ALJDEC decisions subject to certification as final

2019A-02543-NPC-ROC · Registrar of Contractors · 2019-10-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 18, 2019 APPEARANCES: Anthony Lee England on his own behalf; Jim Steg for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On July 5, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on August 19, 2019 at the Office of Administrative Hearings. The matter was continued and the hearing was conducted on September 18, 2019. 2. The Notice of Hearing shows that the hearing was being conducted on the charges made in the Citation and complaint. 3. Complainant is Anthony Lee England, d.b.a. England Electric. 4. Respondent, Steg Custom Homes Inc., holds License No. 225805 issued by ROC. James Steg is Respondent’s qualifying party and an officer in the corporation. 5. Mr. Steg, Anthony England, and Brian England testified at the hearing. 6. Complainant submitted to Respondent a proposal through which Complainant was to perform electrical work at a project referred to as the Miley residence. Under that proposal, Respondent was to pay Complainant 70% of the contract price upon completion of the “rough” work and the remaining 30% upon the completion of the trim work. 7. Respondent accepted the proposal on April 16, 2018. 8. The agreed upon price for the original scope of work was $23,469. Complainant completed the rough work and work related to a change order and Respondent paid to Complainant $18,978.30. 9. Subsequently, Complainant completed the trim work with the exception of installation of seven step lights. Complainant billed Respondent for the remaining 30% of the contract price ($7067.70) and took the position that it was unable to install the seven step lights because the stairs had not been installed. 10. Respondent filed a complaint with ROC alleging that Complainant had abandoned the project. An administrative hearing was conducted after which the Administrative Law Judge in that matter determined that Complainant had violated Ariz. Rev. Stat. section 32-1154(A)(3) because he had not installed the step lights; and that Complainant had violated subsection 32- 1154(A)(22) because he failed to install the step lights after ROC issued to Complainant a Directive ordering him to do so. ROC accepted the Administrative Law Judge’s Decision and suspended Complainant’s license for two days. 11. At the hearing in this matter, Complainant’s witness acknowledged that Complainant had not fully complied with the contract because he had not installed the seven step lights. Complainant takes the position that he should however be paid for the trim work that he did complete. 12. Mr. Steg testified that he was of the opinion that Complainant had completed about 90% of the work the parties’ contract called for. Mr. Steg would not provide any details as to how he arrived at that figure, and Complainant offered no evidence regarding his opinion as to what percentage of the work he had completed. 13. Mr. Steg testified that it was a matter of principle and that because Complainant did not fully complete the job, Respondent was not obligated under the contract to make any additional payment to Complainant. 14. Respondent has itself been paid for the work that Complainant performed. 15. Respondent hired another contractor to install the trim that Complainant did not install. CONCLUSIONS OF LAW 1. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 2. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). 3. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 4. Substantial evidence is evidence that a reasonable mind would use to reach a conclusion. See Mealey v. Arndt, 206 Ariz. 218, P.3d 892 (App. 2003). 5. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. Among the grounds for suspension or revocation of a contractor’s license is a “[f]ailure by [the] licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.” Ariz. Rev. Stat. § 32- 1154(A)(10). 9. By the terms of the contract that Complainant prepared, he was due to receive 30% of the contract amount when he completed the trim work. Because Complainant did not fully comply with the contract, he has not established by a preponderance of the evidence that Respondent violated Ariz. Rev. Stat. § 32- 1154(A)(10). Complainant may have an equitable claim to collect some or all of the $7067.70 for the trim work he did complete, but considering the record in this matter, any such claim would need to be resolved in a civil court of competent jurisdiction.

RECOMMENDED ORDER IT IS RECOMMENDED that case number 2019-02543 be dismissed. 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 is forty days after the date of that certification.

Done this day, October 7, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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