ALJDEC decisions subject to certification as final

2015A-1295-ROC · Registrar of Contractors · 2015-09-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 4, 2015, at 1:00 p.m. APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General Seth T. Hargraves. Bryan L. Dinwiddie (hereinafter “Respondent” or “Mr. Dinwiddie”) failed to appear at the time scheduled for hearing and did not request to appear telephonically or via video conference. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

FINDINGS OF FACT 1. On or about March 25, 2015, the Registrar’s Investigator Joy Dalesio (hereinafter “Investigator Dalesio”) on behalf of the Registrar issued a Cease & Desist Order, a Civil Citation, and imposed a civil penalty against Mr. Dinwiddie in the amount of $2,500.00 for contracting without a license in violation of A.R.S. § 32-1151.[1] Mr. Dinwiddie requested a formal hearing.[2] The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on September 4, 2015. The Registrar presented the testimony of Investigator Dalesio and submitted eight (8) exhibits. Mr. Dinwiddie failed to appear. 2. Investigator Dalesio testified that on or about February 25, 2015, the Registrar received an anonymous complaint that Mr. Dinwiddie dba Dinwiddie Construction was performing construction work at 3228 N. Colombo Ave., Sierra Vista, Arizona.[3] 3. Investigator Dalesio said that she consulted the Registrar’s records and discovered that Respondent did not have an active, past, or pending contractor’s license in the State of Arizona. Investigator Dalesio also discovered that Respondent had seven prior unlicensed complaints with Registrar.[4] 4. On or about February 25, 2015, Investigator Dalesio went to the City of Sierra Vista’s offices and discovered that there had been no building permit issued for 3228 N. Colombo Ave., Sierra Vista, Arizona.[5] 5. Investigator Dalesio went to 3228 N. Colombo Ave., Sierra Vista, Arizona. Investigator Dalesio observed a new fence and ongoing construction at the residence. Investigator Dalesio then contacted the Building Inspector for the City of Sierra Vista, Arizona.[6] 6. The Building Inspector confirmed that a building permit would have been required for the construction of the new fence and possibly for the ongoing interior work at the construction site.[7] 7. On March 16, 2015, Investigator Dalesio conducted an interview with the owner of the residence located at 3228 N. Colombo Ave., Sierra Vista, Arizona. The homeowner stated that he had hired the Respondent to complete the construction work on his residence. The homeowner said that the Respondent bid to complete all of the construction work on the residence, including a new roof, for “around $14,000.00.” The homeowner said that Respondent constructed the new fence, installed stucco on the residence, installed new kitchen cabinets, and laid new flooring in the Arizona room in the residence. The homeowner said that Respondent had agreed to complete the construction project within two weeks but that the construction had actually taken three months.[8] 8. The construction contract prepared by Respondent provided that the construction project was to be completed for $5,000.00.[9] 9. The homeowner stated that he had paid Respondent about $3,000.00 in cash for labor and about $2,000.00 for materials for the portion of the construction project that Respondent had actually completed.[10] 10. On March 23, 2015, Investigator Dalesio conducted a telephonic interview with Respondent. During the interview with Investigator Dalesio, Respondent acknowledged that he was familiar with the “Handyman Exemption.” Respondent acknowledged that he was not a licensed contractor and that he was performing work on the construction project at 3228 Colombo Drive, Sierra Vista Arizona. During the interview Respondent acknowledged that he had contracted to perform work that was over $1,000.00. Respondent asserted that he thought that if he worked for someone, it was okay. In reviewing Respondent’s record with the Registrar, Investigator Dalesio found that a previous Investigator for the Registrar had repeatedly explained the “Handyman Exemption” and the State’s licensure laws to Respondent. 11. Investigator Dalesio issued a Civil Citation and Cease and Desist Order to the Respondent and assessed a $2,500.00 civil penalty against him on March 25, 2015.[11] 12. Investigator Dalesio’s testimony is found to be credible. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[12] The Registrar bears the burden of proof to establish Mr. Dinwiddie’s statutory violations by a preponderance of the evidence.[13] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[14] 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.”[15] 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.

The preponderance of the evidence established that Mr. Dinwiddie engaged in unlicensed contracting in violation of A.R.S. § 32-1151. A.R.S. § 32-1121(A)(14)(a) sets forth the so-called “handyman’s exemption” to licensure requirements for contractors who perform work whose aggregate contract price, including labor and materials, is less than $1,000.00. The handyman exemption does not apply to the matter at issue because the construction bid prepared by the Respondent was for $5,000.00 and the homeowner paid Respondent about $3,000.00 in cash for labor and about $2,000.00 for materials for the portion of the construction project that Respondent had actually completed. A.R.S. § 32-1166(A) authorizes the Registrar to assess a civil penalty against a person who has been found to have contracted without a license in violation of A.R.S. § 32-1151 or to have advertised that he is able to perform a service for which a contractor’s license is required. Mr. Dinwiddie had submitted a bid to the owner of the residence located at 3228 N. Colombo Ave., Sierra Vista, Arizona, to perform construction work on the residence for $5,000.00. At least a portion of the construction work required a construction permit. Mr. Dinwiddie is not a licensed contractor. The owner of the residence paid Respondent about $3,000.00 in cash for labor and about $2,000.00 for materials for the portion of the construction project that Respondent had actually completed at 3228 N. Colombo Ave., Sierra Vista, Arizona. This Tribunal concludes that Respondent violated the charged provision of A.R.S. § 32-1151 and that the imposition of a $2,500.00 civil penalty is warranted. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar affirm the finding that Respondent violated A.R.S. § 32-1151 and affirm the assessment of a civil penalty in the amount of $2,500.00 for the Respondent’s unlicensed contracting in violation of A.R.S. § 32-1151. The penalty in the amount of $2,500.00 shall be paid in certified funds to the Registrar on or before thirty days after the effective date of the 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 will be five days from the date of that certification. Done this day, September 15, 2015.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See Exhibit 7 (Citation & Cease and Desist Order). [2]See Exhibit 8 (5/12/15 Response and Request for Hearing). [3] See the Registrar’s Exhibit 2 (Registrar’s Investigation Report with Attachments). [4]See the Registrar’s Exhibit 2 (Registrar’s Investigation Report with Attachments). [5]See the Registrar’s Exhibit 2 (Registrar’s Investigation Report with Attachments). [6] See the Registrar’s Exhibit 2 (Registrar’s Investigation Report with Attachments). [7]See the Registrar’s Exhibit 2 (Registrar’s Investigation Report with Attachments). [8]See the Registrar’s Exhibit 2 (Registrar’s Investigation Report with Attachments). [9]See the Registrar’s Exhibit 3 (Construction Agreement). [10]See the Registrar’s Exhibit 2 (Registrar’s Investigation Report with Attachments). [11]See the Registrar’s Exhibit 7(Citation and Cease and Desist Order). [12] See A.R.S. § 32-1101 et seq. [13] 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). [14] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [15] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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