ALJDEC

00F-UF0259-ROC-res · Registrar of Contractors · 2000-05-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 30, 2000 APPEARANCES: The Defendant, Edward L. Blose, appeared pro se. The Registrar of Contractors was represented by Montgomery Lee, Assistant Attorney General, State of Arizona. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ Evidence and testimony were presented at the hearing and, based upon the entire record, the following Finding of Facts, Conclusions of Law, and Recommended Order are issued.

FINDINGS OF FACT 1. On February 28, 2000, a civil citation was issued to Edward L. Blose for violation of A.R.S ( 32-1151 (engaging in contracting without a license), a Class 1 misdemeanor pursuant to A.R.S ( 32-1164 (A) (2). The citation assessed a civil penalty against Mr. Blose in the amount of $200.00.

2. At all times material herein, Mr. Blose was not licensed by the Registrar of Contractors to perform contracting work, residential or commercial, within the state of Arizona. Defendant is a retired individual, not employed in full-time endeavors for which he is compensated.

3. On February 7, 2000, it was reported to the Registrar of Contractors, Investigation Unit in Flagstaff that Defendant had contracted with a Norris Rymer of Payson, Arizona to perform a landscaping project at Mr. Rymer’s residence in consideration for $700, the verbal agreement later ostensibly modified to $1200. Mr. Rymer did not testify at the hearing.

4. The undisputed evidence is that Defendant is not a licensed contractor and has no plans to obtain a license to do contracting work. Defendant stipulates that he had demanded payment in the amount of $1200. for labor and materials related to work performed by him and two assistants on the property. However, Defendant has not been paid any money for work performed on this project. While Mr. Rymer wrote a check to Defendant on February 4, 2000, he thereafter put a stop payment on the order.

5. Defendant stipulates that he engaged two men to assist him in the completion of the project. However, Defendant distinguishes employment from assistance as he has a history, the fact of which is supported by the testimony of two witnesses at the hearing, of securing “odd jobs” for those in need of work and those in the process of a life rehabilitation necessitated by abuses of one sort or another. Nevertheless, the record is clear that Defendant provided his two assistants with the implements of labor and the materials for the fulfillment of the task, as well as the oversight required for completion. A.R.S. ( 32-1151 provides that the employment of a person on a construction project is prima facie evidence of a contract having been concluded between the one who has employed the individual and the person or entity seeking to have the project performed.

6. Title 32 does not define what constitutes an employment relationship for purposes of this statute.

7. Defendant Blose has not previously been cited by the Registrar for a violation of ( 32-1151 or any other provision contained within the statute or rules.

8. A.R.S. ( 32-1121 (A) (14) excepts from licensing requirements undertakings wherein the contract price is less than $750. A.R.S. ( 32- 1158 (A) sets forth the minimum elements necessary to establish a contractual agreement for purposes of the chapter. A condition to enforceability is that the agreement be manifested by a writing. The ostensible contract at issue was not manifested by a writing, including the attempt at modification of the agreement which, it is presupposed, took the agreement out of the ( 32-1151 (A) (14) exemption.

9. The question whether a contractual agreement existed between Defendant and Mr. Rymer was addressed at the hearing, in part, through the offering by Respondent of hearsay evidence. While hearsay is admissible at an administrative hearing in Arizona, Begay v. Arizona Department of Economic Security, 626 P. 2d 137, 128 Ariz. 407 (Ariz. App. 1981), a qualitative analysis is required. The Administrative Law Judge will accord the evidence the weight which is its due. Based upon the evidence presented, uncertainty remains concerning whether the ostensible agreement was modified so as to sustain enforceability either from a common law or Title 32 perspective.

CONCLUSIONS OF LAW 1. The burden of proof generally at an administrative hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). 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, 654 (9th Cir. BAP (Ariz.) 1994). The evidence taken as a whole must convince the decision maker that the party who bears the burden, in this case the Registrar of Contractors, is more probably correct on the issue(s) in dispute.

2. The evidence of record sufficiently established that Defendant entered into an agreement to perform contractor (landscaping) services and intended to receive a consideration of $1200. for those services. Consequently, the Registrar’s issuance of the Citation, as well as a Cease and Desist Order, was fully supportable and justified.

3. Notwithstanding justification for the imposition of the civil penalty against this Defendant, factors of mitigation established at the hearing, including a lack of intent to evade statutory requirements, the legal uncertainty concerning whether the agreement arises to the level of that contemplated for enforcement under Title 32 and concerning which a party may be susceptible to penalty, and, incidentally, Defendant’s having been left to bear the cost of the project, let alone not be reimbursed therefor, warrants a waiver of the civil penalty in its entirety in accordance with the discretionary authority expressly afforded the Registrar under A.R.S ( 32-1166.07.

RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar of Contractors enter an Order confirming the finding of a violation by Edward L. Blose of the requirements of A.R.S ( 32-1151 as charged in the Citation; it is further recommended that the previously assessed civil penalty against Defendant be waived in its entirety.

Set forth this 5th day of June in the year 2000.

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater Attn: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826