ALJDEC decisions subject to certification as final

2010A-100517277-ROC · Registrar of Contractors · 2010-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 29, 2010 at 10:00 a.m. APPEARANCES: The Registrar of Contractors appeared by and through Assistant Attorney General, Jeanne Galvin. The Defendant appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence was presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. There was no dispute that on 12-16-09 the local office of the Registrar of Contractors received an anonymous call about the Defendant allegedly performing unlicensed painting work on a residence in Lake Havasu City, Arizona. 2. There was no dispute that on 12-17-09 Mary Jo R., of D R Custom Painting Inc. complained about the Defendant painting a house at 2075 Mimosa Drive in Lake Havasu City, Arizona. Ms. R. said that she was unable to find a contractor’s license for McNally Home Improvement and that she knows the aggregate cost of the job exceeds $1,000.00, as she bid the job at $2,350.00. 3. The assigned Agency Investigator then investigated the complaint and conducted an interview with the Defendant. 4. There was no dispute that the Defendant was not a licensed contractor at that time and that he had contracted with a property owner, Mr. Steve B. on 12-03-09 to perform exterior painting work and to perform minor electrical work at 2075 Mimosa Drive in Lake Havasu City. 5. There was no dispute that the Defendant issued the homeowner an $800.00 written proposal for the Defendant’s portion of the work. 6. There was no dispute that the Defendant failed to disclose his unlicensed status on the written proposal given to the homeowner. 7. There was no dispute that the Defendant then entered into subcontract with a licensed stucco contractor for the performance of stucco work on the same residence. 8. There was no dispute that the licensed stucco contractor gave both the Defendant and the homeowner written proposals to perform the requested stucco work for the sum of $1,175.00. 9. There was no dispute that the aggregate cost of the construction project was the sum of $1,975.00. 10. There was no dispute that the homeowner paid the Defendant the sum of $1,975.00 and that the Defendant retained $800.00 for his own work and paid $1,175.00 to the licensed stucco subcontractor. 11. There was no dispute that on January 4, 2010 the assigned Agency Investigator issued a Warning Letter to the Defendant. 12. There was no dispute that on January 4, 2010 the assigned Agency Investigator issued a Cease & Desist Order to the Defendant for contracting without a License to the Defendant. 13. There was no dispute that on January 4, 2010 the assigned Agency Investigator issued a Cease & Desist Order to the Defendant for advertising for contracting services without being licensed. 14. There was no dispute that the assigned Agency Investigator then issued a civil penalty against the Defendant in the total sum of $2,500.00 for the Defendant’s unlawful conduct determined by the investigation. 15. There was no dispute that the Defendant then applied for and received a contractor’s license from the Registrar of Contractors. 16. The Defendant’s prompt action in obtaining the required contractor’s license is to be commended. 17. The Defendant then requested an administrative hearing for this matter in the hopes of obtaining a reduction in the civil penalty assessed by the assigned Agency Inspector. 18. There was no dispute that a reduction of the assessed civil penalty is appropriate and warranted in this matter because of the Defendant’s actions in promptly applying for, and obtaining, a contractor’s license.

CONCLUSIONS OF LAW

1. This hearing was held under the authority of and pursuant to A.R.S. § 32- 1156 and A.R.S. § 41-1092. 2. Credible evidence supported findings that establish that the Defendant violated the charged provisions of A.R.S. § 32-1151 (Contracting without a license). 3. Credible evidence supported findings that establish that the Defendant violated the charged provisions of A.R.S. § 32.-1165 (Advertising for contracting services without a license). 4. A.R.S. § 32-1166.07 provides as follows: Notwithstanding any other law, the registrar may waive all, except two hundred dollars, of the civil penalty if the person against whom the civil penalty is assessed completes all of the requirements for, and is issued, a contractor’s license.

RECOMMENDed order

In view of the foregoing, it is recommended that the Registrar reduce the civil penalty assessed against the Defendant to the sum of $200.00 and affirm the civil citation against the Defendant. 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 40 days from the date of the certification. Done this day, April 29, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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