ALJDEC decisions subject to certification as final

2016A-2954-ROC · Registrar of Contractors · 2017-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY

CITATION ISSUED TO:

Ramon Montoya

RESPONDENT

No. 2016A-2954-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 25, 2017

APPEARANCES: Tom Raine, Attorney for the Registrar of Contractors; Jeff Helter, Registrar of Contractors Investigator

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

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Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors.

FINDINGS OF FACT

On August 10, 2016, Registrar of Contractors Investigator Jeff Helter issued a Cease and Desist Order to Respondent for an alleged violation of A.R.S. § 32-1165 concerning advertising contracting services without a license. Respondent does not possess a license through the Arizona Registrar of Contractors.

The Cease and Desist Order proposed a civil penalty in the amount of $1,000.00 to be paid within 30 days unless a request for hearing was received in that time.

Respondent timely requested a hearing, which was set with the Arizona Office of Administrative Hearings, an independent agency authorized to conduct hearings in contested matters arising out of State regulation. Although additional time was allowed for late appearances, no one appeared at the hearing on Respondent’s behalf.

Registrar of Contractors Investigator Helter testified at the hearing that on August 9, 2016, he observed Respondent’s truck at a residence where contracting work was taking place and took a photograph of it. He found that the business belonged to Respondent, who had been warned for a violation in 2009, so he issued the Cease and Desist Order with a proposed civil penalty the following day. Investigator Helter found evidence of other advertising by Respondent as well but the Registrar of Contractors opted to charge for only one violation at this time.

The Registrar of Contractors proposed in this matter to affirm the $1000.00 civil penalty against Respondent for advertising without a license.

CONCLUSIONS OF LAW

This hearing was conducted in accordance with Arizona Revised Statutes (“A.R.S.”) § 41-1092.01 et seq. Complainant has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See Arizona Administrative Code (“A.A.C.”) R2-19-119.

Arizona law provides that it is illegal to advertise as a contractor without a license, as follows:

(A.R.S. §) 32-1165. Advertising; effect of; classification

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.

Pursuant to A.R.S. § 32-1166, the Registrar of Contractors is authorized to issue cease and desist orders and to impose civil penalties up to $2,500.00 for each violation.

The uncontroverted evidence in this matter was that Respondent was observed at a jobsite with writing on his truck offering painting services. It was also undisputed that Respondent is not a licensed contractor. Therefore, the weight of the evidence established that the Registrar of Contractors was authorized to issue its Cease and Desist Order in the amount of $1000.00.

RECOMMENDED DECISION

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the Cease and Desist Order in this matter be sustained. Respondent shall pay the $1000.00 in certified funds to the Registrar on or before the effective date of the final order in this matter.

In the event that the Administrative Law Judge Decision is certified by the Director of the Office of Administrative Hearings, the effective date of the Order is five days after the date of certification.

Done this day, February 7, 2017.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors