ALJDEC decisions subject to certification as final

2015A-2590-ROC · Registrar of Contractors · 2015-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 9, 2015 APPEARANCES: Richard Edgar, Attorney for Respondent; Abraham Sevilla, Respondent; John Tellier, Attorney for the Registrar of Contractors; Dan Rhodes, Registrar of Contractors witness ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ After Respondent filed an appeal from an order directing him to stop unlicensed contracting activity and imposing a civil penalty of $2,500.00, the Registrar of Contractors established that its Cease and Desist Order and Civil Citation was properly issued and the establishment of $2,500.00 as the civil penalty was appropriate. Therefore, it is recommended that this appeal be denied. FINDINGS OF FACT 1. On June 17, 2015, the Registrar of Contractors issued Respondent a Cease and Desist Order and Civil Citation. It ordered Respondent to stop all unlicensed contracting and advertising activities in the State of Arizona and it assessed a civil penalty against him in the amount of $2,500.00.[1] 2. The basis of the Cease and Desist Order and Civil Citation was a report by the Registrar of Contractors Investigation Unit.[2] It documented that, as part of a sting operation, Respondent was contacted with a request for an estimate for the installation of new cabinetry in a kitchen. Respondent provided an estimate in the amount of $3,800.00 and indicated that he would begin the work when he received half of the money down. 3. When Respondent was confronted by the investigator, he said he was taking measurements for a licensed contractor. However, a call to that contractor’s business confirmed that Respondent was not working for them. 4. Respondent did not dispute the above facts. However, his attorney argued that Respondent was solicited in this case, so there was no victim and therefore no restitution would be necessary. He argued that the Registrar of Contractors office targeted Respondent because they were aware that he had a history of contracting without a license. Based on this, he argued, the civil penalty should be reduced. 5. The Registrar of Contractors’ attorney argued that the facts are undisputed and Respondent has a history of unlicensed contracting, so the history and circumstances justify the $2,500.00 civil penalty. CONCLUSIONS OF LAW 1. This hearing was conducted in accordance with Arizona Revised Statutes (“A.R.S.”) § 41-1092.01 et seq. 2. With certain exceptions, it is unlawful to engage in contracting without a license. A.R.S. §§ 32-1151, 32-1121, and 32-1123. 3. A.R.S. § 32-1166(B) provides that the Registrar of Contractors may impose a maximum civil penalty of $2,500.00 per violation for those who engage in contracting without the proper license. 4. In this case, it was undisputed that Respondent was engaged in contracting without the proper license when he offered to do a job for over $1,000.00 when he has no contractor’s license. It was also undisputed that Respondent has engaged in the same conduct in the past. The fact that Respondent was the subject of a sting operation and did not victimize a member of the public in this instance is irrelevant because as far as he knew, he was dealing with a member of the public and the potential harm his unlicensed activities presented did not outweigh his desire to continue. Because Respondent has perpetrated the same violation in the past and was unable to reform, the Registrar of Contractors appropriately determined that increasing the penalty would increase the likelihood that Respondent will find it the merit in complying with the law in the future. 5. The evidence has established that $2,500.00 is the appropriate civil penalty.[3] RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that this appeal be denied, that the proposed civil penalty of $2,500.00 be affirmed, and that Respondent be ordered to pay $2,500.00 in certified funds to the Registrar of Contractors.

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 5 days after the date of certification. Done this day, September 23, 2015.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Exhibit 1. [2] Exhibit 2. [3] Payable in certified funds.

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