ALJDEC decisions subject to certification as final

2020A-03887-OMC-ROC · Registrar of Contractors · 2020-08-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Steven Wayne Langy

DBA: Sunscreen's and More Of Arizona

License No. 251947

RESPONDENT

No. 2020A-03887-OMC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 24, 2020

APPEARANCES: Assistant Attorney General John Tellier, Esq. appeared via Google Meet on behalf of the Arizona Registrar of Contractors (“Registrar”) with Chance Peterson, Cynthia Adams, Dennis Bierma, and Chris Fultz as witnesses. No appearance(s) by or on behalf of Steven Wayne Langy (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

Pursuant to Ariz. Admin. Code R4-9-117, Administrative Notice is taken of Respondent’s license file as shown on the Registrar’s public website as of August 24, 2020. According to the Registrar’s website, on January 15, 2009, Respondent was issued ROC License No 251947 for Specialty Dual CR-5 Sunscreens and Security Doors. The license was suspended effective August 13, 2020. Steven Wayne Langy is listed on the license as its Qualifying Party and Signor. Respondent’s address of record for the license is 20021 N. Cave Creek Rd., Suite 9, Phoenix, AZ 85024-0427. The license does not have an active surety bond. There are five open complaints against the license, which are presumed to be related to this matter. The license had been disciplined on three prior occasions.

On August 13, 2020, an Order of Summary Suspension, Order Consolidating Cases, and Notice of Promptly Instituted Proceeding was issued against Respondent after the Registrar received five complaints against Respondent’s licenses between May and July of 2020 alleging poor work and/or abandonment of contract. The Order set forth facts supporting the Registrar’s summary suspension regarding complaints received by the following homeowners: Eagle Tail VIllage (Case No. 2020-02483), Robert J. Marli (Case No. 2020-03658), Charles D. Oliver (Case No. 2020-03383), John V. Beeman (Case No. 2020-03645), and Craig Rhinehart (Case No. 2020-03520).

Upon investigation, the Registrar substantiated all five complaints regarding abandonment of contract and/or poor workmanship. Given the circumstances, the Registrar determined that the public health, safety, or welfare imperatively required emergency action under Ariz. Rev. Stat. § 41-1092.11(B).

The Registrar set the hearing for August 24, 2020, at 9:00 a.m. before the Office of Administrative Hearings (“OAH”), an independent state agency, located in Phoenix, Arizona. The Order was electronically mailed and mailed to Respondent’s address of record via certified mail. The correspondence was not returned by the United States Postal Service as refused or undeliverable.

In addition, on August 14, 2020, an Order from OAH was issued to the parties informing them that the hearing would be held via Google Meet. This notice was e-mailed and to the parties.

An evidentiary hearing was held per the Orders to determine whether cause existed to uphold the summary suspension of Respondent’s license, and whether grounds existed for the Registrar to revoke Respondent’s license based on the following alleged violations:

Charge 1: Abandonment of a Contract without Legal Excuse (Ariz. Rev. Stat. § 32-1154(A)(1)) – Three Counts

Charge 2: Minimum Workmanship Standards (Ariz. Rev. Stat. § 32-1154(A)(3) and Ariz. Admin. Code R4-9-108) – Four Counts

Charge 3: Failure to Take Corrective Action (Ariz. Rev. Stat. § 32-1154(A)(22) and Ariz. Admin. Code R4-9-108) – One Count

The Registrar was represented by Assistant Attorney General Jon Tellier, Esq., who submitted 20 exhibits and presented the testimonies of Registrar Investigators Cynthia Adams (“Investigator Adams”), Dennis Bierma (“Investigator Bierma”), and Chris Fultz (“Investigator Fultz”), as well as Chance Peterson Assistant Chief Counsel for the Registrar. The Registrar’s exhibits 1 through 20 were admitted into evidence and the Registrar’s agency record was also admitted as its own exhibit.

Although the start of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional time, Respondent did not appear on his own behalf, through an authorized officer, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed. Respondent did not request to appear telephonically, nor did Respondent request that the hearing be continued. Consequently, Respondent did not present any evidence to defend his license.

Hearing Evidence

Complaints

Eagle Tail Village (Case No. 2020-02483)

On or about May 18, 2020, Jo-Ann B. Wordell on behalf of Eagle Tail Village filed a complaint with the Registrar against Respondent, whereby she accused Respondent of abandonment of their April 15, 2020, contract to install screen doors on the property for the sum total of $1,470.00.

Investigator Adams was assigned by the Registrar to investigate the complaint. Investigator Adams then issued a Written Directive from the Registrar on June 23, 2020, advising Respondent that five doors which were ordered were never installed and Respondent should make necessary installation by appropriate means.

On August 7, 2020 a Citation was issued advising Respondent of two charges, violation of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).

According to the evidence and testimony, although Eagle Tail Village paid Respondent $1,470.00, Respondent did not complete the project. Respondent never issued a refund to Eagle Tail Village.

Robert J. Marli (Case No. 2020-03658)

On or about July 29, 2020, Mr. Marli filed a complaint with the Registrar against Respondent, whereby he accused Respondent of abandonment of their May 4, 2020 contract to install a sunscreen over the back patio at his home for the sum total of $1,650.00. Mr. Marli provided a down payment of $825.00.

Investigator Fultz was assigned by the Registrar to investigate Mr. Marli’s complaint. Investigator Fultz testified that he conducted a jobsite inspection on August 4, 2020, at 12:30 p.m. Respondent was not present. Investigator Fultz observed that the work was not completed and appeared to have been abandoned.

On August 7, 2020, a Citation was issued to Respondent advising Respondent of two charges, violation of A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(3).

According to the evidence and testimony, although Mr. Marli issued payment to Respondent in the amount of $825.00, Respondent did not complete the project. Respondent never issued issue a refund to Mr. Marli.

Charles D. Oliver (Case No. 2020-03383)

On or about July 14, 2020, Mr. Oliver filed a complaint with the Registrar against Respondent, whereby he accused Respondent of abandonment of their May 5, 2020 contract to install sunscreens at his home for the sum total of $1,592.50. Mr. Oliver provided a down payment of $796.25.

Mr. Peterson testified that upon his information and belief, that the job had been completed and that Mr. Oliver requested to close his complaint.

John V. Beeman (Case No. 2020-03645)

On or about July 28, 2020, Mr. Beeman filed a complaint with the Registrar against Respondent, whereby he accused Respondent of abandonment of their June 9, 2020 contract to install seven sunscreens at his home for the sum total of $385.00. Mr. Beeman provided a down payment of $200.00.

Investigator Bierma was assigned by the Registrar to investigate Mr. Beeman’s complaint. Investigator Bierma testified that he conducted a jobsite inspection on July 31, 2020, at 9:30 a.m. Respondent was not present. Investigator Bierma observed no evidence of work being started, let alone completed, on the project.

On August 5, 2020 Investigator Bierma then issued a Written Directive from the Registrar advising Respondent advising Respondent that screens were never installed and Respondent should make complete the project per the original contract.

According to the evidence and testimony, although the Mr. Beeman paid Respondent $200.00, Respondent did not complete the project and Respondent never issued issue a refund to Mr. Beeman.

Craig Rhinehart (Case No. 2020-03520)

On or about July 22, 2020, Mr. Rhinehart filed a complaint with the Registrar against Respondent, whereby he accused Respondent of abandonment of their June 20, 2020 contract to install 28 sunscreens as well as a screen door at his home for the sum total of $1,716.65. Mr. Oliver provided a down payment of $866.65.

Mr. Peterson testified that upon his information and belief that the job had been completed and that Mr. Rhinehart requested to close his complaint.

Mr. Peterson also testified that while two of the Complaints had been closed, an additional three new Complaints had been filed since the entry of the Summary Suspension.

CONCLUSIONS OF LAW

These matters lie within the Registrar’s jurisdiction, and was properly brought before OAH.

The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The summarily suspended status of Respondent’s licenses does not deprive the Registrar of its ability to prosecute these complaints or prevent the Registrar from determining the merits of these complaints.

The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable. Neither the Notice of Hearing nor the Order Re: Google Meet sent to Respondent were returned as undeliverable. Thus, Respondent is deemed to have received notice of the scheduled proceedings.

The Registrar bears the burden of proof to establish grounds for suspension or revocation of Respondent’s contractor’s license by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

Ariz. Rev. Stat. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.”

Ariz. Rev. Stat. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, in part, “[f]ailure to take appropriate corrective action.”

Ariz. Admin. Code R4-9-108(A) states that “[a] contractor shall perform all work in a professional and workmanlike manner.”

Ariz. Rev. Stat. § 41-1092.11(B) provides, in pertinent part, that if an “[a]gency finds that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, the agency may order summary suspension of a license pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.”

The evidence in this matter is undisputed.

The record reflects that Respondent contracted with Eagle Tail Village, Mr. Marli, Mr. Oliver, Mr. Beeman, and Mr. Rhinehart, for sunscreen and screen door installation projects and Complainants tendered payments for Respondent’s services and/or materials. Respondent failed to complete three of the projects.

Therefore, the Registrar established violations of Ariz. Rev. Stat. §§ 32-1154(A)(1), 32-1154(A)(3), namely Ariz. Admin. Code R4-9-108, and 32-1154(A)(22).

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to timely and completely finish Complainants’ projects per their respective agreements. These are affirmative defenses that Respondent bears the burden to establish. In failing to appear for the duly noticed hearing, Respondent failed to provide evidence in mitigation, refute the Registrar’s evidence, or justify his inaction in this matter. Thus, his burden has not been sustained.

Respondent’s pattern of taking payments on new contracts, while failing to fulfill existing contracts, jeopardizes public safety and welfare. Additionally, Respondent’s absence from an administrative hearing regarding his license is a factor in aggravation, and confirms that at this time Respondent cannot be regulated by the Registrar. Notably, the tribunal is particularly troubled by the fact that Respondent accepted nearly $4,200.00 in payments from the victimized Complainants. Because Respondent failed to appear, no evidence was offered to establish an affirmative defense to the above-captioned conduct.

Therefore, based on the record, the Registrar has established more than ample cause to summarily suspend Respondent’s license under Ariz. Rev. Stat. § 41-1092.11(B).

The tribunal holds that revocation of Respondent’s contracting license pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(1); 32-1154(A)(3) namely Ariz. Admin. Code R4-9-108; and 32-1154(A)(22); is appropriate and in the best interest of the public.

RECOMMENDED ORDER

In light of the foregoing,

IT IS RECOMMENDED that the Registrar’s Order of Summary Suspension of Respondent License No. 251947, as issued on August 13, 2020, be affirmed.

IT IS FURTHER RECOMMENDED that on the effective date of the Final Order in this matter, Respondent License No. 251947 shall be revoked by the Registrar.

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 40 days from the date of that certification.

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-137160-45720000Done this day, August 27, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000