FINACT2015A-169-ROC.pdf

2015A-169-ROC · Registrar of Contractors · 2015-06-18

BEFORE THE REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA IN THE MATTER OF THE CIVIL ) CASE NO: 2015-169 ) PENALTY CITATION ISSUED TO: ) DOCKET NO. 2015A-169-ROC John Duncan ) ) NOTICE OF ACCEPTANCE OF ) ADMINISTRATIVE LAW JUDGE’S RESPONDENT ) DECISION )

Under A.R.S. § 41-1092.08(B), the Registrar may review the administrative law judge’s written decision and accept, modify, or reject it. If the Registrar accepts that decision, then the administrative law judge’s decision constitutes the final administrative decision in the case. A.R.S. § 41-1092.08(F)(1). REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts it. CONCLUSION Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case. Therefore, the $1,500.00 civil penalty must be paid no later than July 27, 2015. Payment must be mailed to: Registrar of Contractors P.O. Box 6748 Phoenix, AZ 85505-6748 Signed this 16th day of June, 2015. REGISTRAR OF CONTRACTORS

/s/ James Hanson James N. Hanson Chief Counsel

REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Copy mailed via USPS First class mail this 16th day of June, 2015 to: Respondent John Duncan 8064 E. El Toro Cir., Apt 412 Tucson, AZ 85715-4321

AND copy electronically mailed this same date to:

Registrar’s Counsel Seth t. Hargraves, Esq., Assistant Attorney General Office of Administrative Hearings Diane Mihalsky, Administrative Law Judge

Case No. 2015-169 /mkc

REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Received 06/03/2015 Legal IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY No. 2015A-169-ROC CITATION ISSUED TO: ADMINISTRATIVE John Duncan LAW JUDGE DECISION RESPONDENT

HEARING: June 1, 2015, at 8:00 a.m. APPEARANCES: John Duncan (“Respondent”) failed to timely appear; the Arizona Registrar of Contractors (“the Registrar”) was represented by Seth T. Hargraves, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________ FINDINGS OF FACT

BACKGROUND AND PROCEDURE

1. On or about January 10 and 12, 2015, the Registrar’s Investigator James

Vildusea received two anonymous complaints that Respondent doing business as

Duncan and Duncan Painting had placed advertisements on Tucson’s Craiglist without

disclosing his unlicensed status.1

2. Investigator Vildusea checked the Registrar’s data base and determined that

neither Respondent nor his business possess a current or pending contractor’s license

in Arizona.

3. Investigator Vildusea also determined that Respondent had one prior civil

citation in 2014, in Case No. 2014-2157 for advertising on the internet without a license or disclosing his unlicensed status in violation of A.R.S. § 32-1165 and that the complaint had been closed with Cease & Desist Order to Respondent, but without imposition of any civil penalty.2

See the Registrar’s Exhibit 1. See the Registrar’s Exhibit 3.

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 Received 06/03/2015 Legal

4. On or about February 18, 2015, Investigator Vildusea on behalf of the Registrar issued a Cease & Desist Order and Civil Citation against Respondent for a violation of A.R.S. § 32-1165, and assessed a civil penalty against Respondent in the

amount of $1,500.00. The Registrar served the Cease & Desist Order, Civil Citation,

and notice of assessment of Civil Penalty on Respondent by certified mail.3

5. Respondent signed to accept delivery of the Cease & Desist Order, Civil

Citation, and notice of assessment of Civil Penalty on or about February 23, 2015.

6. Investigator Vildusea left a voicemail message for Respondent at the number

on the Craigslist advertisements, but Respondent did not return the message before

Investigator Vildusea issued the Cease & Desist Order, Civil Citation, and notice of

assessment of Civil Penalty.

7. On or about February 23, 2015, Respondent called Investigator Vildusea.

Investigator Vildusea instructed Respondent to change his Craigslist advertisements to

state, “Not a Licensed Contractor.”4

8. On or about March 18, 2015, the Registrar received Respondent’s request

for hearing.5

9. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. On April 21, 2015, the Registrar issued a Notice of Hearing setting a hearing on June 1, 2015, at 8:00 a.m. The Registrar sent the Notice of Hearing to Respondent at his address of record, the same address to which the Registrar had mailed the Cease & Desist Order, Civil Citation, and notice of assessment of Civil Penalty. 10. A hearing was held on June 1, 2015. The Registrar submitted six exhibits and presented Investigator Vildusea’s testimony to establish the facts set forth above. 11. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed more than thirty minutes to allow Respondent additional travel time, Respondent did not appear, personally or through an attorney, and did not See the Registrar’s Exhibit 4. 4 See the Registrar’s Exhibit 2 at 4. Received 06/03/2015 Legal

contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend against the Registrar’s charges.

12. According to the electronic docket of the OAH, at approximately 11:32 a.m.

on June 1, 2015, an hour and a half after the Administrative Law Judge (“ALJ”) had

released the Registrar’s attorney and Investigator Vildusea, Respondent called the

OAH to advise staff that he “was on his way from Tucson and wanted to let judge know

they are running late.” Staff advised Respondent that the hearing had been scheduled

at 8:00 a.m.

CONCLUSIONS OF LAW

1. The Notice of Hearing that the Registrar mailed to Respondent at his address

of record was reasonable, and it appears that he actually received the Notice of

Hearing, but miscalendared the time.6

2. This matter lies within the Registrar’s jurisdiction.7 3. The Registrar bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.8 4. “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 5. A.R.S. § 32-1165 provides as follows: Except as authorized by section 32-1121, subsection A, paragraph 14, subdivision (c), it is a class 1 misdemeanor

See the Registrar’s Exhibit 6. See A.R.S. §§ 41-1092.04; 41-1092.05(D). See A.R.S. § 32-1101 et seq. 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). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 10 BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). Received 06/03/2015 Legal

for any person to advertise that he is able to perform any service or contract for compensation subject to regulation by the registrar under the terms of this chapter unless a license under the terms of this chapter is first obtained regardless of whether his operations as a contractor are otherwise exempt. 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 if other requirements are met. A.R.S. § 32-1121(A)(14)(c) provides that the handyman exemption “does not apply . . . [t]o 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.” 6. A.R.S. § 32-1166(A) authorizes the Registrar to assess a civil penalty against a person who has been found to have advertised that he is able to perform a service for which a contractor’s license is required, in violation of A.R.S. § 32-1165, in relevant part as follows: In addition to all other remedies, when it appears to the registrar, either upon complaint or otherwise, that any person . . . 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 . . . 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. . . .

Received 06/03/2015 Legal

7. With respect to the appropriate civil penalty, the Registrar established as a factor in aggravation that in 2014, Respondent had been guilty of the same misconduct and had received a warning.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar affirm the finding

that Respondent John Duncan violated A.R.S. § 32-1165 and as a consequence,

impose a civil penalty in the amount of $1,500.00 under A.R.S. § 32-1166, to be paid in

certified funds to the Registrar on or before 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, June 2, 2015.

/s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors