ALJDEC - Licensing

2024A-06341-CHC-ROC · Registrar of Contractors · 2024-09-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Aaron Kafer ,

COMPLAINANT,

SunUp America LLC,

License Nos. ROC 333266, 325273, and 325608

RESPONDENT.

No. 2024A-06341-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 9, 2024

APPEARANCES: Aaron and Megan Kafer represented themselves. Fred Ritchie appeared on behalf of SunUp America LLC. Arizona Registrar of Contractors Investigator Mark Nipp appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

EXHIBITS ADMITTED INTO EVIDENCE: Registrar’s Notice of Hearing Packet (Packet).

_____________________________________________________________________

FINDINGS OF FACT

SunUp America LLC (Respondent), is the holder of License No. 333266, License No. 325273, and License No. 325608 issued by the Arizona Registrar of Contractors (Registrar).

On November 10, 2023, Aaron and Megan Kafer entered into a contract with Respondent for the installation of a photovoltaic solar system. The Kafers gave a $20,000 check as an initial down payment/deposit; they financed a portion of the project. Salt River Project (SRP) is the Kafer’s utility company.

On June 4, 2024, the Registrar received a Licensed Complaint Form (Complaint) against Respondent from Complainant making several general allegations, including: the work had started in November 2023 and stopped in March 2024, and was not completed; that 50% had been paid on the contract; that there was a failure of communication to the homeowner and subcontractors; and that subcontractors had not been paid.

The Registrar assigned the Complaint to Investigator Mark Nipp. On July 10, 2024, Investigator Nipp conducted a Jobsite Inspection. The Jobsite Inspection Notes provide as follows:

Complaint Item #1: Work not finished.

Investigator’s Observation: Verified

Both parties agreed that the solar panels were installed.

Both parties agreed that the inverter, meter, and sub-panels are installed.

Both parties agreed the system is not complete or energized.

Both parties agreed that the Respondent does not have approved plans from SRP to move forward.

I saw that the installation was incomplete and the system was not energized. The contract was signed on 11/10/2023. I was not able to inspect the solar panels themselves because the Complainant did not have an appropriate ladder. However, both parties agreed that the solar panels are installed.

The respondent should correct by appropriate means, pursuant to the contract, applicable building codes, and within the scope of their license. The Respondent’s ROC license is currently Revoked and no corrective work can be completed by them.

Reference Picture(s) 1-6

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.

A.R.S. § 32-1154(A)(3); 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.

Governing Rule: A.R.S. § 32-1154(A)(3); Violation of any rule adopted by the registrar; Namely R4-9-108(B); in part, A contractor shall perform all work in accordance with any applicable building codes and professional industry standards...a contractor shall use such skills, prudence, and diligence in performing and completing tasks...

Complaint Item #2: Work not permitted before starting.

Investigator’s Observation: Not Verified - Insufficient Evidence

Both parties agreed that the Respondent has obtained a permit; however,

the plans are not approved with SRP because they have to upgrade the main breaker box which is not included on the current plans.

Neither party provided a copy of the permit. I am not able to retrieve permits from SRP and could not verify when the permit was issued in relation to when the work began.

No further action is required.

Reference Picture(s) N/A

Governing Rule: N/A

Complaint Item #3: Communication Stopped

Investigator’s Observation: Not Verified – This complaint item does not indicate poor workmanship or a violation of A.R.S. § 32-1154(A).

No further action is required.

Reference Picture(s) N/A

Governing Rule: N/A

Because the Respondent’s licenses had been revoked and they would be unable to perform corrective work, Investigator Nipp did not issue a Directive. Investigator Nipp forwarded the matter to the Registrar’s Legal Department.

On July 12, 2024, the Registrar issued a Citation against Respondent charging possible violations of the following laws: A.R.S. § 32-1154(A)(1); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A); and A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(B).

On July 18, 2024, the Registrar received an Answer to the Citation. Respondent’s corporate counsel, Paul E. Gugel, filed a response denying all the charges, and indicating that there were design changes required by the utility and then by homeowners. Mr. Gugel noted: “SunUp America sold its existing customer base to SunUp-Arizona, LLC d/b/a Simple Solar Industries earlier this year, before all of SunUp America's licenses were voluntarily cancelled or revoked.” Mr. Gugel further indicated: “SunUp-Arizona plans to continue sending its technicians out to get as many systems activated, and as many ROC complaints against SunUp America resolved, as it has resources to accomplish.”

The Registrar subsequently referred the matter to the Office of Administrative Hearings for conduct of an administrative hearing regarding the Complaint.

Investigator Nipp testified consistent with his findings contained in his Jobsite Inspection Notes.

Mr. Ritchie indicated that the changes required by SRP included new wiring and the drawings were not correct but now are pending. Mr. Ritchie testified that SunUp-Arizona dba Simple Solar Industries is certified to work with Tesla.

Complainant indicated there is no set time table for the finishing the wall (a portion of which had to come down for reinstallation of the electrical box) and to reinstall the electrical box.

The parties gave conflicting testimony regarding who took, or has, responsibility for finishing the wall. Mr. Ritchie stated that it was a “he said-she said” situation. However, Mr. Kafer stated that he had recorded conversations and written confirmation regarding the wall, and a gate, to be done by Respondent.

Mr. Kafer indicated that he had been advised by Investigator Nipp that Respondent could not come back to do work on the property because Respondent had no license to do the work.

Mr. Ritchie indicated he had offered to come out but that Mrs. Kafer is insistent on them not coming out and, therefore, it’s not abandonment. Mr. Ritchie indicated that he was hired to find a way to get all of Respondent’s contracts done and that his company (i.e., SunUp-Arizona) is a licensed contractor.

Administrative notice is taken of the status of Respondent’s licenses according the Registrar’s public records, which show Respondent’s three licenses are revoked, effective August 8, 2024.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Respondent’s revoked licenses does not deprive Complainants of their right to prosecute the Complaint and does not prevent the Registrar from determining the merits of the Complaint and imposing discipline on a license. See A.R.S. § 32-1154(D).

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 evidence of record established that Respondent’s work was not completed per Respondent’s contract. Complainant established that Respondent had not completed the project without legal excuse in violation of A.R.S. § 32-1154(A)(1), namely abandonment.

The evidence of record established that Respondent’s work was not in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent had not completed the project in a workmanlike manner in violation of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(A).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s Order, the Registrar shall revoke Respondent’s License No. 333266, License No. 325273 and License No. 325608.

It is further recommended that, pursuant to A.R.S. § 32-1154(E), the Registrar require Respondent to pay the sum of $500.00 as a civil penalty.

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 (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 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 28, 2024.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

Registrar of Contractors

SunUp America LLC

625 S. Smith Rd., Suite 11

Tempe, AZ 85288

[email redacted]

Mark Nipp

[email redacted]

Aaron Kafer

[email redacted]

By: OAH Staff