ALJDEC decisions subject to certification as final

2019A-00157-CHC-ROC · Registrar of Contractors · 2019-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 10, 2019, 8:30 A.M. APPEARANCES: Complainant Aimee Scoggins appeared on her own behalf; Respondent Gary Cooper Stubbs appeared on his own behalf ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Gary Cooper Stubbs, DBA Stubbs Contracting (Respondent), is the holder of License Number 129904 issued by the Registrar of Contractors (Registrar). 2. On or about January 10, 2019, Aimee Scoggins (Complainant) filed a Complaint against Respondent with the Registrar alleging poor work and abandonment in connection with remodeling by Respondent for Complainant at a residence in Phoenix, Arizona. 3. After an inspection of the job site on February 14, 2019, the Registrar issued a Directive dated April 8, 2019, requiring Respondent to remedy various alleged violations by April 25, 2019, as follows: Complaint Item 1: Contractor did not get building permits for jobs he was doing. Investigator’s Observation: Plumbing work was completed/corrected by other than Respondent. Electrical work remains incomplete, permits and inspections have not been completed. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Complaint Item 6: Contractor abandoned his work and didn’t show up or answer phone. Investigator’s Observation: Contractor stopped work. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Complaint Item 15: Contractor refused to give license # or get electrical permit. Investigator’s Observation: Permit was pulled by Complainant. Numerous electrical corrections were identified on Inspector’s Notice. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Complaint Item 16: Contractor left live wires in ceiling that were exposed. Investigator’s Observation: Permit was pulled by Complainant. Numerous electrical corrections were identified on Inspector’s Notice. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Complaint Item 20: Contractor wired 1 AC unit to two separate fuses refused to fix it. Investigator’s Observation: Permit was pulled by Complainant. Numerous electrical corrections were identified on Inspector’s Notice. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. Complaint Item 21: Contractor used flexible tubing instead of metal for outside wiring. Investigator’s Observation: Permit was pulled by Complainant. Numerous electrical corrections were identified on Inspector’s Notice. Governing Rule: ARS §32-1154 (A) (3), Poor work not performed in accordance with professional industry standards. 4. When the Registrar was informed that no corrective work was performed, the Registrar then issued a Citation to Respondent, dated May 8, 2019, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(1) (abandonment of a contract or refusing to perform without legal excuse for the abandonment); b. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); c. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification). 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for September 10, 2019, at 8:30 A.M. At the hearing, Complainant Aimee Scoggins testified on her own behalf and presented the testimony of Samuel Maples; Respondent presented the testimony of Gary Stubbs. Linda Melton, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s exhibit numbers 2 - 12 and 18.[1] 6. The Investigator on behalf of the Registrar testified as to her communications with Complainant and Respondent, her inspections of the job site, and the Directive issued by the Registrar as a result of her observations from her inspection. Specifically, she testified there were no plumbing and electrical permits in place when the work was done but that Complainant ultimately obtained permits. She stated there was no written contract between the parties. She stated further that Complainant’s son was doing the electrical work and she believed that he was a direct employee of the contractor. 7. Complainant Aimee Scoggins testified that Respondent moved the gas pipe line and thereafter found a leak and stated that Complainant was going to have to get a “real plumber.” She stated Respondent had a new plumber come out in November 2018 and the new plumber refused to work on it. Ms. Scoggins further testified that she retained another plumbing contractor to redo Respondent’s work and replace the entire gas line. She also stated she had problems with the delay in electrical work that Respondent’s son was performing and that he ultimately left the job and that she would not let him do any further work. She said Respondent attempted to collect for his son’s electrical work and threatened to place a lien on the property. She stated that Respondent included electrical materials in his billings and in fact purchased some of those materials. 8. Samuel Maples, Complainant’s boyfriend, testified on behalf of Complainant that he participated in some of the work to keep some of the costs down. He stated that Respondent never gave them a written contract or a price for the work. He stated Respondent’s son, Bryan Stubbs, was referred by the framers and that Bryan referred Respondent to Complainant. He stated Respondent stated to him that he was a general contractor and that his son Bryan was working “under his wing.” 9. Respondent Gary Stubbs testified that he had wanted a second opinion on the gas line but the company sent someone out that would not look at it. He stated he did some plumbing and sheet rock work for Complainant and claimed to have not been paid in full, which he believed caused this entire problem. He admitted that as a result he did not go back to correct any of the Directive items and admitted that he was not a licensed plumber or working under anyone’s license. He stated his son Bryan was unlicensed but claimed that Bryan was using the license of Bryan’s employer to do the electrical work for Complainant. He further testified that his son occasionally works for him and that he was buying electrical materials for Complainant’s job because he could get a better price.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. 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 preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119. 3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994); see also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990). 4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following: …

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

3. Violation of any rule adopted by the registrar. …

22. 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….

5. As it relates to the grounds under A.R.S. § 32-1154(A)(3) concerning a violation of any rule adopted by the Registrar, Arizona Administrative Code Rule 4-9-108(A), provides that “[a] contractor shall perform all work in a professional and workmanlike manner.” 6. A.R.S. § 32-1154(A)(1). Complainant has not presented sufficient evidence to establish cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(1) for Respondent’s alleged abandonment or refusal to perform work without a legal excuse. Although there was evidence presented that Respondent and/or his son did not return to the project, there was also evidence presented that at one point Complainant refused to allow any further work. Accordingly, there is insufficient evidence to support a finding of abandonment. 6. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s licenses under A.R.S. § 32-1154(A)(3). With respect to Complaint Item 1, Respondent did not dispute that the gas plumbing work he performed was redone by another contractor or, more importantly, needed to be redone. With respect to Complaint items 15, 16, 20, and 21 relating to electrical corrections required as specified in the municipality inspection, there is further no dispute that these items were not corrected. Rather, Respondent contended that these items were not his responsibility because his son performed the electrical work. 7. There was sufficient evidence presented to find that Respondent was responsible for the electrical work performed by his son, an unlicensed contractor. The Tribunal attached significant weight to the absence of a written contract between Complainant and Respondent, a violation of A.R.S. § 32-1158(A) for which Respondent was not cited. The presence of a valid written contract, which would have contained a description of the work to be performed, could have been dispositive of this issue. Similarly, the testimony of Bryan Stubbs who did the electrical work could have supported Respondent’s position. Without such a contract and the testimony of Respondent’s son, Respondent’s testimony in this regard was not sufficient to rebut Complainant’s understanding of Respondent’s role on the project, which was that of a general contractor. 8. A.R.S. § 32-1154(A)(22). Complainant has also presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22) for failure to perform corrective action. Respondent did not present a valid justification for his failure to fully perform corrective action. Further, there was no evidence presented that Complainant refused access to the project after the Directive was issued and before the Directive deadline expired. 9. Accordingly, Complainant has established that Respondent’s license should be disciplined for a violation of A.R.S. § 32-1154 (A)(3) and A.R.S. § 32-1154 (A)(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of this Order, Gary Cooper Stubbs (DBA Stubbs Contracting) License Number 129904 is suspended for four days. IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $500.00 in certified funds on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to:

Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

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)(7), unless Respondent tenders payment of the outstanding prior civil penalty. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of the certification. Done this day, September 30, 2019.

/s/ Roger A. Geddes_____ Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the submissions from the Registrar to the Arizona Office of Administrative Hearings.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826