ALJDEC decisions subject to certification as final

2016A-2550-ROC · Registrar of Contractors · 2016-11-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY

CITATION ISSUED TO:

Jesus G Cruz

RESPONDENT

No. 2016A-2550-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 7, 2016

APPEARANCES: Respondent did not appear. The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

Respondent appealed a Civil Citation issued by the Registrar of Contractors for contracting and advertising without a license. The Civil Citation imposed aggregate civil penalties in the amount of $2,500.00. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law, and Recommend Order are made, finding violations and recommending the affirmation of an assessed civil penalty in the amount of $2,500.00.

FINDINGS OF FACT

Background

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

On or about July 18, 2016, the Registrar of Contractors (hereinafter “Registrar”) received a complaint from Timothy Curtis (hereinafter “Mr. Curtis”) regarding Building Consultants of Arizona and Respondent, Jesus Cruz. The complaint alleged that Respondent entered into a contract to repair the roof of a house for $1,500.00 and included a copy of a business card for Building Consultants of Arizona.

On or about July 26, 2016, Investigator Rodney Hamilton (hereinafter “Investigator Hamilton”) contacted Mr. Curtis regarding the complaint. Mr. Curtis told Investigator Hamilton that he was the owner of Metric Roofing. Mr. Curtis said that he received a phone call from Mary Vasquez (hereinafter “Ms. Vasquez”), inquiring about the roof repair completed on her home. Mr. Curtis said that Ms. Vasquez told him that Respondent inspected her home and represented himself as Metric Roofing. However, Respondent completed the work on his own. Mr. Curtis stated that Ms. Vasquez told him that Respondent always arrived at her residence in a Metric Roofing van. Mr. Curtis also stated that Ms. Vasquez told him that she paid Respondent $1,500, but the work was not performed properly. Mr. Curtis told Investigator Hamilton that Respondent was employed by Metric as a customer service salesman. However, Respondent would perform the inspection as Metric Roofing but he would complete the work himself and was paid directly. Metric Roofing discovered that Jesus Cruz had done this three times and was subsequently terminated.

On or about August 12, 2016, Investigator Hamilton contacted Ms. Vasquez regarding the complaint. Ms. Vasquez said that she contacted Metric Roofing because she wanted her roof repaired. On September 25, 2015, Jesus Cruz came to Ms. Vasquez’s home in a truck with the name “Metric Roofing” displayed on the side. Ms. Vasquez said that Jesus Cruz inspected her roof and gave her a proposal to repair the roof for $1,500. Ms. Vasquez stated that Respondent came to her home and performed the roof repair on November 13, 2015. Subsequently, Ms. Vasquez began experiencing leaks in her roof. When Ms. Vasquez called Metric Roof to inquire about the situation, Metric Roofing was unable to find the invoice. Later, Metric Roofing discovered that Respondent performed the job on his own while using Metric Roofing’s truck.

Investigator Hamilton testified that Arizona contracting law allows an exemption from licensure, with certain limitations, for a “handyman.” Investigator Hamilton stated that Respondent’s work did not fit within the handyman exemption because it exceeded the $1,000.00 limit.

Investigator Hamilton testified that the business card of an unlicensed contractor should state that the contractor is unlicensed. The business card that Respondent provided to Ms. Vasquez did not state that Respondent was an unlicensed contractor.

Investigator Hamilton testified that he conducted a background investigation to determine whether Respondent had a license. Investigator Hamilton found that Respondent and Building Consultants of Arizona did not have contracting licenses.

Investigator Hamilton determined that Respondent had violated the provisions of A.R.S. § 32-1151 (Engaging in contracting without a license) and A.R.S. § 32-1165 (Advertising without a license). A Cease & Desist Order was issued to Respondent on August 12, 2016, for violating the provisions of A.R.S. § 32-1151 and A.R.S. § 32-1165. A total of $2,500.00 in civil penalties was assessed.

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 and advertising 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 Registrar established by a preponderance of the evidence that Respondent contracted and advertised without a license in violation of Arizona contracting laws. Thus, the assessed civil penalty of $2,500.00 is warranted. The Tribunal concludes that a civil penalty of $1,500 for contracting without a licensee and $1,000 for advertising without a license is warranted in this case.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar affirm the finding that Respondent Jesus G. Cruz violated A.R.S. § 32-1151 and A.R.S. § 32-1165 and affirm the imposition of a civil penalty in the amount of $1,500.00 for the unlicensed contracting violation and $1,000 for the advertising violation. The $2,500.00 civil penalty shall be paid in certified funds to the Registrar on or before the effective date of the final order in this matter.

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, November 28, 2016.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors