ALJDEC decisions subject to certification as final

2014A-2450-CPA-ROC · Registrar of Contractors · 2021-01-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Jeremy Lee Frederick,

RESPONDENT

No. 2014A-2450-CPA-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 29, 2020

APPEARANCES: John Tellier, Esq. for Complainant; no one appeared for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On November 27, 2020, the Registrar of Contractors (“ROC”) issued a Notice of Unlicensed Hearing setting the above-captioned matter for hearing at 9:00 a.m. December 29, 2020 at the Office of Administrative Hearings in Phoenix, Arizona.

No representative appeared for Respondent Jeremy Lee Frederick and the matter was convened in his absence at about 9:15 a.m.

ROC presented the testimony of Daniel Rhodes, one of its investigators.

Mr. Frederick is affiliated with Worldly Plumbing LLC. Neither Mr. Frederick nor Worldly Plumbing is licensed by ROC.

On July 24, 2014, ROC sent to Mr. Frederick via certified mail a Cease and Desist Order and Civil Citation (the “Citation”) charging him with five violations of Ariz. Rev. Stat. section 32-1165, advertising without a license.

The Citation shows that on or about June 2, 2013, and May 11, May 12, May 24 and June 2, 2014, Mr. Frederick placed five different advertisements for Worldly Plumbing on the Yuma Craigslist Skilled Labor page.

Through the Citation ROC assessed a civil penalty of $1500 for each violation.

The Citation was sent by certified mail to an address Mr. Frederick had posted on Angie’s List as June 19, 2014.

On July 31, 2014, the Citation was returned to ROC showing that the address was vacant. ROC’s Investigation Notes (Exhibit 2) show that the assigned investigator, Cort Bacon, planned to send the Citation to an address Worldly Plumbing had listed on its Better Business Bureau website.

Mr. Bacon’s notes show that on August 4, 2014, the Citation was returned to ROC undelivered. Mr. Bacon made the following entry in the case notes: “The Cease and Desist was returned undelivered and unserved. This case is being closed as undelivered/not served due to the 90 day jurisdiction has expired. Similar complaints against this contractor are now being pursued in new separate ROC case 2014-4218.”

Through a letter dated October 19, 2020, Mr. Frederick requested a hearing on Case No. 2014/2450.

There was no evidence adduced as to what events occurred between Mr. Bacon’s last entry in August 2014 and Mr. Frederick’s October 2020 hearing request.

There was no evidence adduced as to the outcome of ROC’s case number 2014-4218 against Mr. Frederick.

Mr. Frederick’s request for hearing shows his address as 1155 West 23rd Street, Suite 6A, Tempe Arizona, 85282. ROC’s Notice of Hearing shows that it was sent to Mr. Frederick at “6838 W Willetta St., Scottsdale, AZ 85257.” ROC’s administrative record shows that mail to the West Willetta Street address was returned to ROC as undeliverable.

At the hearing, ROC had entered into evidence the five Craigslist pages at issue, and pages downloaded from Angie’s List and Worldly Plumbing’s website.

The Yuma Craigslist pages were all printed on June 10, 2014. The page in evidence as Exhibit 7 shows it had been created eight days prior to its printing; Exhibit 8 had been created 24 hours before it was printed; Exhibit 9 had been created 29 days before printing and updated four days before printing; Exhibit 10 was created 17 days before it was printed and updated seven days before printing; and Exhibit 11 shows it was created a month before it was printed and was updated six days before printing.

Mr. Rhodes provided credible testimony showing that the Craigslist pages described contracting services and to the effect that these advertisements were for work the value of which would be greater than $1000.

None of the five Craigslist pages show that Mr. Frederick and Worldly Plumbing are not licensed contractors,

Mr. Frederick has twice been convicted of misdemeanor contracting without a license, and in two other cases, Cease and Desist Orders were served on Mr. Frederick.

CONCLUSIONS OF LAW

ROC bears the burden persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(3).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119(A).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

ROC’s Citation was sent by certified mail to Mr. Frederick at the address that he and Worldly Plumbing were using on Angie’s list, and a letter was also sent to their Better Business Bureau address, which constitutes effective service of that Citation. See Ariz. Rev. Stat. § 32-1166.01(D).

The Notice of Hearing was not sent to the address that Mr. Frederick provided ROC when he requested a hearing. It has not been shown that Mr. Frederick received proper notice of the time and date of the hearing. See Ariz. Rev. Stat. § 41-1092.04.

The preponderance of the evidence shows that each of Mr. Frederick’s five Craigslist postings is an advertisement to provide contracting services. Ariz. Rev. Stat. § 32-1101(A)(1).

Because Mr. Frederick’s Craigslist advertisements did not include the required disclaimer, he does not qualify for the “handyman” exception to ROC’s licensing requirements. See Ariz. Rev. Stat. § 32-1121(A)(14).

ROC alleges that Mr. Frederick committed five violations of section 32-1165, but has proven only four because it did not prove that Mr. Frederick had an advertisement on Craigslist on or about June 2, 2013.

Mr. Frederick did have advertisements posted on or about May 11, May 12, May 24 and June 2, 2014, and consequently, Mr. Frederick has violated Ariz. Rev. Stat. section 32-1165 by advertising for construction services for which a contractor’s license is required.

ROC has authority to issue to Mr. Frederick a civil penalty of up to $2500 for each of his violations of section 32-1165. Ariz. Rev. Stat. § 32-1166.01(C).

Considering that Mr. Frederick is a repeat offender, ROC’s assessed civil penalty of $1500 for each of the four proven violation is appropriate. However, because the record does not demonstrate that ROC provided Mr. Frederick with proper notice of the hearing, no penalty should be assessed and the matter should be set for a rehearing.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors set this matter for a rehearing.

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 is forty days after the date of that certification.

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-137160-45720000Done this day, January 19, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000