ALJDEC decisions subject to certification as final

2013A-5082-ROC · Registrar of Contractors · 2014-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 8 and 16, 2014

APPEARANCES: Respondent Brian Vaught appeared on his own behalf by telephone; the State of Arizona, Registrar of Contractors, was represented by Assistant Attorney General Seth Hargraves and ROC Investigator James Vildusea.

WITNESSES: James Vildusea, ROC Investigator Brian Vaught

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Respondent appeals a Civil Citation & Cease and Desist Order issued by the Arizona Registrar of Contractors (“ROC”) for advertising unlawfully as an unlicensed contractor. The Citation imposes a civil penalty of $1,500.00. Respondent appeared at hearing to defend his appeal. This tribunal entered marked Exhibits 1 through 4 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 a $500.00 civil penalty. FINDINGS OF FACT 1. Respondent is not a licensed contractor. On October 23, 2013, the ROC received an anonymous complaint about Respondent with accompanying copies of a Benson/Willcox telephone book advertisement and a business card.[1] 2. The telephone book advertisement is for Cochise Well & Pump, stating “50 Years Experience,” advertising for pump repair and well drilling, and providing a telephone number that matches Respondent’s. There is no indication that Cochise Well & Pump is not a licensed contractor. The business card displays similar information. 3. The ROC investigated the complaint and concluded that Respondent was not licensed at that time and had advertised as a contractor without a license.[2] 4. The ROC issued a Cease & Desist Order and a Civil Citation for the unlicensed activity, imposing a civil penalty of $1,500.00.[3] Respondent requested a hearing.[4] 5. At hearing, Respondent testified that he and his son placed the advertisement when they were attempting to start a business that his son was going to get a contracting license for. Due to personal events, that business never got off the ground, but the advertisement remained. Respondent testified that he is 70 years old and retired. He does not intend to work as a contractor and has a serious illness along with other health problems. He could not travel to the hearing site due to his health. 6. There is no evidence that Respondent gave the business card to anyone. He denied that he did in his testimony. He admitted that the advertisement was his and stated that he did not know the requirements for advertising. Based on his health issues and age, he requested mercy from the ROC. 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.” One of the limitations is that no single project can be more than $1,000.00.[6] An unlicensed handyman can advertise services as long as the ad includes the words “not a licensed contractor.”[7] 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.[8] 2. In this case, Respondent’s advertisement did not comply with the law. In addition, the work that Respondent is describing in the advertisement does not appear to be handyman-type work, but rather work that only a licensed contractor is allowed to perform. The evidence does not show a violation with regard to the business card. 3. The evidence shows a violation of the Arizona contracting laws. However, there is a substantial amount of mitigation evidence as well. Therefore, any civil penalty should not be the maximum or even a high amount. RECOMMENDED ORDER IT IS RECOMMENDED that the Registrar of Contractors affirm the Cease & Desist Order and Civil Citation and impose a civil penalty of $500.00 against Brian Clar Vaught.

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, May 6, 2014.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 1. [2] Exhibit 2. [3] Exhibit 3.. [4] Exhibit 4. [5] A.R.S. § 32-1165. [6] A.R.S. § 32-1121(A)(14)(b). [7] A.R.S. § 32-1121(A)(14)(c). [8] 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