ALJDEC decisions subject to certification as final

2014A-684-ROC · Registrar of Contractors · 2014-06-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 5, 2014 APPEARANCES: The Registrar of Contractors was represented by Assistant Attorney General John Tellier. Timothy J. Warnock appeared personally. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ FINDINGS OF FACT 1. On February 1, 2014, Isabel (Jacki) Manning filed a Complaint Form against Timothy J. Warnock (“Respondent”) with the Registrar of Contractors (“Registrar”) alleging six complaint items concerning Respondent’s workmanship on a master bathroom remodeling project at Ms. Manning’s residence in Yuma, Arizona. The Registrar designated Ms. Manning’s Complaint Form as Complaint Number 2014-684. 2. According to Ms. Manning’s Complaint Form, she had hired Respondent in October 2013, to perform some work on her master bathroom remodeling project. Ms. Manning asserted that Respondent was not a licensed contractor at the time of the project and that she had paid Respondent the total sum of $3,050.00 for his scope of work. 3. Complaint Number 2014-684 was assigned to Cort Bacon, the Registrar’s assigned investigator in Yuma. 4. On February 24, 2014, Investigator Bacon went to Ms. Manning’s residence to interview her and to perform a jobsite inspection. Investigator Bacon observed uneven backsplash tile, an uneven overhead soffit box, a poor tile job under the backside of the toilet that had been repaired by Respondent to prevent leakage, and a scratch on the side of a vanity. 5. On February 26, 2014, Investigator Bacon received additional information from Ms. Manning, including her affidavits. 6. On March 3, 2014, Investigator Bacon provided Ms. Manning with a photo lineup that included Respondent’s photo. Ms. Manning identified Respondent from the photo. 7. On March 2, 2014, Investigator Bacon interviewed Respondent about the case. Respondent confirmed to Investigator Bacon that he had performed work on Ms. Manning’s project. Investigator Bacon explained the “Handyman Exemption” to Respondent. 8. On March 3, 2014, Investigator Bacon issued a Cease & Desist Order/Civil Citation in Case No. 2014-684 charging Respondent with violating the provisions of A.R.S. § 32-1151 by performing contracting on Ms. Manning’s residence without a contractor’s license. The Cease & Desist Order/Civil Citation imposed a civil penalty of $1,500.00 upon Respondent and required Respondent to cease and desist all unlicensed contracting activities in Arizona. Investigator Bacon mailed the Cease & Desist Order/Civil Citation to Respondent by certified mail. 9. On March 4, 2014, Investigator Bacon received a telephone call from Respondent, who was argumentative about the case. Investigator Bacon explained to Respondent that he failed to satisfy the “Handyman Exemption” for the following two reasons: (i) The cost of Respondent’s work exceeded $1,000.00; and (ii) The cost of the entire master bathroom remodeling project exceeded $1,000.00. 10. On March 5, 2014, Investigator Bacon received the return receipt for the mailing of the Cease & Desist Order/Civil Citation to Respondent. 11. On April 2, 2014, the Registrar received Respondent’s request for hearing. 12. On May 2, 2014, the Registrar issued a Notice of Hearing on Citation and Civil Penalty in Case No. 2014-684 setting the matter for hearing before the Office of Administrative Hearings, an independent agency, on June 5, 2014, at 8:00 a.m. 13. At the hearing, the Registrar presented its case through the testimony of Investigator Bacon and eight exhibits consisting of the following: (i) The Cease & Desist Order/Civil Citation; (ii) Ms. Manning’s Complaint Form filed on February 21, 2014, with attachments; (iii) Investigator Bacon’s written Investigation Unit for Case No. 2014-684; (iv) Ms. Manning’s Affidavit with Statement of Facts; (v) Ms. Manning’s Affidavit with a photograph of Respondent performing work on Ms. Manning’s project; (vi) Ms. Manning’s Affidavit with text messages from Respondent concerning his work on Ms. Manning’s guest bathroom with a photograph; (vii) Jobsite Inspection Photos taken by Investigator Bacon on February 24, 2014; and (viii) Respondent’s request for hearing dated March 24, 2014. 14. Respondent originally performed a guest bathroom remodel for Ms. Manning. After the completion of that project, Ms. Manning hired Respondent to remodel project her master bathroom. 15. Respondent and Ms. Manning did not have a written contract for the master bathroom project. However, there is credible evidence of record that Respondent presented Ms. Manning with a handwritten estimate of the scope of work that he would perform and costs of $2,200.00 for the bathroom tile, wall, and paint and $300.00 for a backsplash. There was also evidence that the scope of the master bathroom project expanded due to changes requested by Ms. Manning. 16. Ms. Manning paid Respondent in cash for the project. She believed that she paid Respondent at least $3,050.00 based upon her bank withdrawal slips. Although Respondent testified that he did not receive that amount from Ms. Manning, Respondent did not credibly establish that the amount of money he received from Ms. Manning for his work on the project was $1,000.00 or less. 17. The evidence of record established that Respondent’s work on the subject project exceeded a cost of $1,000.00. 18. The testimonies of Investigator Bacon and Respondent established that the subject project also involved work that was performed by a licensed plumber and a licensed electrician. 19. The evidence of record established that the master bathroom project cost more than $1,000.00. CONCLUSIONS OF LAW 1. Pursuant to the provisions of A.A.C. R2-19-119(B), the Registrar has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119(A). 2. A.R.S. § 32-1121(A)(14) provides the following “Handyman Exemption” for an exemption from the licensing requirements for contracting in Arizona: 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.

3. The evidence of record established that Respondent contracted without a license on Ms. Manning’s master bathroom project because he did not qualify for an exemption under A.R.S. § 31-1121(A)(14). The weight of credible evidence established that the cost of Respondent’s work on the project exceeded $1,000.00. 4. Respondent also did not qualify for an exemption under A.R.S. § 31- 1121(A)(14) because the master bathroom remodeling project also included work performed by a licensed plumber and a licensed electrician. The weight of credible evidence established that the cost of the entire master bathroom remodeling project exceeded $1,000.00. 5. The evidence of record established that the Registrar had the authority to issue the Cease & Desist Order/Civil Citation and to impose a civil penalty in the amount of $1,500.00 for Respondent’s unlicensed contracting activities on Ms. Manning’s master bathroom remodeling project pursuant to A.R.S. § 32-1166.[1] RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar’s Cease & Desist Order/Civil Citation imposing a $1,500.00 civil penalty on Respondent for his unlicensed contracting in Case No. 2014-684 be upheld.

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 the certification. Done this day, June 19, 2014.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1][2] A.R.S. § 32-1166 provides as follows: A. In addition to all other remedies, when it appears to the registrar, either upon complaint or otherwise, that any person, firm, partnership, corporation, association or other organization, or a combination of any of them, has engaged in or is engaging in any act of contracting, practice or transaction which constitutes a violation of this chapter, or any rule or order of the registrar, the registrar may serve upon such person, firm, partnership, corporation, association or other organization not currently licensed under this chapter, by certified mail or by personal service, a cease and desist order requiring the person, firm, partnership, corporation, association or other organization to cease and desist immediately, upon receipt of the notice, from engaging in such act, practice or transaction. In conjunction with the cease and desist order, the registrar may issue a citation for a violation. Each citation shall be in writing and shall clearly describe the violation for which the citation was issued. Each citation shall contain an order to cease and desist and an assessment of 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. If after the issuance of a citation by the registrar, the person or organization receiving the citation fails to cease and desist in the violation or violations described in the citation, the registrar may assess an additional civil penalty of up to two thousand five hundred dollars for each day the violation or violations continue. The registrar shall 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. The penalties authorized under this section are separate from, and in addition to, all other remedies either civil or criminal. B. Each violation of this chapter or a rule or order of the registrar by a person who is required to be licensed by this chapter and who does not possess the required license shall constitute a separate offense, and the registrar may impose a civil penalty of not to exceed two thousand five hundred dollars for each violation except that for multiple violations committed on the same day the civil penalty shall not exceed two thousand five hundred dollars for all such violations. Monies collected from civil penalties shall be deposited in the state general fund. C. The registrar of contractors may issue citations containing orders to cease and desist and of civil penalties against persons who have never been licensed under this chapter who are acting in the capacity of or engaging in the business of a contractor in this state.

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