ALJDEC decisions subject to certification as final

2015A-2273-CPA-ROC-RHG · Registrar of Contractors · 2021-07-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Jeremy Lee Frederick,

DBA: Worldly Plumbing,

RESPONDENT

No. 2014A-2450-CPA-LS-ROC-RHG

No. 2015A-2273-CPA-ROC-RHG

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 6, 2021

APPEARANCES: John Tellier, Esq. for the Registrar of Contractors; Jeremy Lee Frederick for Respondent

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On March 3, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Unlicensed Rehearing setting docket number 2014A-2450-CPA-ROC hearing on April 2, 2021 at the Office of Administrative Hearings in Phoenix, Arizona.

On March 15, ROC filed with the Office of Administrative Hearings a request to consolidate docket number 2015A-2273-CPA-ROC with 2014A-2450-CPA-ROC-RHG.

The consolidated matters were continued and the hearing was conducted on July 6, 2021.

ROC appeared through counsel and presented the testimony of Daniel Rhodes, one of its investigators. Mr. Rhodes was the investigator in the 2015 matter, but not the 2014 matter.

Respondent Jeremy Lee Frederick appeared and testified on his own behalf.

Mr. Frederick is affiliated with Worldly Plumbing LLC. Neither Mr. Frederick nor Worldly Plumbing is licensed by ROC

In the 2014A-2450 matter, Mr. Frederick is charged with advertising without a license through postings made to the Yuma Craigslist Skilled Labor page on or about June 2, 2013, and May 11, May 12, May 24 and June 2, 2014.

In the 2015A-2273 matter, Mr. Frederick is charged with advertising without a license through postings made to Yuma Craigslist on July 2 and 7, and September 30, 2015.

In the 2014 matter, Cort Bacon was ROC’s investigator. His Investigation Report is in evidence as ROC exhibit 2.

Mr. Bacon’s Report shows that on July 10, 2014 he found five different advertisements for Worldly Plumbing on the Yuma Craigslist Skilled Labor page.

Mr. Bacon also found an advertisement for Worldly on its own webpage and on Angie’s List, and a BBB listing for Worldly.

On July 24, 2014, ROC sent to Mr. Frederick via certified mail a Cease and Desist Order and Civil Citation in its case number 2014-2450 (the “2014 Citation”) charging him with five violations of Ariz. Rev. Stat. section 32-1165, advertising without a license. More specifically, the 2014 Citation shows that on or about June 2, 2013, and May 11, May 12, May 24 and June 2, 2014 Mr. Frederick placed advertisements on the Yuma Craigslist site.

Through the Citation ROC assessed a civil penalty of $1500 for each violation.

Mr. Bacon’s Report shows that his attempts to serve the 2014 Citation were unsuccessful.

Mr. Bacon’s Report shows that he sent the 2014 Citation by certified mail first to an address Mr. Frederick had posted on Angie’s List as June 19, 2014, which was returned to ROC, and then to an address Worldly Plumbing had listed on its Better Business Bureau website, which was also returned to ROC.

On August 4, 2014, Mr. Bacon made the following entry in the case notes: “The Cease and Desist was returned undelivered and unserved. This case is being closed as undelivered/not served due to the 90 day jurisdiction has expired. Similar complaints against this contractor are now being pursued in new separate ROC case 2014-4218.”

Mr. Frederick did not learn that the 2014 Citation had been issued until sometime in 2020 when he filed an application for licensure.

Mr. Rhodes was ROC’s investigator in the 2015 matter, which is ROC case number 2015-2273. His Investigation Report is in evidence as ROC exhibit 14.

Mr. Rhodes’s Report shows that ROC’s investigation was opened as a follow-up to its two previous cases, numbers 2015-945 and 2014-4218.

In May, June and July 2015 Mr. Rhodes accessed various Craigslist sites and found that Mr. Frederick still had advertisements on those sites. Mr. Rhodes downloaded images on some of those dates including July 2 and 7, and September 30, 2015.

On September 30, 2015, ROC issued the 2015 Citation.

In his Report, Mr. Rhodes provides details of ROC’s attempts to serve the 2015 Citation on Mr. Frederick, which included sending it by certified mail to Mr. Rhodes at the home/business address he had provided ROC during its investigation in its case number 2015-948. That certified letter was returned as unclaimed. Mr. Rhodes then had a process server attempt to make personal service at three addresses, which attempts were unsuccessful.

Consequently, Mr. Rhodes closed the case in the 2015 matter case.

At the hearing, in support of the 2014 Citation, ROC had entered into evidence printouts of pages Mr. Bacon had downloaded from Yuma Craigslist all of which were all printed on June 10, 2014.

The page in evidence as Exhibit 7 shows it had been created eight days prior to its printing; Exhibit 8 had been created 24 hours before it was printed; Exhibit 9 had been created 29 days before printing and updated four days before printing; Exhibit 10 was created 17 days before it was printed and updated seven days before printing; and Exhibit 11 shows it was created a month before it was printed and was updated six days before printing.

In support of the 2015 Citation, ROC relied on Mr. Rhodes’s testimony and Report and a printout listing the downloaded images (or “screen captures”) from Mr. Rhodes’s investigation

Mr. Frederick does not dispute the merits of the allegations ROC makes in the 2015 Citation, but asserts that he had paid to the Yuma County Courts a financial penalty to resolve those matters. Mr. Frederick provided no documentation or other corroborating evidence to support his assertion.

The Craigslist pages at issue are offers to perform contracting services.

The Craigslist advertisements in the 2014 matter do not show that Mr. Frederick and Worldly Plumbing are not licensed contractors.

Mr. Rhodes’s Report shows that as of May 13, 2015, at least one advertisement on Yuma Craigslist did show that Mr. Frederick was not licensed by ROC.

Mr. Rhodes’s Report also shows however that Mr. Frederick may have been offering services totaling more than $1000 and that on July 2, 2015 he was offering services for which a permit was required.

Some of Mr. Frederick’s advertisements do include what purports to be a license number, but this number is related to journeyman identification card from the City of Phoenix, not a ROC license number.

Mr. Frederick has twice been convicted of misdemeanor contracting without a license.

Mr. Frederick testified that the address to which the 2014 Citation was sent was not his address, Mr. Frederick expressed his desire to take accountability going forward and that he had applied for a contractor’s license in 2020.

CONCLUSIONS OF LAW

ROC bears the burden persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(3).

A party asserting an affirmative defense, bears the burden of proving that defense. Ariz. Admin. Code § R2-19-119(B).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119(A).

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

ROC’s Citation was sent by certified mail to Mr. Frederick at the address that he and Worldly Plumbing were using on Angie’s list, and a letter was also sent to their Better Business Bureau address, which constitutes effective service of that Citation. See Ariz. Rev. Stat. § 32-1166.01(D).

The preponderance of the evidence shows that each of the eight Craigslist postings is an advertisement to provide contracting services. Ariz. Rev. Stat. § 32-1101(A)(1).

Because Mr. Frederick’s Craigslist advertisements did not include the required disclaimer or were for work requiring a permit, he does not qualify for the “handyman” exception to ROC’s licensing requirements. See Ariz. Rev. Stat. § 32-1121(A)(14).

In the 2014 Citation, ROC alleges that Mr. Frederick committed five violations of section 32-1165, but has proven only four because it did not prove that Mr. Frederick had an advertisement on Craigslist on or about June 2, 2013.

Mr. Frederick did have advertisements posted on or about May 11, May 12, May 24 and June 2, 2014, and consequently, Mr. Frederick committed four violations of Ariz. Rev. Stat. section 32-1165 by advertising for construction services for which a contractor’s license is required.

In the 2015 matter, the preponderance of the evidence shows that Mr. Frederick committed the three alleged violations of section 32-1165. Mr. Frederick did not prove that those violations were resolved in the Yuma County courts.

ROC has authority to issue to Mr. Frederick a civil penalty of between $200 and $2500 for each of his violations of section 32-1165. Ariz. Rev. Stat. § 32-1166.01(C).

ROC argues that the proposed penalty of $1500 per violation is reasonable because Mr. Frederick is a repeat offender. But all of the violations at issue occurred in 2014 and 2015 and there is no substantial evidence to show that Mr. Frederick has violated the statute since that time.

At the hearing Mr. Fredrick provided credible testimony showing that he is taking accountability for his actions, and although apparently not successful he has attempted to obtain a license. Cf. Ariz. Rev. Stat. § 32-1166.07 (authorizing waiver of all but $200 when violator subsequently obtains a license). In addition, ROC did not demonstrate that Mr. Frederick’s actions resulted in any harm to the public and to the contrary, Mr. Rhodes’s Report shows that at least one member of the public had been satisfied with his work.

Considering all the above, a more appropriate penalty is $500 per violation.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors assess against Jeremey Frederick a civil penalty of $500 for each of the seven proven violations of Ariz. Rev. Stat. section 32-1165.

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 is forty days after the date of that certification.

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-137160-45720000Done this day, July 26, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000