ALJDEC decisions subject to certification as final

2015A-2699-ROC · Registrar of Contractors · 2015-10-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 24, 2015 APPEARANCES: John Richard Blackthorn on his own behalf; John Tellier, Esq. for the Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On September 3, 2015, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Citation and Civil Penalty setting the above-captioned matter for hearing at on September 24, 2015, at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing shows that the hearing was to address the charges in the Citation issued and the assessment of a civil penalty. 3. Respondent John Richard Blackthorn appeared and testified on his own behalf, and he presented the testimony of Jerry Savage. 4. ROC presented the testimony of Martha Watson, one of its investigators. 5. On June 23, 2015, Ms. Watson received an anonymous tip to the effect that Mr. Blackthorn was contracting without a license. With the phone call were two photographs of Mr. Blackthorn and another man doing concrete work at a commercial site in Bullhead City. 6. Ms. Watson contacted the Bullhead City building department and learned that no permit was required for the work being conducted. 7. Ms. Watson went to the site and observed Mr. Savage hand an envelope to Mr. Blackthorn. The envelope contained $600.00 in payment for Mr. Blackthorn’s labor. At the hearing, Mr. Blackthorn acknowledged that he had been paid an additional $600.00 for labor at the site, which occurred over the course of six days in which about fifty yards of concrete were poured. 8. Ms. Watson approached Mr. Blackthorn, who had entered a vehicle, but Mr. Blackthorn would not tell her his name and instead told her that he was working for Mr. Savage. 9. Mr. Savage initially told Ms. Watson that he did have employees, but then said he did not. At the hearing, Mr. Savage testified that he screwed up and that he believed Mr. Blackthorn was at the hearing because he (Mr. Savage) told Ms. Watson that he had no employees. According to his testimony, Mr. Savage has had problems with ROC and he “copped an attitude” when Ms. Watson approached him. In response to a question on cross-examination, Mr. Savage stated that it was a mistake to tell Ms. Watson that he had no employees. 10. Mr. Blackthorn provided his own hand tools, but Mr. Savage provided the concrete forms (and the concrete). 11. At the hearing, Mr. Blackthorn had a W-4 form, but he acknowledged that he had had no taxes withheld from the money he was paid. When asked whether he had completed an I-9 form, he stated that he would receive a 1099 form at year’s end. When asked if that then meant that he was an independent contractor, Mr. Blackthorn replied that he was now confused because he was being paid by the hour. 12. When asked about withholding taxes, Mr. Savage replied that he would pay those. 13. Mr. Savage testified that he had contacted Mr. Blackthorn and asked if he wanted to do some concrete work, and Mr. Blackthorn stated that he was not licensed. Mr. Savage then told Mr. Blackthorn that he would pay him by the hour. Mr. Blackthorn requested $30.00 per hour and the two agreed to $25.00. 14. Mr. Savage does not have a current contractor’s license. 15. On July 8, 2015, ROC issued to Mr. Blackthorn a Cease & Desist Order in which it alleges that he violated Ariz. Admin. Code section 32-1151 and in which it assessed a civil penalty of $1500.00.

CONCLUSIONS OF LAW 1. ROC bears the burden persuasion. Ariz. Rev. Stat. § 41- 1092.07(G)(3). 2. The party asserting a claim, right, or entitlement has the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. Ariz. Admin. Code § R2-19-119(B). 3. 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). 4. 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). 5. The evidence of record does not establish that Mr. Blackthorn was an employee of Mr. Savage’s. See Ariz. Rev. Stat. § 32- 1121(11). 6. The preponderance of the evidence shows that Mr. Blackthorn engaged in work for which a contractor’s license is required. Ariz. Rev. Stat. § 32-1151. 7. Because Mr. Blackthorn has violated Ariz. Rev. Stat. section 32- 1151, he is subject to a civil penalty. Ariz. Rev. Stat. § 32- 1166. 8. ROC asserted that Mr. Blackthorn has previous violations, did not provide substantial evidence as to the nature of those alleged violations.[1] 9. Considering the facts and circumstances of this matter, particularly that Mr. Savage sought out Mr. Blackthorn and hired him knowing that he did not have a license, the minimum civil penalty of $200.00 is appropriate. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995)(purpose of licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors).

ORDER IT IS ORDERED that on or before thirty days after the effective date of the final order in this matter John Richard Blackthorn must pay to the Registrar of Contractors $200.00 in certified funds. 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. Done this day, October 9, 2015.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Ms. Watson’s Investigation Unit the report shows only that have been prior complaints against Mr. Blackthorn and that the last complaint was closed for lack of evidence.

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