ALJDEC decisions subject to certification as final

2015A-1126-ROC · Registrar of Contractors · 2016-02-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 3, 2015, at 1:00 p.m. and January 28, 2016, at 1:00 p.m. APPEARANCES: The Arizona Registrar of Contractors (“the Registrar”) was represented by Thomas C. Raine, Esq., Assistant Attorney General; Brian Andrew Maloney (“Respondent”) was represented by Alicia Z. Aguirre, Esq., Aguirre Law Office, PLC. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure On or about March 12, 2015, the Registrar’s Investigator Daniel Rhodes (“Investigator Rhodes”) received an anonymous complaint that “Brian” was performing unlicensed contracting activity at space 639 in the Country Roads RV Village, a 55+ manufactured home community located at 5707 E. Highway 80 in Yuma, Arizona 85364 (“Country Roads”). On or about December 12, 2014, Investigator Rhodes issued a Cease & Desist Order and a civil citation for violating of A.R.S. § 32-1151 and assessed a civil penalty in the amount of $1,500.00 against Respondent pursuant to A.R.S. § 32-1166 for the violation.[1] Respondent requested a formal hearing. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on December 3, 2015, and January 28, 2015. The Registrar submitted four exhibits and presented Investigator Rhodes’ testimony. Respondent submitted four exhibits and presented the testimony of two witnesses: (1) Himself; and (2) Charles Scott (“Mr. Scott”), the owner of the home located at space 639 in Country Roads. Additional Hearing Evidence After Investigator Rhodes received the anonymous complaint, he called the City of Yuma Building Safety and learned that a permit had been issued for the addition to the manufactured home on space #639 at Country Homes. Investigator Rhodes explained that because a permit was required, the so- called handyman exemption set forth at A.R.S. § 32-1121(A)(14) did not apply.[2] If Respondent was receiving any compensation for his work, even less than $1,000.00, he was engaging in unlicensed contracting. Investigator Rhodes reported his investigation and interviews of Respondent and Mr. Scott as follows: On 03/12/2015 at approximately 1100 hours I arrived at the location, a large RV Resort park and located the listed space. I observed a large white panel truck bearing AZ license plates 205-WHW parked in front of the location. The truck also had a poster in the front window that stated “Contractor” and the space number of 639. I know from previous contacts this is standard procedure for park security to issue a pass of this type to a contractor when working in the park. In addition, on the rear of the truck near the bumper the name “Brian” was stenciled in black lettering. The truck’s back doors were both open allowing quick access to a large assortment of tools visible within the cargo compartment.

I monitored briefly and observed two subjects working on an addition, one on the roof and one on the ground as well as a table saw and other tools. I approached and made contact, identifying myself.

Through discussion I was informed [Respondent] was “Brian” and was in fact helping [Mr. Scott] with his addition. He said no real discussion has been had yet about compensation, only that he lives in the park and helps many of the people on various projects. When asked, he estimated he has spent 40-50 hours in the last month working on [Mr. Scott’s] project.

I then spoke with [Mr. Scott] who also told me no specific amount had been discussed regarding what he would pay [Respondent] but he expected to pay him some. [Mr. Scott] also told me [Respondent] has worked for many people in the park and he does good work, has no complaints and most say he doesn’t charge enough. . . .[3]

Investigator Rhodes testified consistently with his report. The Registrar did not allege that Mr. Scott ever actually paid Respondent anything, only that both Mr. Scott and Respondent intended that some payment would be made. Investigator Rhodes testified that when he asked Respondent and Mr. Scott about whether Respondent would be compensated, neither one categorically stated that no money would be exchanged. The Registrar played the audio of Investigator Rhodes’ interviews of Respondent and of Mr. Scott.[4] When Investigator Rhodes asked Respondent how much money he would be paid for the addition, he stated that he had not discussed money with Mr. Scott. When Investigator Rhodes asked Mr. Scott how much he would pay Respondent if Respondent left the job on that day, Mr. Scott responded that he did not know and that Respondent was a friend, but that he should get something, or at least the same as the other neighbors who helped on the project. Mr. Scott stated that when friends help friends, there is usually no exchange of compensation and that neighbors have no expectation of payment. Investigator Rhodes did not take and the Registrar did not submit a photograph of the alleged “Contractor” sign in the window of Respondent’s truck. Respondent denied that he ever had a sign with the word, “contractor,” in his truck’s front window and testified that he could not have obtained such a sign from Country Road’s security because he is not a licensed contractor. Respondent submitted a photograph of the front of his truck, which showed his telephone number and “Brian, Lot 359.”[5] Respondent explained that he lives in the park and that when Mr. Scott returns to Canada during the summer, Respondent sometimes parks his truck in Mr. Scott’s space. The information in the window allows people to contact Respondent if he needs to move his truck. Mr. Scott testified that he started the addition in February 2015, and needed to complete the addition by April 2015, when he planned to return to Canada. Mr. Scott obtained the permit for the project as an owner-builder and hired an engineer and licensed electrical, roofing, drywall, mechanical, and decking contractors to perform work on the project. Mr. Scott testified that he had three or four Canadian friends who did work on the project, including two who had spent fifty or sixty hours helping. Mr. Scott testified that Country Roads is a tight-knit community where neighbors help each other. Respondent submitted photographs that Mr. Scott’s wife took of the construction project, which showed six or seven older men raising the frame for the addition and performing other incidental construction work.[6] Mr. Scott testified that he did not pay anything to any of his neighbors who helped with the project, including Respondent. Mr. Scott testified that because he could not bring tools from Canada, he borrowed Respondent’s table saw and chop saw. Respondent did not charge for the use of the tools. Mr. Scott testified that when he asked a friend for help, he does not discuss money. Mr. Scott testified that he never meant to pay Respondent anything. Mr. Scott testified that he took two of the men who had helped him on the project with their wives to one of the best restaurants in Yuma, but that he did not invite Respondent because he did not want to get Respondent into more trouble with the Registrar. Respondent denied that he had ever submitted a bid or offered to act as a contractor on Mr. Scott’s addition. Respondent testified that he has been friends with Mr. Scott for five or six years and that the two belong to the same church and men’s fellowship. Respondent testified that although sometimes he does odd jobs for his neighbors, he generally does not charge for the work. Respondent testified that sometimes his neighbors joke that he should charge for his work. Respondent testified that on March 12, 2015, when Investigator Rhodes arrived at the project, he was inspecting the roof to make sure that all the flashing was installed before the roof was constructed at Mr. Scott’s request because Mr. Scott cannot climb a ladder. Mr. Scott testified that he first asked two other neighbors to inspect the roof, but both had other plans that day. Respondent testified that he was caring for his ill mother until she required hospitalization. Respondent testified that he purchased the truck for additional storage for his tools because when he first moved from Michigan to Yuma, there was limited space in his parents’ 800 square foot manufactured home. Respondent testified that after he placed his mother in a nursing home, where she died, he started helping Mr. Scott with his addition. Respondent testified that 15-20 of his retired male neighbors helped to construct Mr. Scott’s addition and that none got paid, except for dinner. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[7] The Registrar bears the burden of proof to establish Respondent’s statutory violation 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.

A.R.S. § 32-1101(3) defines “contractor” as follows: “Contractor" is synonymous with the term "builder" and means any person . . . that, for compensation, undertakes to or offers to undertake to, purports to have the capacity to undertake to, submits a bid or responds to a request for qualification or a request for proposals for construction services to, does himself or by or through others, or directly or indirectly supervises others to:

a) Construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or any other structure or work in connection with the construction.

(Emphasis added.) The Registrar did not establish that it is more like than not that Respondent received or expected to receive compensation from his neighbor, Mr. Scott, for helping Mr. Scott construct the addition. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar dismiss the citation for a violation of A.R.S. § 32-1151 and rescind the assessment of the civil penalty against Respondent Brian Andrew Maloney in Case No. 2015-1126. 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, February 3, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See the Registrar’s Exhibit 2. [2] A.R.S. § 32-1121(A)(14) sets forth the so-called “handyman’s exemption” to licensure requirements and provides in relevant part 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 . . . 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. [3] The Registrar’s Exhibit 1 at 2. [4] See the Registrar’s Exhibit 4. [5] See Respondent’s Exhibit 11. [6] See Respondent’s Exhibit 8. [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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