ALJDEC decisions subject to certification as final

2014A-4892-ROC · Registrar of Contractors · 2015-05-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 22, 2015 APPEARANCES: No one appeared for Respondent; Seth T. Hargraves, Esq. appeared for the Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On February 12, 2015, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Citation and Civil Penalty setting the above-captioned matter for hearing at 8:00 a.m. April 22, 2015, at the Office of Administrative Hearings in Phoenix, Arizona. 2. No representative for Respondent Hector M. Machado had appeared by 8:25 a.m. and the hearing was convened in his absence at about that time. 3. ROC presented the testimony of Daniel Rhodes, one of its investigators. 4. Mr. Machado was the qualifying party for Machado’s Custom Landscaping, LLC (the “LLC”), which held license number CR21.233852-D. The LLC was licensed from June 13, 2007 until July 1, 2010, when the license expired. The LLC’s license was suspended for non-renewal on July 1, 2009. 5. In Case 2013-1595, which was opened on April 8, 2013 and closed on August 16, 2013, Mr. Machado was issued a Cease & Desist Order for advertising without a license. 6. On December 5, 2014, ROC received an anonymous tip showing that Mr. Machado was advertising landscaping services and using an expired ROC license number (233852) in an advertisement. The tip included a copy of an advertisement that appeared in the December 2014 Coupon Clipper. 7. Mr. Rhodes was assigned to investigate the matter. 8. On December 10, 2014, Mr. Rhodes telephoned Mr. Machado but was connected to a voicemail system that announced the caller had reached Machado’s Landscaping. 9. Mr. Machado returned Mr. Rhodes’s call, at which time he confirmed that he was performing landscaping work and that the December 2014 Coupon Clipper advertisement was his. 10. The December 2014 Coupon Clipper advertisement shows landscape “packages” ranging in price from $1,095 to $2,495. That advertisement includes “ROC#233852” and does not include a statement showing that Mr. Machado is not a licensed contractor. 11. Landscaping is an activity for which a contractor’s license is required. 12. On December 11, 2014, Mr. Rhodes issued to Mr. Machado a Cease and Desist Order, in which Mr. Machado was assessed a civil penalty of $1000 for violating Ariz. Rev. Stat. section 32-1165. 13. United States Postal Service tracking information shows that Mr. Machado received the Cease and Desist Order on December 18, 2014. 14. On January 8, 2015, ROC received an advertisement for Machado’s Landscape Construction that appeared in the December 30, 2014 Maricopa Monitor. That advertisement included essentially the same information as the advertisement appearing in the December 2014 Coupon Clipper, including “ROC#233852” and did not include a statement showing that Mr. Machado was not a licensed contractor. 15. On January 9, 2015, Mr. Rhodes issued to Mr. Machado a second Cease & Desist Order, in which Mr. Machado was assessed a civil penalty of $1500 for violating Ariz. Rev. Stat. section 32-1165. CONCLUSIONS OF LAW 1. ROC bears the burden persuasion. Ariz. Rev. Stat. § 41- 1092.07(G)(3). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 3. A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). 4. The preponderance of the evidence shows that by advertising in the Coupon Clipper and by advertising in the Maricopa Monitor, Mr. Machado has twice violated Ariz. Rev. Stat. section 32-1165. See also Ariz. Rev. Stat. § 32-1121(14)(c)(the handyman exception does not apply unless the advertisement includes a statement that the person is not a licensed contractor). 5. Mr. Machado is subject to a civil penalty of up to $2500 for each violation of Ariz. Rev. Stat. section 32-1165. Considering the facts and circumstances of this matter, the civil penalties of $1000 and $1500 are appropriate. ORDER IT IS ORDERED that on or before thirty days after the effective date of the final order in this matter Hector M. Machado must pay to the Registrar in certified funds the combined total of $2,500.00. 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.

Done this day, May 8, 2015.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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