ALJDEC - Licensing

2024A-04814-CHC-ROC · Registrar of Contractors · 2024-09-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Richard Kuhlman,

COMPLAINANT,

v.

SunUp America, LLC

License No. ROC 333266,

RESPONDENT.

No. 2024A-04814-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 11, 2024

APPEARANCES: Complainant Richard Kuhlman appeared on his own behalf. Respondent SunUp America, LLC failed to appear. Arizona Registrar of Contractors Investigator Michael Springer appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

EXHIBITS ADMITTED INTO EVIDENCE: None

FINDINGS OF FACT

SunUp America, LLC (“Respondent”) is the holder of License Number 333266 issued by the Arizona Registrar of Contractors (“Registrar”).

On or about October 18, 2023, Richard Kuhlman (“Complainant”) contracted with Respondent for Respondent to install a complete solar array with an inverter at Complainant’s home.

On or about April 26, 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 Michael Springer. After a June 18, 2024 Jobsite Inspection, 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 July 10th, 2024.

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

Complaint Item: 3 - 11/17/23, AC Soft Start installed incorrectly causing burnout of AC components AC needs replacement @ $5800.00

Investigator’s Observation: Air conditioner has been replaced by others. Soft Start module burned out and has not been replaced.

Complaint Item: 4 - 11/17/23, Survey of post and electric panel incorrectly diagnosed incorrectly regarding installation of Perfect power

Investigator’s Observation: Complainant states a third party stated the power box is sufficient to add larger breaker or additional breakers. However, Respondent contracted for perfect power addition that was not installed.

Complaint Item: 6 - as of 4/27/24 no Perfect Power unit installed per contract

Investigator’s Observation: Perfect power not installed.

ITEMS NOT REQUIRING CORRECTION

The following complaint items require no action by the Respondent:

Complaint Item: 1 - Initial inspector passed roof inspection for panel installation when roof was hail damaged (10/25 /23 - 11/1/23).

Investigator’s Observation: Not a workmanship item I can report on.

Complaint Item: 2 - 11/17/23, Inverter installed over balanced, potential overheating state,

Investigator’s Observation: This was corrected prior to JSI.

Complaint Item: 5 - 11/17/23 no fuses installed in breaker box at inverter post

Investigator’s Observation: This was corrected prior to JSI.

Complaint Item: 7 - as of 4/27/24 no duct sealing per contract

Investigator’s Observation: No contract information provided for duct sealing.

All errors in original.

Following the expiration of the deadline in the Written Directive, Investigator Springer ascertained that Respondent had not performed any corrective work.

Thereafter, Investigator Springer forwarded the matter to the Registrar’s Legal Department. 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).

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

On August 2, 2024, the Registrar issued a Notice of Hearing advising the parties of the hearing date and time of September 11, 2024, at 9:00 a.m., and that a separate Order would be issued by the Office of Administrative Hearings providing a Google Meet link for the hearing. The Notice of Hearing was sent to the parties’ respective mailing and email addresses of record. On August 8, 2024, the Tribunal issued an Order Regarding Hearing that advised the parties that the hearing was scheduled to convene on September 11, 2024, at 9:00 a.m. and the Order contained the Google Meet link to join the hearing by video or by telephone and it was issued to Respondent’s email addresses of record.

On the date and at the time set for hearing, Complainant appeared on his own behalf. Investigator Springer was present. Respondent did not appear through an authorized member, employee, or attorney. Respondent did not request that the hearing be continued. Because Respondent failed to appear, Respondent did not present any evidence to defend its license.

Investigator Springer testified consistently with his findings contained in the Written Directive and the Jobsite Inspection Notes. Investigator Springer testified that Respondent’s contract document does not contain a completion date for the project, and does not contain the advisement regarding a homeowner’s right to file a complaint with the Registrar. Investigator Springer further testified that Respondent’s license has been revoked.

Complainant testified regarding his dealings with Respondent, the deficiencies and delays in the project caused by Respondent, and agreed with Investigator Springer’s testimony.

Administrative notice is taken of Respondent’s prior License record on September 26, 2024. Such prior License record reflects that Respondent’s License Number 333266 was first issued on May 6, 2021, and is revoked. Such prior License record also reflects that there eight (8) open complaints, one (1) resolved/settled complaint, and six (6) complaints resulting in discipline against Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Pursuant to A.R.S. § 32-1154(D), “[t]he expiration, cancellation, suspension or revocation of a license by operation of law or by decision and order of the registrar or a court of law or the voluntary surrender of a license by a licensee does not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such a licensee, or to render a decision suspending or revoking such a license, or denying the renewal or right of renewal of such a license.”

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 established that Respondent’s work was not in conformity with the Registrar’s and/or industry standards. Therefore, Complainant established that Respondent did not complete the project in accordance with professional industry standards in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(c).

The evidence established that Respondent’s written contract does not contain a completion date for the project, and does not contain the advisement regarding a homeowner’s right to file a complaint with the Registrar. 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 issuance of the Written Directive and Respondent did not establish valid justification for such failure. 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 revoke Respondent’s License Number 333266.

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 27, 2024.

/s/ Sondra J. Vanella

Administrative Law Judge

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

Tom Cole

Registrar of Contractors

c/o Legal Department

[email redacted]

SunUp America, LLC

[email redacted]

[email redacted]

Richard Kuhlman

[email redacted]

Mike Springer

[email redacted]

By: OAH Staff