ALJDEC decisions subject to certification as final

2016A-3966-CPA-ROC · Registrar of Contractors · 2017-03-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

Vernon William Firestone

RESPONDENT.

No. 2016A-3966-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 13, 2017

APPEARANCES: Respondent Vernon William Firestone appeared on his own behalf. The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

Respondent appealed a Civil Citation issued by the Registrar of Contractors (Registrar) for contracting without a license. The Civil Citation imposed aggregate civil penalties in the amount of $2500.00. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law, and Recommend Order are made, finding a violation and recommending assessment of a $ civil penalty.

FINDINGS OF FACT

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

On or about October 11, 2016, the Registrar received a complaint from Jan Schmaling regarding Vernon William Firestone (Respondent). The complaint alleged that Respondent entered into a contract to paint the exterior of his home for $3,300.00 and included a copy of a handwritten estimate and a business card for Yavapi Home Repair identifying Complainant as the contact person.

On or about December 1, 2016, Investigator James Vildusea contacted Mr. Schmaling regarding the complaint. Mr. Schmaling stated that he had been introduced to Respondent through a neighbor and had previously hired Respondent to perform work on a patio earlier in the year. Mr. Schmaling stated that he Respondent drafting the contract in front of him and he paid Respondent more than $1,000.00. Mr. Schmaling indicated that Respondent failed to paint the interior of the front door.

On or about December 1, 2016, Investigator Vildusea attempted to contact Respondent, but was unable to leave a message as the voicemail was full.

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

Investigator Vildusea noted that Respondent had a prior Cease and Desist Order issued in 2012 for contracting without a license.

Investigator Vildusea 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 November 28, 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.

Respondent testified that he was working for Mr. Schmaling on an hourly basis and that Mr. Schmaling was aware that Respondent was not a licensed contractor. Respondent stated that he was not aware of the $1,000.00 limit for the handyman exemption. Respondent also disputed that he had contracted to paint the interior of the front door. Respondent asserted that the prior issue in 2012 was regarding a sign on his truck, which he removed. Respondent testified that he was attempting to obtain a license from the Registrar, but he had been advised it would cost approximately $2,900.00, which he could not afford at that time.

The contract included in the complaint from Mr. Schmaling had the comment “Restain front door.” No mention was made in the contract of the interior of the front door. While it is possible Mr. Schmaling understood “Restain front door” to mean the interior and exterior of the door, it is equally possible that Respondent understood it to mean only the exterior.

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. As to the aggravating factors identified in A.A.C. R4-9-131, none of the aggravating factors are present in this matter. Thus, the assessed civil penalty of $2,500.00 is excessive in this circumstance. Based on the specific and unique circumstances in this matter, the Tribunal concludes that a civil penalty of $500.00 per violation, or $1,000.00 total is warranted in this case.

RECOMMENDED ORDER

Based upon the foregoing, it is recommended that the Registrar affirm the finding that Respondent violated A.R.S. § 32-1151, reverse the decision to assess a civil penalty in the amount of $2,500.00, and assess a civil penalty of $1,000.00 to be paid in certified funds to the Registrar on or before the effective date of the Registrar’s 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, March 28, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors