ALJDEC decisions subject to certification as final

2015A-3822-ROC · Registrar of Contractors · 2016-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 28, 2016 APPEARANCES: No one appeared for Respondent; Tom Raine, Esq. for the Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On October 9, 2015, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Citation and Civil Penalty setting the above-captioned matter for hearing on November 20, 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. The matter was continued and was rescheduled to begin at 8:00 a.m. January 28, 2016. 4. Respondent Edgar Villalobos Huante did not appear at 8:00 a.m. on January 28, 2016, and the matter was convened in his absence at about 8:20. 5. ROC presented the testimony of Daniel Rhodes, one of its investigators. 6. On September 9, 2015, Mr. Rhodes received from the City of Yuma information showing that Mr. Villalobos had applied for a permit to install a large awning-type structure on a property owned by Jeremy White. 7. Mr. Rhodes investigated the matter, during which he contacted Mr. Villalobos. 8. Mr. Villalobos acknowledged that in addition to the awning, he had provided other work at Mr. White’s property. This other work included concrete work and converting a shed to a garage-like structure. 9. ROC had submitted into evidence cancelled checks from Mr. White to Mr. Villalobos for work at the property. Mr. Rhodes determined that these checks totaled $12,588.00. 10. Mr. Villalobos is a member of the Unique Concepts LLC, which cashed checks from Mr. White that were written to Mr. Villalobos. 11. In addition, ROC had submitted into evidence other cancelled checks that Mr. White had written to individuals who Mr. Villalobos sent to the property to do electrical, plumbing and other work on his behalf. 12. ROC’s records show that Mr. Villalobos was previously issued a Cease and Desist Order for advertising without a license. 13. On September 17, 2015, ROC issued to Mr. Villalobos a Cease & Desist Order and Citation in which ROC alleges that Mr. Villalobos violated Ariz. Rev. Stat. 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. 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."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 8. Ariz. Rev. Stat section 32-1151 provides that: 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.

9. The preponderance of the evidence shows that Mr. Villalobos engaged in work for which a contractor’s license is required. Ariz. Rev. Stat. § 32-1151. Because Mr. Villalobos has violated Ariz. Rev. Stat. section 32-1151, he is subject to a civil penalty. Ariz. Rev. Stat. § 32-1166. 10. Considering the facts and circumstances of this matter, the requested civil penalty of $1500.00 is appropriate.

ORDER IT IS ORDERED that on or before thirty days after the effective date of the final order in this matter Edgar Villalobos Huante must pay to the Registrar of Contractors $1500.00 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, January 28, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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