ALJDEC decisions subject to certification as final

2014A-11-ROC · Registrar of Contractors · 2014-06-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 9, 2014

APPEARANCES: Respondent David Sams appeared on his own behalf; the State of Arizona, Registrar of Contractors, was represented by Assistant Attorney General Seth Hargraves.

WITNESSES: Alex Figueroa, ROC Investigator David Sams

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Respondent appeals a Civil Penalty Citation issued by the Arizona Registrar of Contractors (“ROC”) for operating unlawfully as an unlicensed contractor. The Citation imposes a civil penalty of $1,500.00. Respondent appeared at hearing to argue the amount of the penalty; he did not deny the unlicensed contracting charge. This tribunal entered marked Exhibits 1 through 9 offered by the ROC, and Exhibit A from Respondent. 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 $1,500.00 civil penalty. FINDINGS OF FACT 1. Respondent is not a licensed contractor.[1] In August 2013, he entered into a contract with a homeowner, Christopher George, to build him a ramada at a cost of $10,000.00.[2] Mr. George paid Respondent over $7,000.00 for the work before there were problems with the project.[3] Respondent was fired and sued Mr. George for the remaining balance. Mr. George countersued and filed a complaint with the ROC.[4] 2. Alex Figueroa investigated the complaint and confirmed that Respondent was unlicensed, had done the work, and had accepted payment from Mr. George.[5] He concluded that Respondent had performed unlicensed contracting. 3. The ROC issued a Cease & Desist Order and a Civil Citation to Respondent for the unlicensed activity, imposing a civil penalty of $1,500.00.[6] Respondent requested a hearing. 4. At hearing, Respondent testified about his financial hardship as the reason for a reduced penalty. He offered into evidence, as Exhibit A, a “To Whom It May Concern” letter he wrote as part of a recent loan application. It describes financial difficulties, but is not supported by underlying documentation that was made part of the record before this tribunal. In any event, Respondent’s hardships are not a reason to impose a lower penalty, for the reasons stated below. 5. The evidence shows that Respondent operated as a contractor without a license by entering into an agreement with Mr. George for construction work for $10,000.00, that Respondent was paid over $7,000.00 for the work, and that Respondent was fired from the job by Mr. George once problems arose and it was discovered that Respondent was not licensed. CONCLUSIONS OF LAW 1. Arizona contracting law prohibits persons from acting as a contractor without a license.[7] 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[8] 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 and up to $2,500.00 for each violation but not more than $2,500.00 per day.[9] 2. In this case, Respondent did not deny the allegations and the evidence supports them. 3. The evidence shows a violation of Arizona contracting laws. Thus, a civil penalty is warranted. 4. Respondent claims that financial hardship should call for a reduced penalty. However, the more important factor here is the nature of the violation. Respondent was aware or should have been aware of the law regarding unlicensed contracting, since he is a former licensee. Furthermore, Respondent had a license that was revoked, yet he continued to work without the license. This is a reason to enhance the penalty, not reduce it. 5. The Administrative Law Judge finds that Respondent has violated Arizona law and that the amount of the penalty is supported by the evidence. RECOMMENDED ORDER IT IS RECOMMENDED that the Registrar of Contractors impose a civil penalty of $1,500.00 against David E. Sams.

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 30, 2014.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] According to the ROC public website on June 27, 2014, Respondent was the sole member of Southwest Ramadas, LLC, which held a license with the ROC from 2001 until it was revoked in 2011. [2] Exhibit 1. [3] Id. [4] Id. [5] Exhibit 2. [6] Exhibit 7. [7] A.R.S. § 32-1164(A)(2). [8] A.R.S. § 32-1121(A)(14). [9] A.R.S. § 32-1166(A).

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