ALJDEC decisions subject to certification as final

2010A-101271884-ROC · Registrar of Contractors · 2010-05-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 6, 2010 at 1:00 p.m. APPEARANCES: The Defendant appeared on his own behalf. The Registrar of Contractors appeared by and through Assistant Attorney General, Keely Verstegen. ADMINISTRATIVE LAW JUDGE: M. Douglas

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

FINDINGS OF FACT

1. On March 2, 2010, Fay and Vern Lagergen filed a complaint against the Defendant alleging that the Defendant had contracted without a license. .

2. There was no dispute that on February 1, 2010, the Defendant contracted without a license with Fay and Vern Lagergen to build an enclosure in the Lagregren’s existing patio which required building permits for $540.00. 3. The Defendant admitted that, had materials costs been included in the construction agreement, the actual cost of the construction project would have exceeded the sum of $540.00, which was for labor only. 4. There was no dispute that the construction work at issue did require a permit from the local building authority. 5. There was no dispute that the Defendant was only paid $300.00 for his work at the Lagergen residence. 6. There was no dispute that on March 4, 2010, the assigned Agency Investigator conducted an interview with the Defendant and that, as a result of the interview, the assigned Agency Investigator issued the Defendant a Warning Letter and a Cease & Desist Order and Civil Citation No. 3770 in the sum of $1,500.00 for engaging in contracting without a license, a violation of A.R.S. § 32-1151. 7. The assigned Agency Investigator then gave the Defendant until May 4, 2010 to either pay the civil citation or obtain a contractor’s license from the Registrar of Contractors. 8. There was no dispute that the Defendant is not a licensed contractor and that the Defendant does not intend to become a licensed contractor. 9. The Defendant then requested an administrative hearing to contest the amount of the civil penalty assessed against him. 10. The Defendant’s May 1, 2010 statement (Exhibit No. D-2) provides as follows: I was not aware that contracting included materials also. They were purchased long before I arrived on the job. Had I known that the $1,000.00 included materials, I wouldn’t have even started the job…I have complied with the Cease and Desist Order and will NEVER be doing another contracting job within the State of Arizona. The stated contract amount on the Cease and Desist Order is only $540.00 of which I was only paid $300.00 by Vern and Fay Lagergen. Therefore, I request that this fine of $1,500.00 be reduced to -0- as this sort of situation will not happen again. 11. The Defendant’s ignorance of the state’s contracting laws and the relatively small amount of money that was actually paid to the Defendant are not found to be mitigating factors. 12. The undisputed fact that the Defendant is 73 years of age and that this is the Defendant’s first offence and the Defendant’s obvious remorse regarding this matter are found to be matters that may be considered in mitigation. 13. Credible testimony and evidence supports a finding that establishes that a reduction of the assessed civil penalty from $1,500.00 to $1,000.00 is appropriate and warranted in this matter.

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 testimony and evidence supported findings that establish that the Defendant violated the charged provisions of A.R.S. § 32-1151 (Contracting without a license). 3. A.R.S. § 32-1164 provides, in pertinent part, as follows: A. Commission by a contractor of any of the following acts is a Class 3 misdemeanor: 2. Acting in the capacity of a contractor within the meaning of this chapter without a license. B. For the first offense under subsection A of this chapter a contractor shall be fined not less than one thousand dollars. For the second or any subsequent offense under subsection A of this section, a contractor shall be fined not less than two thousand dollars.

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 $1,000.00, to be paid on or before the effective date of the Registrar’s Order, 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, May 11, 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