ALJDEC decisions subject to certification as final

2013A-4655-ROC · Registrar of Contractors · 2014-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 21, 2014, at 8:00 a.m. APPEARANCES: The Arizona Registrar of Contractors (“Registrar”) appeared through Seth T. Hargraves, Esq., Assistant Attorney General; Dominick John Cammarata, Sr. (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Procedural Background 1. On June 20, 2014, Investigator Alex Figueroa on behalf of the Registrar issued a Cease & Desist Order and Civil Citation against Respondent for advertising without a license in violation of A.R.S. § 32-1165, and assessed a $1,000.00 civil penalty as a consequence. The Cease & Desist Order and Civil Citation were personally delivered to Respondent at 8780 E. McKellips Rd. #192, Scottsdale, Arizona 85257.[1] 2. Respondent requested a hearing on the Civil Citation and assessment of civil penalty. 3. On August 18, 2014, the Registrar issued a Notice of Hearing, setting an evidentiary hearing on October 21, 2014, at 8:00 a.m. before the Office of Administrative Hearings (“OAH”), and independent state agency. The Registrar sent a copy of the Notice of Hearing to Respondent’s last known address, 8780 E. McKellips Rd. Lot 192, Scottsdale, Arizona 85257-4816. 4. A hearing was held on October 21, 2014. The Registrar submitted two exhibits and presented Investigator Figueroa’s testimony. 5. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed more than fifteen minutes to allow Respondent additional travel time and did not conclude until approximately 8:40 a.m., Respondent did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not dispute the Registrar’s evidence. Hearing Evidence 6. Investigator Figueroa testified that in 2013, the Registrar received multiple complaints that Respondent was placing advertisements on Craigslist to perform plumbing work without disclosing that he did not have a valid contractor’s license. 7. Investigator Figueroa testified that in the past, Respondent had been listed on five different licenses but that none of the licenses are presently in good standing. Investigator Figueroa testified that according to the Registrar’s records, Respondent is currently unlicensed. 8. Investigator Figueroa testified that the Registrar had prosecuted two prior unlicensed advertising complaints against Respondent that had resulted in Cease & Desist Orders and Civil Citations. Investigator Figueroa testified that the reports of those investigations indicated that Respondent claimed that someone else was impersonating him and placing advertisements on Craigslist for contracting services. 9. The Registrar submitted advertisements for plumbers from Craigslist between October 1, 2013, and October 28, 2013, that included the telephone number 480-226-3863, but did not include the disclaimer, “Not a licensed contractor.”[2] 10. The Registrar submitted advertisements from Craigslist dated May 19, 2014, that showed the telephone number 480-226-3863, stated “Valley Wide Plumber Lic/Bond,” “Dominick’s Plumbing & Drain Service,” and offered to perform various plumbing services, including repairing slab leaks, re-piping, replacing toilets, hot water heaters, garbage disposals, and dishwashers, and offering various discounts, including to seniors and the military.[3] 11. Investigator Figueroa testified that he reached out to the Department of Public Safety’s Criminal Information Research Unit to identify Respondent as the person connected to the telephone number in the Craigslist advertisements. Investigator Figueroa also obtained an address of 8780 E. McKellips Rd. Lot #192, Scottsdale, Arizona 85257 that was connected to the telephone number 480-226- 3863. Investigator Figueroa also obtained the address of 8107 E. Whitton Avenue, Scottsdale, Arizona that was connected to a telephone number on one of the earlier Craigslist advertisements. 12. On June 11, 2014, Investigator Figueroa called 480-226-3863 and posed as a potential customer looking for someone to perform plumbing work. Investigator Figueroa testified that Respondent confirmed that he had placed the advertisements and was available to perform various kinds of plumbing work.[4] 13. On June 11, 2014, Investigator Figueroa sent a letter to Respondent informing him that his unlicensed contracting activities had come to the attention of the Registrar and requesting that he contact Investigator Figueroa.[5] 14. Respondent did not contact Investigator Figueroa. Investigator Figueroa went to the address on E. McKellips Rd. but did not find Respondent. Investigator Figueroa went to the address on Whitton Avenue and spoke to Respondent’s son, Sergio, who said that he was estranged from his father, but that his father might still live at the address on E. McKellips Rd. 15. Investigator Figueroa eventually was able to contact Respondent at the telephone number 480-226-3863 from the Craigslist advertisements. After missing one scheduled appointment, on July 9, 2014, Respondent met with Investigator Figueroa at the Registrar’s office in Phoenix. Respondent’s appearance matched the driver’s license picture that Investigator Figueroa had obtained. 16. Investigator Figueroa testified that Respondent did not dispute that he had placed the advertisements on Craigslist that showed his telephone number, although he indicated that his son Sergio may have placed some of the other advertisements. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[6] 2. The Notice of Hearing that the Registrar mailed to Respondent at his address of record was reasonable and he is deemed to have received notice of the hearing.[7] 3. The Registrar bears the burden of proof to establish that Respondent engaged in advertising without a license by a preponderance of the evidence.[8] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[9] 4. The Registrar established that on May 19, 2014, Respondent was not licensed and that he placed an advertisement on Craigslist to offer to perform plumbing work. 5. A.R.S. § 32-1165 provides as follows: Except as authorized by section 32-1121, subsection A, paragraph 14, subdivision (c), it is a class 1 misdemeanor for any person to advertise that he is able to perform any service or contract for compensation subject to regulation by the registrar under the terms of this chapter unless a license under the terms of this chapter is first obtained regardless of whether his operations as a contractor are otherwise exempt.

A.R.S. § 32-1121(A)(14)(c) provides in relevant part as follows: This chapter shall not be construed to apply to: . . . .

14. Any person other than a licensed contractor engaging in any work or operation . . . for which the aggregate contract price, including labor, materials and all other items . . . is less than one thousand dollars. The work or operations that are exempt under this paragraph shall be of a casual or minor nature. This exemption does not apply: . . . .

(c) To a person who utilizes any form of advertising to the public in which the person's unlicensed status is not disclosed by including the words "not a licensed contractor" in the advertisement.

Respondent’s May 19, 2014 advertisement on Craigslist did not include the disclaimer, “Not a licensed contractor.” 6. A.R.S. § 32-1166 provides in relevant part as follows: A. In addition to all other remedies, when it appears to the registrar, either upon complaint or otherwise, that any person . . . has engaged in or is engaging in any act of contracting, practice or transaction which constitutes a violation of this chapter, . . . the registrar may serve upon such person. . . not currently licensed under this chapter, by certified mail or by personal service, a cease and desist order requiring the person . . . to cease and desist immediately, upon receipt of the notice, from engaging in such act, practice or transaction. In conjunction with the cease and desist order, the registrar may issue a citation for a violation. . . . Each citation shall contain an order to cease and desist and an assessment of a civil penalty in an amount of at least two hundred dollars for each violation but not more than two thousand five hundred dollars for the multiple violations committed on the same day. . . .

B. Each violation of this chapter or a rule or order of the registrar by a person who is required to be licensed by this chapter and who does not possess the required license shall constitute a separate offense, and the registrar may impose a civil penalty of not to exceed two thousand five hundred dollars for each violation except that for multiple violations committed on the same day the civil penalty shall not exceed two thousand five hundred dollars for all such violations. Monies collected from civil penalties shall be deposited in the state general fund.

C. The registrar of contractors may issue citations containing orders to cease and desist and of civil penalties against persons who have never been licensed under this chapter who are acting in the capacity of or engaging in the business of a contractor in this state.

The Registrar established that a $1,000.00 civil penalty is appropriate for Respondent’s May 19, 2014 advertisement that stated that he was able to perform plumbing work and that failed to disclose his unlicensed status. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order in this matter, the Registrar affirm the $1,000.00 civil penalty that it previously assessed against Respondent Dominick John Cammarata, Sr. 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 five days from the date of that certification. Done this day, November 4, 2014.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See the Registrar’s Exhibit 2. [2] See the Registrar’s Exhibit 1 at 7-22. [3] See id. at 23-25. [4] Inspector Figueroa summarized his telephone conversation with Respondent in investigative report. See id. at 3-4. [5] See id. at 26. [6] See A.R.S. § 32-1154(A). [7] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [8] See A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, Ariz. 369, 372, 249 P.2d 837 (1952). [9] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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