ALJDEC - Licensing
2024A-09080-CHC-ROC · Registrar of Contractors · 2024-12-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Carrie Haney,
COMPLAINANT
v.
Sunny Energy LLC
License No. ROC 301018,
RESPONDENT
Terry Rials,
INTERVENOR
No. 2024A-09080-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 8, 2024, and December 3, 2024
APPEARANCES: Complainant Carrie Haney appeared on her own behalf. Joseph Cunningham, Owner, appeared on behalf of Respondent Sunny Energy LLC. Terry Rials, Qualifying Party, was granted Intervenor status and was represented by Ryan Talamonte.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
EXHIBITS ADMITTED INTO EVIDENCE: Administrative Notice was taken of the Hearing Packet submitted by the Registrar of Contractors. Respondent’s Exhibits 1 through 3.
_____________________________________________________________________
FINDINGS OF FACT
Sunny Energy LLC (Respondent) is the holder of License No. 301018 issued by the Arizona Registrar of Contractors (Registrar).
On or about March 14, 2024, Carrie Haney (Complainant) entered into a contract with Respondent for the installation of a solar system on a new home. At the time Complainant signed the contract, she paid a $1,000.00 deposit.
In June 2024, Complainant took possession of the home.
On or about July 24, 2024, Complainant paid Respondent an 80 percent deposit of $26,005.00 towards the project.
On or about July 25, 2024, Respondent filed a petition for bankruptcy.
Respondent scheduled installation of the system on August 1, 2024.
On or about August 1, 2024, Respondent failed to appear at the jobsite to install the solar system,
Complainant contact Respondent and spoke to Yolanda, who informed Complainant that one of the installers was out and they would have to reschedule.
Complainant called Michael Summers, the salesman that sold her the system, regarding the failure to appear. Mr. Summers told Complainant about the bankruptcy filing and said there was no one left to do the work.
On or about August 6, 2024, Complainant contacted Respondent again and left a voicemail stating that she was aware of the bankruptcy filing and wanted her money back.
Respondent’s employee, Melanie Love, returned Complainant’s call and stated that she “did not know how long it will take to get their refund.”
On or about August 9, 2024, Complainant filed a complaint with the Registrar alleging abandonment with respect to the project.
The Registrar assigned the complaint to Investigator James Carter. After a jobsite inspection, Investigator Carter 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 Tuesday, September 10, 2024.
. . . .
DIRECTIVE REQUIREMENTS
You are directed to remedy the following violations by the appropriate means:
Complaint Item: 1 - Solar Panels never got installed as scheduled on August 1st. Found out company filed chapter 11 Bankruptcy on July 26th.
Investigator’s Observation: Verified. Investigator has confirmed there has been no work started. Respondent shall complete project per original contract agreement, properly executed change orders, verbal agreements, local building codes and manufacturers installation instructions.
Governing Rule: Failure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the Registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive. A license shall not be revoked or suspended nor shall any other penalty be imposed for a violation of this paragraph until after a hearing has been held.
A.R.S. § 32-1154(A)(22)
Following the issuance of the written directive, Respondent did not reach out to Complainant regarding the performance of any corrective work. After the deadline in the directive expired, Investigator Carter was notified no corrective work had been performed.
The Registrar issued a Citation against Respondent, charging possible violations of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(22).
Investigator Carter testified consistently with his observations during the jobsite inspection. Investigator Carter noted that no compliance inspection was performed.
Richard Haney, Complainant’s husband, testified no one from Respondent reached out to him or Complainant after August 1, 2024, regarding rescheduling the installation. Complainant stated no one from Respondent reached out to him or Complainant between the date of the written directive and the deadline for compliance.
Complainant testified that no one told her the installation would not occur on August 1, 2024, and she only found out when she called to see why no work was being performed. Complainant stated no one reached out to her regarding rescheduling the installation for several days, and when she found out about the bankruptcy, she had concerns regarding the warranty if Respondent went out of business. Complainant questioned the integrity of Respondent for accepting over $26,000.00 from her the day before the company filed bankruptcy. Complainant indicated that she had been told that Respondent was going to sell some of its existing contracts to other companies and she may have to pay more if that occurred. Complainant stated she did not want to be forced into a contract with a company she did not select. Complainant testified that no one from Respondent reached out to him or Complainant between the date of the written directive and the deadline for compliance.
Joseph Cunningham, Owner, testified that at the time Respondent accepted payment from Complainant, it intended to fulfill the terms of the contract. Mr. Cunningham stated that one or more installer did not show up on August 1, 2024, but offered no explanation why that was not communicated to Complainant. Mr. Cunningham testified that Respondent attempted to reschedule the installation after August 1, 2024, and prior to Complainant asking for a refund on August 6, 2024, but again offered no details on what those efforts entailed. Mr. Cunningham stated that after the bankruptcy petition, Respondent was unable to return Complainant’s deposit to her and could not perform the work because she had cancelled the contract. Mr. Cunningham asserted that Respondent was legally unable to perform either task. Mr. Cunningham offered no evidence that Respondent reached out to Complainant between August 20, 2024, and September 10, 2024, to schedule any corrective work to be done.
Administrative notice is taken of Respondent’s prior License record on December 23, 2024. Such prior License record reflects that Respondent’s License No. 301018 was first issued on September 8, 2015, and is active. Such prior License record also reflects that there were no other open complaints and one prior resolved/settled complaint against Respondent’s license.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
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 established that Respondent submitted a bid for Complainant’s project, accepted $27,005.00, and did not perform the work in the bid. Accordingly, Complainant established that Respondent abandoned the contract and failed to complete the project in a professional and workmanlike manner in violation of A.R.S. § 32-1154(A)(1).
The evidence established that Respondent did not attempt to complete the corrective work following the Directive being issued. While Respondent argued it was fired from the job, it made no effort to contact Complainant after the issuance of the directive to give Complainant the opportunity to let it perform the work identified. 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 suspend Respondent’s License No. 301018 for a period of five days.
It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E).
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 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, December 23, 2024.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Ryan Talamante
VAN COTT & TALAMANTE, PLLC
[email redacted]
James Carter
[email redacted]
Sunny Energy LLC
[email redacted]
Carrie Haney
[email redacted]
By: OAH Staff