ALJDEC - Licensing

2024A-04609-CHC-ROC · Registrar of Contractors · 2024-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Louis Schwarz

COMPLAINANT,

SunUp America LLC

License Nos. ROC 325273, 333266, 325608

RESPONDENT.

No. 2024A-04609-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 7, 2024

APPEARANCES: Complainant Louis Schwarz represented himself. No one appeared on behalf of Respondent SunUp America LLC.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

1. Respondent holds license numbers 325273, 333266, and 325608

issued by the Arizona Registrar of Contractors (Registrar).

2. On April 26, 2024, the Registrar mailed a Notice of Hearing to the parties at their addresses of record, setting the above-entitled matter for hearing on July 8, 2024 at 1:00 p.m. The Notice of Hearing provided, in relevant part, as follows:

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You must attend this hearing. This is an adversarial hearing before an administrative law judge, and is conducted in a similar manner as judicial proceedings. Thus, you must be prepared to present evidence, including witness testimony and documents, in support of your case.

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The complaint and citation allege that the Respondent committed the following act(s): Charge: 1 A.R.S. § 32-1154(A)(1). Charge: 2 A.R.S. § 32-1154(A)(3) - R4-9-108(b)

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Because Respondent is a licensee and is charged with an act(s) or omission(s) that is cause for the suspension or revocation of a license, Respondent is a party to this case and will be a party to the hearing. Because Complainant alleged Respondent committed an act(s) or omission(s) that is cause for the suspension or revocation of a license, Complainant is a party to this case and will be a party to the hearing. Respondent and Complainant, as the parties to the hearing, will present evidence and argument to the administrative law judge.

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3. At the request of Complainant, the hearing was continued to August 9, 2024.

4. Respondent filed a motion to continue the August 9, 2024 hearing and the Administrative Law Judge granted the motion for good cause.

5. On August 9, 2024, the Office of Administrative Hearings (OAH) issued a notice resetting the hearing for October 7, 2024 at 9:00 a.m. through Google Meet.

The Google Meet link was provided in the notice. The notice was sent by e-mail to all parties at their respective e-mail addresses of record with the Registrar.

6. A hearing was held on October 7, 2024.

7. At hearing, Complainant testified on behalf of himself.

8. No one appeared on behalf of Respondent at the hearing on October 7, 2024. Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Respondent through an authorized member, officer, employee, or attorney, or contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license.

9. On or about December 20, 2023, Complainant and Respondent entered into solar panel installation contract for the amount of $41,500. Respondent paid Complainant $1,075.24 for the installation.

10. On or about January 2, 2024, Respondent started work. At this time, Respondent’s license number 325608 was inactive.

11. On or about January 31, 2024, Respondent stopped work.

12. In February of 2024, the Registrar revoked license number 325273 held by Respondent.

13. On or about April 22, 2024, Complainant filed a complaint with the Registrar alleging that Respondent caused his roof to leak and failed to complete the roof installation project.

14. The Registrar assigned Lisa Melton, an investigator for the Registrar (hereinafter “Investigator Melton”), to investigate the complaint.

15. On April 24, 2024, Investigator Melton conducted an initial job-site inspection. Investigator Melton substantiated the complaint items related to water damage and incomplete work. Investigator Melton’s job-site inspection notes provided, in relevant part, as follows:

Compliance Item 1: solar panels installed on roof causing leaks and drywall and insulation damage to home solar system still not completed

Investigator’s Observation: At this jobsite inspection, Cliff Holbrook appeared on behalf of the Respondent. He stated that he had recently obtained a license and was going to be doing the corrective/completion work for the Respondent (revoked). He was not able to provide a license number and I was also unable to match his name to a license in our database. Respondent advised that they had scheduled a permit inspection (solar install) for 4/25/24 (the day after this inspection). In early January, water infiltration during solar array installation caused significant water damage to the residence. Respondent called a restoration company out to address the concern. That company removed the drywall and insulation in the ceilings of numerous rooms and portions of the hallway. That company is also contacting Complainant for payment and threatening a lien. No further action to address the damage was made by Respondent and they have also not completed their scope of work. NO work has been performed since January 31, 2024. There are solar arrays on roof but they are not operable. Damage caused by Respondent’s work has not been corrected. Complainant notified the ROC by email that the inspection performed on the day after this inspection failed and received a red tag. Respondent has not complete the scope of work that they bid/contracted for and the work that they have performed does not comply with code. Respondent has been revoked therefore no Directive will be issued. (See JSI Photos #2 - #5) 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. ARS §32-1154 (A) (3), 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.

16. On April 26, 2024, the Registrar issued a Citation against license numbers 325273, 333266, and 325608, held by Respondent. Through the Citation, the Registrar alleged that Respondent violated Ariz. Rev. Stat. §§ 32-1154(A)(1) and (3); Ariz. Admin. Code R4-9-108(B).

17. Investigator Melton did not issue a Directive to Respondent because its license was revoked and Respondent could not perform any work.

18. As of August of 2024, all three licenses held by Respondent were revoked.

19. At hearing, Complainant stated that Respondent’s insurance company paid to repair the damage caused by Respondent. However, Respondent failed to properly install the solar panels.

20. Investigator Melton testified at hearing regarding her investigation of the complaint.

21. Administrative notice is taken of Respondent’s prior License record as

reflected on the Registrar’s public website on October 29, 2024. Such prior License record reflects that license numbers 325273, 333266, and 325608 have all been revoked by the Registrar.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat. § 32-1101 et seq.

The burden of proof at an administrative hearing falls to the party

asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See Ariz. Admin. Code R2-19-119.

3. The Administrative Law Judge may consider the Registrar’s administrative record. See Ariz. Admin. Code R4-9-118.

4. The revoked status of Respondent’s license does not deprive

Complainant of his right to prosecute the complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint. This matter lies within the Registrar’s jurisdiction.

5. 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).

6. The preponderance of the evidence shows that Respondent failed to

perform all work in accordance with applicable building codes and professional industry standards, which is a violation of Ariz. Rev. Stat. § 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108(B).

7. The preponderance of the evidence shows that Respondent abandoned the

solar panel installation project, which is a violation of violation of Ariz. Rev. Stat. § 32-1154(A)(1).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar revoke license numbers 325273, 333266, and 325608 held by SunUp America LLC.

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 28, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

SunUp America LLC

Tempe, AZ 85288

[email redacted]

Louis Schwarz

[email redacted]

By: OAH Staff