ALJDEC decisions subject to certification as final

2013A-1082-ROC · Registrar of Contractors · 2013-06-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 28, 2013

APPEARANCES: Respondent Gerardo A. Avila appeared on his own behalf; the State of Arizona, Registrar of Contractors, was represented by Assistant Attorney General Sarah Selzer and ROC Investigator John Panter.

WITNESSES: John Panter, ROC Investigator Gerardo Avila

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Respondent appeals a Civil Citation issued by the Arizona Registrar of Contractors (“ROC”) for operating unlawfully as an unlicensed contractor. The Citation imposes a fine of $1,500.00. Respondent appeared at hearing to defend the appeal. This tribunal entered the investigation file received from the Registrar of Contractors into the record, along with marked Exhibits 1 through 7 offered by the State. 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 Recommend Order finding a violation and recommending imposition of the $1,500.00 civil penalty. FINDINGS OF FACT 1. Respondent is not a licensed contractor. In January 2013, he performed a $7,000.00 backyard landscaping job that included approximately 1350 square feet of pavers, a barbecue, fire pit, and bench seating around the fire pit.[1] Respondent was paid $5,000.00 in cash toward the project.[2] A dispute about workmanship issues developed and Respondent was not paid the remainder of the contract price.[3] Respondent admitted to the ROC Investigator on February 27, 2013, that he performed the work and was paid $5,000.00.[4] He also stated he quit the job when the workmanship disputes could not be settled.[5] 2. The ROC issued a Cease & Desist Order and a Civil Citation for the unlicensed activity, imposing a civil penalty of $1,500.00.[6] Respondent requested a hearing.[7] 3. Arizona contracting law allows an exemption from licensure, with certain limitations, for a “handyman.”[8] At the start of the hearing, the exemption was read out loud on the record by the Administrative Law Judge and Respondent admitted that he did not qualify for the exemption. 4. Respondent talked in circles at the hearing, first stating that he admitted the violation and then seemingly denying the violation. When he finally settled on admission of the violation, he then stated that he disputed the imposition of the penalty. But, after he testified, it was clear that he did not have any substantive reason for disputing the penalty. 5. Respondent presented no real dispute to the Citation. CONCLUSIONS OF LAW 1. Arizona contracting law prohibits persons from acting as a contractor without a license.[9] The law allows an exemption from licensure, with certain limitations, for a “handyman.” An unlicensed handyman can perform construction work, excluding certain activities, as long as the aggregate price for the job does not exceed $1,000.00[10] The ROC can order a person who performs contracting without a license and who is not exempt from licensure to cease and desist such activity and may impose a civil penalty of at least $200.00 for each violation but not more than $2,500.00 per day.[11] 2. In this case, Respondent essentially admits to the violation. 3. The evidence shows a violation of the Arizona contracting laws. The amount of the civil penalty is supported by the fact that the job Respondent performed as an unlicensed contractor was extensive and well beyond the limit allowed in the statutory exemption. RECOMMENDED ORDER IT IS RECOMMENDED that the Registrar of Contractors impose a civil penalty of $1,500.00 against Gerardo A. Avila dba Arizona Backyard Creation & Design.

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 17, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibits 1 and 2. [2] Exhibits 1 and 4. [3] Exhibit 1. [4] Exhibit 4. [5] Id. [6] Exhibits 3 and 5.. [7] Exhibit 7. [8] See A.R.S. § 32-1121(A)(14). [9] A.R.S. § 32-1164(A)(2). [10] A.R.S. § 32-1121(A)(14). [11] 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