ALJDEC decisions subject to certification as final

2016A-4690-CPA-ROC · Registrar of Contractors · 2017-04-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

Roman Francisco Morales

RESPONDENT

No. 2016A-4690-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 28, 2017

APPEARANCES: Respondent Roman Francisco Morales appeared on his own behalf. The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

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

In late October 2016 or early November 2016, Manuel Bermudez, Investigator with the Registrar of Contractors (Registrar), was reviewing ads on Craigslist and discovered a posting for Gila Landscaping Svc. that included painting and decorative rock installation as services it could perform. The Craigslist post did not include the statement that Gila Landscaping Svc. was not a licensed contractor.

Investigator Bermudez searched the Registrar database and determined that Gila Landscaping Svc. was not a licensed contractor. Investigator Bermudez then contacted the telephone number in the listing and advised that Respondent that the Registrar’s regulations require that he include the statement “Not a licensed contractor” in any advertising he does on Craigslist.

On or about November 23, 2016, Investigator Bermudez conducted a follow-up review Respondent’s ads on Craigslist. At that time, Investigator Bermudez located an ad that had been published on November 14, 2016, that did not include the statement “Not a licensed contractor.”

Investigator Bermudez determined that Respondent had violated the provisions of 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. § 32-1165. A total of $1,000.00 in civil penalties was assessed.

On November 29, 2016, Investigator Bermudez contacted Respondent regarding his advertisements on Craigslist. Respondent acknowledged their earlier conversation regarding the ads. Respondent tried to explain that Craigslist ads did not expire until 45 days after they were posted and Investigator Bermudez must have located one of the older ads rather than the new ones he put up.

Investigator Bermudez testified that had he found any new ads that contained the statement “Not a licensed contractor,” he would not have issued a civil penalty. Rather, the listing he found was posted after his discussion with Respondent and still did not contain the statement required.

Respondent testified that when you log onto Craigslist, you have the option to edit, delete, or renew your posting and he must have accidentally renewed the ad in question rather than editing or deleting it. Respondent also indicated that he had gotten a new phone, and no longer had the password to the email address used to post the ad, so he was no longer able to access the email sent to him that would take him to the list of ads he had posted, so he could delete them from there. Respondent stated that he had since let all of the ads expire and has not posted any new ads or performed any more work for fear of running afoul of the Registrar’s statutes and regulations.

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).

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.

The Registrar can order a person who advertises that he is able to perform contracting work 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. § 32-1166(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.”

The evidence established a violation of Arizona contracting laws. Based on the specific and unique circumstances in this matter, the Tribunal concludes that a civil penalty of $1,000.00 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. § 32-1165 and the assessment of 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, April 17, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors