ALJDEC decisions subject to certification as final

2013A-1387-ROC · Registrar of Contractors · 2013-10-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 20, 2013

APPEARANCES: Respondent Rudolfo Salome Montes De Oca appeared on his own behalf and was represented by attorney Thomas A. Gorman, Esq.; the State of Arizona, Registrar of Contractors, was represented by Assistant Attorney General Michael Raine and ROC Investigator Joseph Shikany.

WITNESSES: Joseph Shikany, ROC Investigator

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 civil penalty of $2,500.00. Respondent appeared at hearing to defend his appeal. This tribunal entered the investigation file received from the Registrar of Contractors into the record, along with marked Exhibits 1, 2, 5, and 6 submitted by the ROC and Exhibit A submitted by Respondent. ROC Investigator Joseph Shikany was the sole witness. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommend Order finding that the evidence is not sufficient to support the Citation. FINDINGS OF FACT 1. Respondent is not a licensed contractor. On March 25, 2013, the ROC received an anonymous tip on its “hotline.”[1] The maker of the tip is anonymous, nothing is known about the person. The tip stated that Respondent and his brother were painting a home in Sedona, working in the evening and on weekends. The tip gave an address for the jobsite. 2. The next day, ROC Inspector Joseph Shikany (“Shikany”) went to the address during working hours. It was a home under construction. The following is Shikany’s written account of what happened, made shortly after it occurred: As I approached the residence, I saw two males in the front courtyard. One of the Males I knew as Rudy Montes De Oca [Respondent], the other, I learned was Thomas Moore, a licensed contractor. As I approached Rudy, and Mr. Moore, Mr. Moore said, “I bet you want to talk to him,” and pointed at Rudy. I asked Rudy if his brother was on site, he said, “No.” I asked Rudy if he was painting this home for Moore Builders, Mr. Moore’s company. Rudy said, “Yes.” I told Rudy that he had already been warned about Contracting without a license in November of 2012. I told Rudy that being that this was a new home construction, and a building permit was on file he needed to be a licensed contractor to paint it. . . .[2]

At hearing, Shikany was asked questions about why he believed that Respondent had done painting work at the site. He stated that the only basis was Respondent’s answer to the question he asked. When asked what Respondent’s demeanor was when he answered the question, Shikany testified that it was “casual” and that Respondent did not seem “uptight” but was “very casual.”[3] There is no indication that Respondent, or anyone else, was doing painting work on the site at the time Shikany was present. 3. The ROC called only Shikany as a witness at hearing. Respondent did not testify. CONCLUSIONS OF LAW 1. Arizona contracting law prohibits persons from acting as a contractor without a license.[4] The ROC can issue a Citation that imposes civil penalties on those who contract without a license.[5] 2. The burden of proof at an administrative hearing is generally upon a complainant or the party alleging wrongdoing, which in this case is the ROC.[6] Further, the standard of proof at hearing is by preponderance of the evidence.[7] “Preponderance of evidence” means that the existence of a contested fact is more probable than its nonexistence.[8] Therefore, The ROC bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation.[9] The ROC has failed to meet that burden. 3. Here, the bare evidence of an incriminating question that is not documented verbatim in the record and the single word answer without follow up or any other corroborating evidence is not sufficient to rise to the level of a preponderance of evidence. 4. Without a doubt, there is suspicion of unlicensed activity under the circumstances presented. But reasonable suspicion is not the level of certainty that meets the preponderance of evidence standard. There must be more than suspicion to have the level of certainty signified by a preponderance of evidence. With the facts presented here, there is no other indication that unlicensed activity was occurring under the auspices of a licensed contractor (Mr. Moore). No one observed painting at the site. Mr. Moore was not asked to corroborate Respondent’s alleged activity. And Respondent’s demeanor did not indicate that he had been caught doing anything wrong. In sum, the evidence does not indicate that Respondent had actually done any painting at the house or that he believed he was doing anything wrong, which is not consistent with the warning he had received in November 2012. 5. Furthermore, the anonymous tip cannot function as corroboration. First of all, there is no indication as to who gave the tip, so the credibility of it is left to whether the contents of it were confirmed. The ROC did observe Respondent on the site in the evening or on the weekend, which is when the tip stated that the painting work was being performed. Indeed, there is no evidence that painting actually had occurred, by anyone, at the jobsite. Furthermore, Respondent’s brother was not apparently involved and was not asked about the tip against him. No Cease and Desist Order was issued to Respondent’s brother for the alleged painting activity. Therefore, the details of the tip were not confirmed by the inspection. If they had been, that would have corroborated the Respondent’s alleged confession. 6. By statutory definition, a contractor is: synonymous with the term "builder" and means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that, for compensation, undertakes to or offers to undertake to, purports to have the capacity to undertake to, submits a bid or responds to a request for qualification or a request for proposals for construction services to, does himself or by or through others, or directly or indirectly supervises others to:

(a) Construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or any other structure or work in connection with the construction.

(b) Connect such structure or improvements to utility service lines and metering devices and the sewer line.

There is no evidence that compensation was involved in whatever Respondent was doing on the site. Furthermore, there is no evidence that Respondent submitted a bid or responded to request for a bid. 7. The sole evidence upon which the allegation of unlicensed contracting is based in Respondent’s positive response to a question about whether he was painting the house. No other evidence is supports the allegation or is consistent with the allegation. Respondent was not painting the house while he was observed and did not appear to be painting the house. Neither does the evidence show that the house was actually painted. It is just as likely that Respondent was present at the jobsite seeking employment with Mr. Moore as a painter in order to paint the house at a later time. 8. The Administrative Law Judge concludes that there is not sufficient evidence to corroborate that Respondent admitted to contracting without a license when he was asked a single question by the ROC Investigator on March 26, 2013. Respondent’s reported “Yes” to an important question of which the phrasing is not known is simply not enough to support finding a preponderance of evidence that Respondent was acting as a contractor without a license. RECOMMENDED ORDER IT IS RECOMMENDED that the Registrar of Contractors grant the appeal and vacate the Citation issued to Rudolfo Salome Montes De Oca in this matter.

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, October 10, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 1. [2] Id. [3] 9/20/2013 Hearing Record at 2:10:37 to 2:10:47. [4] A.R.S. § 32-1164(A)(2). [5] A.R.S. § 32-1166(A). [6] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [7] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [8] In Re Maricopa County Juvenile Action No. J-84984, 138 Ariz. 282; 284, 674 P.2d 836, 838 (1983). [9] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [10] A.R.S. § 32-1101(A)(3).

-----------------------

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