ALJDEC - Licensing
2024A-07164-CHC-ROC · Registrar of Contractors · 2024-10-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Kenneth Hudson,
COMPLAINANT,
v.
SunUp America LLC,
License No. ROC 325273,
RESPONDENT.
No. 2024A-07164-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 2, 2024
APPEARANCES: Complainant Kenneth Hudson appeared on his own behalf. Arizona Registrar of Contractors Investigator James Carter appeared as a witness. Respondent SunUp America LLC did not appear.
ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn
EXHIBITS ADMITTED INTO EVIDENCE: ROC Notice of Hearing Packet (Packet).
____________________________________________________________________
FINDINGS OF FACT
SunUp America LLC (Respondent), is the holder of License No. 325273 issued by the Arizona Registrar of Contractors (Registrar).
On June 25, 2024, the Registrar received a Licensed Complaint Form (Complaint) against Respondent from Complainant making an allegation of abandonment. Complainant noted that the work had begun in October/November of 2023 and was still not done, with multiple failed inspections by Arizona Public Service (APS).
The Registrar assigned the Complaint to Investigator James Carter. On July 15, 2024, Investigator Carter conducted a Jobsite Inspection. No person arrived for Respondent. The Jobsite Inspection Notes provide as follows:
Complaint Item 1: Complaint Item: 1 - I want the project completed and activated.
Investigator’s Observation: Verified. The system is not currently activated and has not passed final inspection. The Respondent will need to correct this issue by the appropriate means. Since the Respondent is no longer licensed to do this work, the appropriate means will be the two parties coming to a resolution to have an appropriately licensed contractor complete the corrective work.
Governing Rule: 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)(1)
Complaint Item: 5 - I want all of the holes repaired in the building from the numerous times boxes were installed and reinstalled.
Investigator’s Observation: Verified. Investigator observed several holes in the stucco around the system where it appears there were screws holding the system to the wall and had to be moved consistent with the Complainant's allegations. The Respondent will need to correct this issue by the appropriate means. Since the Respondent is no longer licensed to do this work, the appropriate means will be the two parties coming to a resolution to have an appropriately licensed contractor complete the corrective work.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(c): All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.
A.R.S. § 32-1154(A)(3) - R4-9-108(c)
ITEMS NOT REQUIRING CORRECTION:
Complaint Item: 2 - I want compensation for removing 120 SF of Sidewalk.
Investigator’s Observation: Complaint item does not implicate a
workmanship issue, but a matter of compensation the Complainant is requesting for services required to complete the job.
Governing Rule: Not Applicable
Complaint Item: 3 - I want compensation for trenching the conduit lines.
Investigator’s Observation: Complaint item does not implicate a
workmanship issue, but a matter of compensation the Complainant is requesting for services required to complete the job.
Governing Rule: Not Applicable
Complaint Item: 4 - I want compensation for replacing the 120 SF of Sidewalk
Investigator’s Observation: Complaint item does not implicate a
workmanship issue, but a matter of compensation the Complainant is requesting for services required to complete the job.
Governing Rule: Not Applicable
Investigator Smith forwarded the matter to the Registrar’s Legal Department.
On July 22, 2024, the Registrar issued a Citation against Respondent charging possible violations of the following laws: A.R.S. § 32-1154(A)(1); and, A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a).
On August 6, 2024, the Registrar received an Answer to the Citation. Paul E. Gugel filed a response denying the allegations and indicating that the company had been to the Complainant’s home that very day to place the correct solar labels on the system in order to comply with APS requirements.
The Registrar subsequently referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing.
By Registrar Notice of Hearing on Contested Case (Notice), the hearing was noticed to convene on October 2, 2024, via Google Meet.
By Tribunal ORDER dated August 22, 2024, the parties were informed how to connect to the hearing via Google Meet.
The hearing was conducted via Google Meet on October 2, 2024. On the date and at the time set for hearing, 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 Carter testified consistent with his findings contained in his Jobsite Inspection Notes that the system was not activated at that time and there were workmanship issues he had observed.
Complainant testified that there had been “hassles” between the installer and APS with regard to the system, but that the system is now completed and activated. Complainant indicated, however, that the workmanship issues regarding the holes in the stucco remained.
Administrative notice is taken of the status of Respondent’s licenses according the Registrar’s public records, which show Respondent’s three licenses, one of which is License No. 325273, are now revoked, effective August 8, 2024.
CONCLUSIONS OF LAW
The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address and email address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
Respondent’s revoked license does not deprive Complainant of his 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 in conformity with the Registrar’s standards. Therefore, Complainant established that Respondent had not completed the project in violation of A.R.S. § 32-1154(A)(1), and that the work was not shall be performed in accordance with professional industry standards 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. 325273.
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, October 22, 2024.
/s/ Kay Abramsohn
Administrative Law Judge
Transmitted electronically to:
Tom Cole, Director
Registrar of Contractors
Kenneth Hudson
[email redacted]
SunUp America LLC
[email redacted]
[email redacted]
James Carter
[email redacted]
By: OAH Staff