ALJDEC decisions subject to certification as final

2011A-1163-ROC · Registrar of Contractors · 2011-06-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 16, 2011

APPEARANCES: Respondent Hector Molina Garcia appeared on his own behalf, accompanied by his brother-in-law Miguel Gonzalez and assisted by Spanish-language interpreter Sylvia Gallegos; the State of Arizona, Registrar of Contractors, was represented by Assistant Attorney General Montgomery Lee and Investigator Mike Foster.

WITNESSES: Hector Garcia Mike Foster, ROC Investigator Miguel Gonzalez

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Respondent appeals a Civil Citation issued by the Arizona Registrar of Contractors (“ROC”) for improper advertising as an unlicensed contractor. The Citation imposes a fine of $1,500.00. Respondent denies the violation. This tribunal entered the investigation file received from the Registrar of Contractors into the record, along with marked Exhibits 1, 2, 3, and 4. The parties presented evidence and testimony from the witnesses listed above. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding a violation and recommending upholding the $1,500.00 civil penalty. FINDINGS OF FACT 1. Respondent lives in the Yuma, Arizona area. On February 25, 2011, Investigator Mike Foster found a business card posted at a gas station in Yuma which stated “Hector’s Construction,” “Mexican Brick & Block,” “Iron Work,” “Ceramic Tile,” and “Concrete.” The card also printed the telephone number “(928) 580-3426.” The card did not show a license number or the words “not a licensed contractor.”[1] 2. Arizona contracting law allows an exemption from licensure, with certain limitations, for a “handyman.” An unlicensed handyman can advertise services as long as the ad includes the words “not a licensed contractor.”[2] 3. Foster searched the ROC database and could not find a licensed contractor with the name “Hector’s Construction.” However, the telephone number was linked to a prior case against Respondent in which a Cease and Desist Order was issued in November 2009 for improper advertising without a license. That case had been based on a different but similar business card that was posted at the same location.[3] Foster also found that the telephone number, listed on both the old and new business cards, belonged to Respondent. 4. Foster interviewed Respondent on March 2, 2011. According to Foster’s report and testimony at hearing, Respondent agreed that the card was his, but stated that he did not post it. 5. The ROC issued a Civil Citation for the improper advertisement, imposing a civil penalty of $1,500.00.[4] Respondent requested a hearing. 6. Respondent testified at hearing that someone else posted the card in order to get him in trouble. Miguel Gonzalez, Respondent’s brother-in- law, also testified that someone was trying to get Respondent in trouble. The allegations against others by Respondent and Gonzalez were vague and confusing. No corroborating evidence was presented in support of Respondent’s defense that someone else posted the card. This tribunal finds no other reasonable explanation, supported by competent and adequate evidence, for the posting of the card other than to bring Respondent contracting business. Therefore, based on the circumstantial evidence presented, this tribunal finds that the card was posted by Respondent or by someone on his behalf. CONCLUSIONS OF LAW 1. Arizona contracting law prohibits persons from advertising as a contractor without a license.[5] The law allows an exemption from licensure, with certain limitations, for a “handyman.” An unlicensed handyman can advertise services as long as the ad includes the words “not a licensed contractor.”[6] The ROC can order a person who violates the advertising provisions to cease and desist such activity and may impose a civil penalty of at least $200 for each violation but not more than $2500 per day.[7] 2. In this case, Respondent’s business card did not comply with the law. Although the card found by Foster in February 2011 stated “Hector’s Construction” and did not display Respondent’s full name, it did display Respondent’s telephone number. This is adequate evidence to link Respondent to the card and hold him responsible for posting it. There is no reasonable explanation, on the evidence presented, for why the card would be posted other than to bring Respondent contracting work. 3. The evidence shows a violation of the Arizona contracting laws. The amount of the civil penalty is supported by the fact that this is Respondent’s second violation in a little over one year’s time. RECOMMENDED ORDER IT IS RECOMMENDED that the Registrar of Contractors impose a civil penalty of $1500.00 against Hector Molina Garcia dba Hector’s Construction.

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.

Done this day, June 2, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibits 2 and 3. [2] See Arizona Revised Statutes (A.R.S.) § 32-1121(A)(14)(c). [3] Exhibits 1 and 4. [4] Exhibit 3. [5] Arizona Revised Statutes (A.R.S.) § 32-1165. [6] A.R.S. § 32-1121(A)(14)(c). [7] A.R.S. § 32-1166(A).

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