ALJDEC decisions subject to certification as final

2014A-5230-ROC · Registrar of Contractors · 2015-06-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 29, 2015, at 1:00 p.m. APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General John Tellier, Esq. Andrew Bruce Caird (hereinafter “Respondent” or “Mr. Caird”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Mr. Caird appealed a Civil Citation issued by the Registrar for contracting without a license. The Civil Citation imposed a civil penalty in the amount of $1,500.00. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law, and Recommend Order are made, finding a violation and recommending imposition of a civil penalty in the amount of $500.00. FINDINGS OF FACT Background and Procedure Mr. Caird is not a licensed contractor in the State of Arizona.[1] On or about December 29, 2014, the Registrar received a written Complaint alleging that Mr. Caird had contracted to perform construction work on a residential construction project.[2] The Complaint provided as follows: Andy the handyman patched the sheet rock over dry rotted sheet rock and the same with the sub-floor in the hot water heater room. The same handyman or one of the other 2 companies stepped through the floor onto the duct work and disconnected it from the home and left it.

The Complaint was assigned to Registrar Investigator Steve Willoughby (hereinafter “Investigator Willoughby”). Investigator Willoughby mailed a warning letter to the Respondent on January 12, 2015. On or about January 13, 2015, Investigator Willoughby performed a ROCIMS search and determined that the Respondent was not a licensed contractor in the state of Arizona. Investigator Willoughby determined that on or about August 23, 2014, Mr. Caird dba Andy the Handyman, an unlicensed contractor, had contracted with a representative of David Lay to perform repair services at Mr. Lay’s residence at 2053 N. Rustler Trail, Camp Verde, Yavapai County, Arizona for the sum of $980.00, and that the agreed-upon repair work was part of a larger construction project totaling approximately $4,300.00.[3] Investigator Willoughby determined that Mr. Caird had violated the provisions of A.R.S. § 32-1151 (Engaging in contracting without a license). A Cease & Desist Order was issued to Mr. Caird on or about January 13, 2015, for violating the provisions of A.R.S. § 32-1151. A civil penalty in the sum of $1,500.00 was assessed for one (1) count of contracting without a license.[4] Investigator Willoughby did not appear at the hearing. Testimony Mr. Caird acknowledged that he is not a licensed contractor. Mr. Caird acknowledged that he performed repair services at David Lay’s residence at 2053 N. Rustler Trail, Camp Verde, Yavapai County, Arizona for the sum of $980.00. Mr. Caird initially denied that he had entered into a contract to perform the repair work. Mr. Caird then stated that he had a verbal contract with Mr. Lay. Mr. Caird acknowledged that the cost of a larger construction project that was being performed on Mr. Lay’s residence could have totaled as much as $4,300.00. Mr. Caird said that he was not in control of the construction project and that his repair work was for less than $1,000.00. Mr. Caird testified that he referred the subfloor part of the construction project to a licensed contractor, identified as Dalton’s Carpet. Mr. Caird testified that he was within the limit of $1,000.00 for handyman work. Mr. Caird said that he did not know that performing the agreed-upon repair work as part of a larger construction project could be construed to be in violation of A.R.S. § 32-1151. Mr. Caird said that the repair work that he performed on the Lay residence complied with all applicable workmanship standards. Mr. Caird said that the unsatisfactory work that the Complaint was based upon had nothing to do with the handyman repair work that he performed. There was no evidence of any aggravating factors in this matter. CONCLUSIONS OF LAW The Registrar bears the burden of proof to establish Mr. Caird’s violation of A.R.S. § 32-1151 by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] 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.”[6] Arizona contracting law prohibits a person 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, with certain exclusions, such as that the work does not require a permit, as long as the aggregate price for the entire project, including labor and materials, does not exceed $1,000.00.[8] The Registrar may 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 between $200.00 and $2,500.00 for each violation, but not more than $2,500.00 per day.[9] A.R.S. § 32-1121(A)(14) provides as follows: Any person other than a licensed contractor engaging in any work or operation on one undertaking or project by one or more contracts, for which the aggregate contract price, including labor, materials and all other items, but excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person, that can be plugged into a common household electrical outlet utilizing a two pronged or three pronged electrical connector and that does not use any other form of energy, including natural gas, propane or other petroleum or gaseous fuel, to operate or is attached by a nail, screw or other fastening device to the frame or foundation of any residential structure, is less than one thousand dollars. The work or operations that are exempt under this paragraph shall be of a casual or minor nature. This exemption does not apply:

(a) In any case in which the performance of the work requires a local building permit.

(b) In any case in which the work or construction is only a part of a larger or major operation, whether undertaken by the same or a different contractor, or in which a division of the operation is made in contracts of amounts less than one thousand dollars, excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person, that can be plugged into a common household electrical outlet utilizing a two pronged or three pronged electrical connector and that does not use any other form of energy, including natural gas, propane or other petroleum or gaseous fuel, to operate or is attached by a nail, screw or other fastening device to the frame or foundation of any residential structure, for the purpose of evasion of this chapter or otherwise.

(c) To 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

A.R.S. § 32-1166(A) authorizes the Registrar to assess “a civil penalty in an amount of at least two hundred dollars for each violation but not more than two thousand five hundred dollars for the multiple violations committed on the same day.” With respect to the appropriate amount of the total civil penalties for Respondent’s violation of A.R.S. § 32-1151, A.R.S. § 32-1166(A) required the Registrar to “adopt rules covering the assessment of a civil penalty that give due consideration to the gravity of the violation and any history of previous violations.” Pursuant to this directive, the Registrar adopted A.A.C. R4-9-131.[10] The preponderance of the evidence established that Mr. Caird is not a licensed contractor. The preponderance of the evidence also established on or about August 23, 2014, Mr. Caird dba Andy the Handyman, an unlicensed contractor, contracted to perform repair services at David Lay’s residence at 2053 N. Rustler Trail, Camp Verde, Yavapai County, Arizona for the sum of $980.00, and that the agreed-upon repair work was part of a larger construction project totaling approximately $4,300.00. This Tribunal concludes that Mr. Caird violated the charged provisions of A.R.S. § 32-1151. This Tribunal further concludes that a civil penalty in the sum of $500.00 is warranted in this case. RECOMMENDED ORDER Based upon the foregoing, it is recommended that the Registrar affirm the finding that Mr. Caird violated A.R.S. § 32-1151. It is further recommended that the Registrar affirm the decision to assess a civil penalty in this matter. It is further recommended that in the absence of any aggravating factors, the amount of the civil penalty be reduced from $1,500.00 to $500.00, to be paid in certified funds to the Registrar on or before the effective date of the Registrar’s 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 shall be five (5) days from the date of certification. Done this day, June 16, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See Exhibit 1 (Investigation Report with Attachments). [2] See Exhibit 10 (Complaint). [3] See Exhibit 1 (Investigation Report with Attachments). [4] See Exhibit 3 (Cease & Desist Order). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary at page 1220 (8th ed. 1999). [7] A.R.S. § 32-1164(A)(2). [8] A.R.S. § 32-1121(A)(14). [9] A.R.S. § 32-1166(A). [10] A.A.C. R4-9-131 sets forth permissible aggravating and mitigating factors to be considered, in relevant part as follows: In assessing a civil penalty as provided for under A.R.S. § 32- 1166(A), the Registrar shall give due consideration to whether the person cited or any individual acting on that person’s behalf has committed one or more of the following acts in determining the gravity of the cited violation: 1. Falsely represented to be a licensed contractor. 2. Failed to perform any work for which money was received. 3. Executed or used any false or misleading documents for the purpose of inducing a person to enter into a contract or to pay money for work to be performed. 4. Made false or misleading statements for the purpose of inducing a person to enter into a contract or to pay money for work to be performed. 5. Failed or neglected to apply funds which were received for the purpose of obtaining or paying for services, labor, materials, or equipment. 6. Performed work that was or had the potential to become hazardous to the health, safety, or general welfare of the public. 7. Performed work that deliberately was in violation of building codes, safety laws, labor laws, workers’ compensation laws, or unemployment insurance laws. 8. Performed work that failed to meet minimum acceptable trade or industry standards or practices or was not performed in a good and workmanlike manner. 9. Has committed any other act which would otherwise be cause for disciplinary action if the person cited had been properly licensed pursuant to A.R.S. Title 32, Chapter 10. 10. Has committed two or more prior violations. 11. Performed work that has caused loss or damage to the structure, its appurtenances, or property being worked upon or has caused loss or injury to any person.

-----------------------

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