ALJDEC decisions subject to certification as final

2019A-01079-CHC-ROC · Registrar of Contractors · 2019-08-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 16, 2019, 8:30 A.M. APPEARANCES: Complainant appeared through Jim Steg, owner; Respondent Anthony England appeared on his own behalf ADMINISTRATIVE LAW JUDGE: Roger A. Geddes _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. Anthony Lee England, DBA: England Electric (Respondent), is the holder of License Number 059415 issued by the Registrar of Contractors (Registrar). 2. On or about March 5, 2019, general contractor Steg Custom Homes, Inc. (Complainant) filed a Complaint against Respondent subcontractor with the Registrar alleging abandonment in connection with remodeling work performed by Respondent for Complainant at a residence in Phoenix, Arizona. 3. After an inspection performed by the Registrar on April 9, 2019, the Registrar issued a Directive, dated April 9, 2019, requiring Respondent to correct various alleged deficiencies in Respondent’s work by April 26, 2019, as follows: Complaint Item 1: Abandonment Complainant points out step lights that are not completed per contract. Verified light trim is not installed. Respondent shall complete project per original contract agreement, properly executed change orders, local building codes and manufacturers installation instructions.

4. After being informed that Respondent had failed to comply with Directive, the Registrar then issued a Citation to Respondent, dated May 7, 2019, for the alleged violation of the following: a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108 for failure to meet minimum workmanship standards); b. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification). 5. The Registrar issued a Notice of Hearing, setting a hearing for July 16, 2019, at 8:30 A.M. At the hearing, Complainant presented the testimony of Jim Steg, owner. Respondent Anthony England testified on his own behalf and presented the testimony of Brian England. Steve Klein, the Registrar Investigator (Investigator), testified on behalf of the Registrar. The Tribunal received and admitted Complainant’s Exhibit numbers 1 - 3 and Respondent’s exhibit numbers 1 - 3.[1] 6. The Investigator testified on behalf of the Registrar as to his communications with Complainants and Respondent, his inspection of the job site, and the Directive issued by the Registrar as a result of his observations from his inspection. He testified further that he observed at his inspection that the trim lights were not installed and that on April 30, 2019, he confirmed with Complainant that they still had not been installed. 7. Jim Steg testified on behalf of Complainant that he paid Respondent $18,978.30 as required under the contract after 70% of the rough was completed but did not pay the remaining amount of the contract because Respondent had not finished the seven trim lights required under the contract. He stated he would have paid the remaining amount on the contract had the work been completed. He further testified that the steps had always been ready for Respondent to install the trim lights. He stated further that he hired another electrician after the Directive expiration date to complete the seven trim lights. 8. Anthony England testified that he did not attend the inspection or respond to the Directive because he did not receive notice due to the fact that he was living in a home different from the address he had on record with the Registrar. He acknowledged that he did not have his mail forwarded from his address of record with the Registrar. Mr. England further testified that the steps were not ready for installation of the trim lights at the time that Respondent completed all of the rest of the trim in the residence in January 2019. 9. Brian England testified on behalf of Respondent that there were issues in November 2018 in getting paid by Complainant. He stated that on January 20, 2019, Respondent ordered all of the trim to complete the project, including the trim lights for the stairs. He stated Respondent then completed the trim for the residence on January 28, but that the stairs were not yet completed by Complainant or its subcontractors for the light trims to be installed. He stated that Respondent still has the trim light materials in storage but that Complainant is withholding payment of $7,067.70 to Respondent because the stair trim lights were not installed, which is the subject of another pending complaint with the Registrar. 10. Respondent presented evidence of a text exchange with Jim Stegg from February 7, 2019: Anthony England: Miley is done, except for step lights. You can deduct that from amount due. I'm in contact with Andrew on the other. Jim Stegg: Got it. Thanks. Jim Stegg: Don’t worry about caglioti… I got it. Anthony England: Great Just waiting on payment for Miley then Jim Stegg: Would you like to revise the estimate on Miley? Anthony England: Just confirming are you paying the invoice or are we turning it l. To attorney (Respondent’s Exhibit 1). Respondent stated he heard nothing further from Complainant regarding the step trim lights and believed based on the foregoing exchange that Complainant had accepted the removal of the step lights from the contract. 11. Complainant presented evidence of a text exchange with Anthony England from February 21, 2019: Anthony England: Step lights cancelled Look for your court date Jim Stegg: Tony, why do you continue to harass me? It’s pretty simple…finish your job…and get paid It’s a simple concept.. (Complainant’s Exhibit 3). 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 acts: …

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 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)(3). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(3) for Respondent’s failure to perform the work in a professional and workmanlike manner. Respondent contended that he did not abandon the contract because he removed the step lights from the contract. The email exchange of February 7, 2019, does show an attempt by Respondent to remove the step light trim from the contract, and Complainant’s possible acquiescence of that removal. However, whatever ambiguity that may have existed at that time as to whether Complainant had agreed to remove the step light trim from the contract was clarified in the February 21, 2019, text exchange when Complainant demanded that Respondent finish the job, which at that point, consisted only of the installation of the step light trim. Thus, Respondent’s assertion is unpersuasive that he never heard anything again from Complainant about the trim lights until this subject proceeding. Further, there is a dispute as to whether Complainant had the steps ready for Respondent’s installation of the step light trim in January 2019 when Respondent installed the other remaining trim in the residence. However, the Tribunal is persuaded that the steps were ready for such installation in February 2019. 7. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(22). Respondent’s argument is unavailing that his failure to receive the Directive is a valid justification for not correcting the work. The evidence established that the Directive was sent to his address of record with the Registrar; it is thus Respondent’s responsibility to forward his mail to his current address. 8. 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, Anthony Lee England’s License Number 059415 is suspended for two business days. IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.

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 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, August 5, 2019.

/s/ Roger Geddes Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal also took administrative notice of the Registrar’s document submissions 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