ALJDEC decisions subject to certification as final

2014A-541-ROC · Registrar of Contractors · 2014-05-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 20, 2014, at 1:00 p.m. APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General, Seth T. Hargraves. Javier Lizarraga Simo (hereinafter “Mr. Simo” or “Respondent”) appeared on his own behalf. A Spanish/English speaking interpreter was present for the hearing. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Mr. Simo appealed a Civil Citation issued by the Registrar for operating unlawfully as an unlicensed contractor. The Registrar’s Citation imposed a civil penalty 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 $1,500.00 civil penalty. FINDINGS OF FACT Background 1. Mr. Simo is not a licensed contractor. On or about November 3, 2013, he entered into an oral agreement with James Paul Radzik (“the homeowner”) to perform extensive concrete work at the homeowner’s residence at 676 N. Marshall Loop Road, Somerton, Arizona. During the course of construction, the homeowner paid Mr. Simo the sum $1,500.00 for labor and paid an additional sum of money directly to the concrete supplier for the concrete. 2. Mr. Simo informed the homeowner that the construction project would be completed within two days. Mr. Simo failed to complete the construction project within the period of time promised. The homeowner complained to Mr. Simo and Mr. Simo abandoned the construction project. Mr. Simo left the homeowner with an incomplete construction project and refused to return any of the homeowner’s money. The homeowner then attempted to file a complaint against Mr. Simo with the Registrar.[1] 3. After investigating the complaint, the Registrar issued a Cease & Desist Order and a Civil Citation for the unlicensed activity, imposing a civil penalty of $1,500.00.[2] Mr. Simo requested a hearing. Testimony of Registrar Investigator Cort Bacon 4. Registrar Investigator Cort Bacon (hereinafter “Investigator Bacon”) testified that he had performed the investigation in this matter with the aid of a Spanish-speaking Investigator. Investigator Bacon stated that Mr. Simo is not a licensed contractor.[3] 5. Investigator Bacon testified that Arizona contracting law allows an exemption from licensure, with certain limitations, for a “handyman.”[4] Investigator Bacon stated that Mr. Simo’s construction work at the homeowner’s residence did not fit within the handyman exemption because the cost of the construction work was in excess of the dollar amount allowed in the handyman exemption. 6. Investigator Bacon testified that the homeowner had obtained a bid from a properly licensed contractor in the sum of $3,000.00 to correct and complete the concrete work performed by Mr. Simo. 7. Investigator Bacon testified that Mr. Simo had previously contracted with the homeowner and had constructed a block wall on the homeowner’s property. Investigator Bacon stated that a permit would have been required for the construction of the block wall at the homeowner’s residence. 8. Investigator Bacon testified that the Registrar issued a Cease & Desist Order and a Civil Citation for the unlicensed activity, imposing a civil penalty of $1,500.00. 9. Investigator Bacon’s testimony is found to be credible. Testimony of Javier Lizarraga Simo 10. Mr. Simo acknowledged that he is not a licensed contractor. 11. Mr. Simo acknowledged that he had performed concrete work at the homeowner’s residence for the sum of $1,500.00. Mr. Simo testified that after he paid his employees, he made very little money on the construction project. 12. Mr. Simo testified that he only agreed to help the homeowner because Mr. Simo’s daughter and son-in-law live next door to the homeowner. Mr. Simo acknowledged that he had received a check for $1,500.00 from the homeowner. 13. Mr. Simo acknowledged that he had constructed a block wall on the homeowner’s property. 14. Mr. Simo testified that the homeowner wanted an exposed granite type of finish on the concrete. Mr. Simo denied that he had abandoned the construction project. Mr. Simo stated that he stopped work on the construction project when the homeowner started to make threats. CONCLUSIONS OF LAW 1. Arizona contracting law prohibits a person from acting as a contractor without a license.[5] 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 job does not exceed $1,000.00.[6] The Registrar 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 not more than $2,500.00 for each violation per day.[7] 2. The evidence established a violation of Arizona contracting laws. Thus, a civil penalty is warranted. The evidence established that Mr. Simo operated as a contractor without a license by performing over $1,000.00 worth of concrete and block work at the homeowner’s residence without a permit. Mr. Simo failed to perform the agreed upon concrete work in a professional and workmanlike manner and abandoned the construction project, leaving the homeowner with an incomplete construction project that will require $3,000.00 to properly correct and complete. This Tribunal concludes that a civil penalty of $1,500.00 is warranted in this case. RECOMMENDED ORDER Based upon the foregoing, it is recommended that the Registrar affirm the finding that Mr. Simo violated A.R.S. § 32-1151 and affirm the decision to assess a civil penalty in the amount of $1,500.00, 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 forty (40) days from the date of certification. Done this day, May 22, 2014.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit 1 (Complaint filed by homeowner against Mr. Simo). [2] See Exhibits 3 (Cease and Desist Order). [3] See Exhibit 2 (Registrar of Contractors Investigation Report and Addendum). [4] See A.R.S. § 32-1121(A)(14). [5] A.R.S. § 32-1164(A)(2). [6] A.R.S. § 32-1121(A)(14). [7] A.R.S. § 32-1166(A).

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