ALJDEC decisions subject to certification as final

2014A-4786-ROC · Registrar of Contractors · 2015-05-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 13, 2015, at 1:00 p.m. APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General Seth T. Hargraves. William J. Maes (hereinafter “Respondent” or “Mr. Maes”) failed to appear at the time scheduled for hearing and did not request to appear telephonically or via video conference. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

FINDINGS OF FACT

1. On December 9, 2014, Registrar’s Investigator Joy Dalesio (hereinafter “Investigator Dalesio”) on behalf of the Registrar issued a Cease & Desist Order, a Civil Citation, and imposed civil penalties against Mr. Maes in the amounts of $1,000.00 for contracting without a license in violation of A.R.S. § 32-1151 and $500.00 for advertising without a license in violation of A.R.S. § 32-1165.[1] Mr. Maes signed the Cease & Desist Order, Civil Citation, and notice of civil penalties to acknowledge receipt.[2] Mr. Maes requested a formal hearing.[3] The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on May 13, 2015. The Registrar presented the testimony of Investigator Dalesio and submitted three exhibits. Mr. Maes failed to appear. 2. Investigator Dalesio testified that on or about November 13, 2014, the Registrar received a complaint that Mr. Maes dba Bill’s Evaporative Cooler Service had submitted a bid to Joe Quezada to complete a roof coating on a four unit apartment complex for the sum of $5,806.00. The Complaint included the written bid, a notarized letter from the Respondent stating that Mr. Maes had applied to the Registrar for a contractor’s license with an attached copy of a false application for licensure with the Registrar and a business card for Bills’ Evaporative Cooler Service. The Complaint contained an additional letter from Respondent offering to reduce the bid of $5,806.00 by 20%. None of the paper work disclosed that the Respondent was not a licensed contractor.[4] 3. Investigator Dalesio said that she consulted the Registrar’s records and discovered that Respondent did not have an active, past, or pending contractor’s license in the State of Arizona. Investigator Dalesio also discovered that Mr. Maes had a history of criminal assaults and had served an eight-year prison sentence for Assault with a Deadly Weapon.[5] 4. On or about November 20, 2014, Investigator Dalesio went to the address listed on the Respondent’s false license application. Investigator Dalesio observed and took photographs of Respondent’s truck and trailer. Respondent’s truck and trailer displayed advertising that stated that Respondent was “licensed, bonded and insured.” The advertisements did not disclose “not a licensed contractor” as required by applicable statute.[6] 5. On or about November 30, 2014, Investigator Dalesio found classified ads in the Sierra Vista Herald for Respondent representing that the Respondent was “Licensed/Bonded/insured” and that Respondent had applied for a CR58 License with the Registrar. 6. On December 9, 2014, accompanied by an officer from the Sierra Vista Police Department, Investigator Dalesio conducted an interview with the Respondent at the address listed on Respondent’s false license application. Mr. Maes initially stated that he had applied for a contractor’s license with the Registrar. When confronted with the fact that no license application had been filed with the Registrar, Mr. Maes asserted that it may have been lost in the mail. 7. During the interview with Investigator Dalesio, Mr. Maes acknowledged that he was familiar with the “Handyman Exemption” and that he knew that he could not legally contract to perform construction work for over $1,000.00. The Respondent initially stated that he had not contracted for jobs that were over a $1,000.00 “for a long time.” When confronted with the bid for roofing work for the sum of $5,806.00 contained in the Complaint, Mr. Maes acknowledged that he had contracted to perform work that was over $1,000.00. 8. During the interview Mr. Maes asserted that he had changed the ad in the local newspaper to disclose that he was not a licensed contractor. Investigator Dalesio checked with the local newspaper after the interview and was informed that no such request had been made by Respondent. 9. Investigator Dalesio’s testimony is found to be credible. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[7] The Registrar bears the burden of proof to establish Mr. Maes’ statutory violations 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] A preponderance of the evidence is “[t]he 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.”[10] A.R.S. § 32-1151 prohibits contracting without a license, providing in relevant part as follows: It is unlawful for any person, firm, partnership, corporation, association or other organization, or a combination of any of them, to engage in the business of, submit a bid or respond to a request for qualification or a request for proposals for construction services as, act or offer to act in the capacity of or purport to have the capacity of a contractor without having a contractor's license in good standing in the name of the person, firm, partnership, corporation, association or other organization as provided in this chapter, unless the person, firm, partnership, corporation, association or other organization is exempt as provided in this chapter. Evidence of securing a permit from a governmental agency or the employment of a person on a construction project shall be accepted in any court as prima facie evidence of existence of a contract.

The preponderance of the evidence established that Mr. Maes engaged in unlicensed contracting in violation of A.R.S. § 32-1151. A.R.S. § 32-1121(A)(14)(a) sets forth the so-called “handyman’s exemption” to licensure requirements for contractors who perform work whose aggregate contract price, including labor and materials, is less than $1,000.00. The handyman exemption does not apply to the roofing bid prepared by Mr. Maes because bid was for $5,806.00. 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 that “[t]his exemption does not apply . . . [t]o 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.” The preponderance of the evidence established that Mr. Maes violated A.R.S. § 32-1165 by advertising without a license. A.R.S. § 32-1166(A) authorizes the Registrar to assess a civil penalty against a person who has been found to have contracted without a license in violation of A.R.S. § 32-1151 or to have advertised that he is able to perform a service for which a contractor’s license is required. This Tribunal concludes that Respondent violated the charged provision of A.R.S. § 32-1165 by advertising without a license and that the imposition of a civil penalty in the amount of $500.00 is warranted. Mr. Maes dba Bill’s Evaporative Cooler Service had submitted a bid to Joe Quezada to complete a roof coating on a four unit apartment complex for the sum of $5,806.00. Mr. Maes is not a licensed contractor. This Tribunal concludes that Respondent violated the charged provision of A.R.S. § 32- 1151 and that the imposition of a $1,000.00 civil penalty is warranted. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar affirm the finding that Respondent violated A.R.S. §§ 32-1151 and 32-1165, affirm the assessment of a civil penalty in the amount of $1,000.00 for Mr. Maes’ unlicensed contracting in violation of A.R.S. § 32-1151, and affirm the assessment of a civil penalty in the amount of $500.00 for his advertising without a license in violation of A.R.S. § 32-1165. The combined total of $1,500.00 in civil penalties shall be paid in certified funds to the Registrar on or before thirty days after the effective date of the final order 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 five days from the date of that certification. Done this day, May 18, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See Exhibit 2 (Citation & Cease and Desist Order). [2] See Exhibit 2 (Citation & Cease and Desist Order). [3]See Exhibit 3 (1/1/15 Response and Request for Hearing). [4] See the Registrar’s Exhibit 1 (Registrar’s Investigation Report with Attachments). [5]See the Registrar’s Exhibit 1 (Registrar’s Investigation Report with Attachments). [6] See the Registrar’s Exhibit 1 (Registrar’s Investigation Report with Attachments). [7] See A.R.S. § 32-1101 et seq. [8] See A.R.S. § 41-1092.07(G)(3); A.A.C. R2-19-119(A) and A.A.C. R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [9] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [10] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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