ALJDEC decisions subject to certification as final

2016A-1092-ROC-rhg · Registrar of Contractors · 2016-12-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

James Flynn

RESPONDENT

No. 2016A-1092-ROC-rhg

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 30, 2016

APPEARANCES: James Flynn, Complainant; Tom Kaine, Registrar of Contractors Attorney; Mike Nation, Investigator for Registrar of Contractors; Robert Tarics, homeowner (telephonic)

ADMINISTRATIVE LAW JUDGE: Amy Foster

_____________________________________________________________________

Respondent James Flynn is not a licensed contractor in the State of Arizona.

On April 1, 2016, the Registrar received a complaint from Robert Tarics regarding Respondent. The complaint alleged that Respondent entered into a contract to refinish and seal marble tile flooring for $609.79 including labor and materials. The first part of the job occurred from January 26, 2016 through January 28, 2016. Tarics issued Respondent a check for $609.79 on January 28, 2016.

Tarics alleged Respondent failed to complete the work, and the work done did not meet minimum workmanship standards. Respondent alleges Tarics walked on the work and ruined the sealant. The work needed to be refinished and resealed. Respondent agreed to redo the work and restarted the work on February 8, 2016. Respondent was issued checks for $465.07 on February 12, 2016; $186.58 on February 15, 2016; $85.17 on February 16, 2016; $52.58 on February 17, 2016; and $167.12 on February 18, 2016. Both Respondent and Tarics believed one of the checks from February 15th through 18th was for fixing a door but could not remember which it was. The total of all the checks is $1566.31. Therefore, even without the disputed check, Respondent is still well over $1000 in materials and labor.

According to Mr. Tarics, he was unsatisfied with the work performed and, on or about March 24, 2016, he contacted Respondent and demanded that Respondent return to correct his mistakes. According to Mr. Tarics, Respondent would not admit fault and wanted more money up front if he agreed to come back to do the work.

On June 6, 2016, Investigator Nation contacted Respondent regarding the complaint. Respondent stated that he agreed to perform the work for Mr. Tarics for $60.00 per hour. Respondent acknowledged he was paid about $1,556.31 in total for the job, but he only netted $420.00 and the rest of the payment was spent on materials and equipment.

Investigator Nation testified that Arizona contracting law allows an exemption from licensure, with certain limitations, for a “handyman.” Investigator Nation stated that Respondent’s work did not fit within the handyman exemption because it exceeded the $1,000.00 limit. Investigator Nation also testified that although Respondent had left the job and then returned for remedial efforts, it was considered one project under the handyman exemption because the project was to “finish tile & seal”.

Investigator Nation determined that Respondent had violated the provisions of A.R.S. § 32-1151 (Engaging in contracting without a license). A Cease & Desist Order was sent via certified mail to Respondent on June 6, 2016, for violating the provisions of A.R.S. § 32-1151. A total of $1,500.00 in civil penalties was assessed.

At hearing, Investigator Nation testified that in 2007, the Registrar had received two prior complaints against Respondent for contracting without a license. Respondent was found to be guilty of contracting without a license in both of those complaints. Respondent further testified at the hearing that he was aware of the $1000 handyman exemption but that he felt bad for Tarics and he was trying to “do him a favor”.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The Registrar bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); 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). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

Arizona contracting law prohibits a person from acting as a contractor without a license. The Registrar can order a person who performs contracting without a license and who is not exempt from licensure to cease and desist such activity and may impose a civil penalty of between $200.00 and $2,500.00 for each violation, but not more than $2,500.00 per day.

A.R.S. § 32-1151 provides as follows:

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.

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 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. § 32-1166(A) authorizes the Registrar to assess “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.” With respect to the appropriate amount of civil penalties for violations of A.R.S. § 32-1151, A.R.S. § 32-1166(A) required the Registrar to “adopt rules covering the assessment of a civil penalty that give due consideration to the gravity of the violation and any history of previous violations.” Pursuant to this directive, the Registrar adopted A.A.C. R4-9-131.

The evidence established a violation of Arizona contracting laws by a preponderance of the evidence. Respondent’s credible testimony detailed that the original contract for the project was for $609.79 paid on January 28, 2016. The February payments were to remedy the original project and brought the total above $1000.00.

Thus, the assessed civil penalty of $1,500.00 is affirmed.

RECOMMENDED ORDER

Based upon the foregoing, it is recommended that the Registrar affirms the decision to assess a civil penalty in the amount of $1,500.00.

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 shall be forty (40) days from the date of certification.

Done this day, December 30, 2016.

/s/ Amy Foster

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors