ALJDEC

00F-UL0023-ROC · Registrar of Contractors · 2000-03-03

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 3, 2000.

APPEARANCES: The Defendant, Richard Moore, appeared in his own behalf.

The Registrar of Contractors was represented by Assistant Attorney General, Montgomery Lee, Esq.

ADMINISTRATIVE LAW JUDGE: Robert I. Worth _____________________________________________________________________

Evidence and testimony were presented, and based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made.

FINDINGS OF FACT

1. At all times material herein, Richard Moore did not and still does not possess a valid Arizona contractor’s license.

2. It was not effectively disputed that, in response to an inquiry from a potential customer from Parker, Arizona to Defendant’s Phoenix offices, on or about August 19, 1999, Defendant agreed to and did perform work on a residential jobsite in Parker,

Arizona. Such work consisted of the installation of a free-standing heater for a spa as well as the relocating of the spa’s equipment and the extending of the plumbing pipes to a new position approximately 40 feet away.

3. The quoted and charged amount for the above-described work, including all labor and materials, was $1,497.36, all of which was paid to Defendant by the property owner. This amount significantly exceeds the maximum statutory sum that may properly qualify under the handyman exemption provisions of the State’s contracting laws.

4. The bidding and performing of the above-described nature, extent and cost of the jobsite work by an unlicensed individual or entity is determined to have been impermissible and contrary to express provisions set forth in the State’s contracting laws.

5. The individual representative of the Defendant’s business entity was shown to have presented a printed business card at the time of the visit, serving to identify such

representative as an employee, and further to identify the company as a Jacuzzi authorized service representative. Defendant also had authorized and arranged for its listing in the telephone directory which appears under a spa repair category. Defendant’s unlicensed status was not expressly disclosed either on the business card or in the directory listing. Both the business cards and the telephone directory listing are found to have constituted forms of advertising.

6. The Registrar’s assigned Investigator, after evaluating a complaint filed by the property owner, issued a Cease and Desist Order to Defendant and also served notice that a civil penalty Citation would be issued requiring the payment by Defendant of

$500.00 for unlicensed contracting and another $500.00 for improper advertising. A timely request for the instant hearing was filed by Defendant by way of seeking review of the propriety and amount of the proposed civil penalties that were in the combined amount of $1,000.00.

7. It is found and determined under all the evidence presented at the administrative hearing that the bidding and performing of the actions undertaken and completed by Defendant required a valid contractor’s license, admittedly not possessed by Defendant. Additionally, the use of a business card by Defendant, through its representative is further found to have constituted a form of impermissible advertising, since neither had disclosed Defendant’s unlicensed status.

8. The monetary amount of the assessed civil penalties for impermissible contracting and advertising were, in each instance, somewhat above the statutory minimum and significantly below the specified statutory maximum. It is held that the proposed combined total of civil penalty amounts is not unreasonable or unwarranted under all the circumstances.

CONCLUSIONS OF LAW

1. A specific exemption from licensure is available for individuals or entities engaged in construction-related activities that (a) are less than $750.00 in combined charges or proposed charges for all labor plus materials, (b) are not part of a larger project, and (c) do not require a local building permit. Additionally, any and all forms of advertising by the unlicensed person must include an affirmative statement disclosing that such person is “unlicensed” or “not licensed.” See A.R.S. §32-1121(A)(14).

2. The testimonial and documentary evidence of record as to the nature and size of the construction-related work on the Parker project, bid and performed by Defendant, adequately established that Defendant had violated the provisions contained both in A.R.S. §32-1151 prohibiting unlicensed contracting activities and in A.R.S. §32-1165 relating to impermissible advertising by persons without a valid license.

3. The Registrar of Contractors is empowered pursuant to A.R.S. §32- 1166(A) to impose monetary civil penalties against individuals or entities proven to be in violation of the statutory prohibitions against unlicensed contracting and/or advertising in amounts ranging from $200.00 to $2,500.00 for each violation and for each day that such violation continues.

4. The dollar amount imposed by the Registrar and sought herein to be confirmed does not appear to be inappropriate, excessive or otherwise unwarranted.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Registrar’s previously issued Cease and Desist Order, as well as the Citation assessing a $1,000.00 civil penalty against the Defendant, Richard Moore, doing business as Richard Moore and Associates be affirmed in its entirety

Dated: March 13, 2000. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Michael Goldwater, Director Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007

ATTN: Griselda Ybarra -----------------------

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