legal authority to support that this provision could be applied retroactively to those who would become licensees. Accordingly, prior to January 3, 2023, when Respondent became licensed, it could not violate A.R.S. § 32-1154(A).
Unlicensed contracting is addressed by other statutes.
Attempting corrective work on a Directive item incurs a responsibility to perform that corrective work competently and in compliance with applicable standards. Accordingly, when a contractor performs corrective work, the contractor cannot damage property or create new workmanship issues. Any damage or new deficiencies in workmanship must be fixed before the directive period ends.
In 2023, Respondent hired Abraham to fix a leaking skylight. In 2024, Respondent hired Abraham again to comply with the Directive. Some of these repairs failed to solve the problem and created new issues: the ply roofing material on the west side of the residence failed and removing and patching a skylight was unsightly and leaked. Respondent was licensed throughout these repairs.
A new complaint and Directive are not required to hold a respondent responsible for its workmanship deficiencies when attempting such repairs. When a licensed contractor attempts repairs pursuant to a Directive from the Registrar, the respondent accepts responsibility for conducting repairs appropriately even if it would not have been responsible but for the attempted repairs.
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 work detailed in paragraph 7. While Respondent was a licensed contractor, its subcontractor attempted to comply with the Directive, and the work resulted in new workmanship deficiencies for which Respondent is responsible in this matter.
The preponderance of the evidence failed to establish 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 for two days Respondent’s License No. 342453.
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, October 21, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Solar Pros Electric LLC
[email redacted]
Gregory Johndrow
[email redacted]
Diana Cortez
[email redacted]
By: OAH Staff