ALJDEC decisions subject to certification as final

2016A-637-ROC · Registrar of Contractors · 2016-05-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 27, 2016 APPEARANCES: No one appeared for Respondent; Thomas Raine, Esq. for Complainant ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On March 11, 2016, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing at 10:00 a.m. on April 27, 2016, at the Office of Administrative Hearings in Phoenix, Arizona. 2. No representative for Jimcco LLC appeared at the scheduled hearing time. The hearing was convened in Jimcco LLC’s absence at about 10:40 a.m. 3. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.[1] 4. Through the Citation and Complaint, ROC alleges that Jimcco LLC violated Ariz. Rev. Stat. section 32-1154(A)(17) by offering to perform construction services while its license was suspended. 5. Respondent Jimcco LLC, holds license number CR39.253837-D issued by ROC.[2] 6. Jimcco LLC’s license was suspended on April 1, 2015, for non- renewal. On July 2, 2015, Jimcco LLC voluntarily canceled its license. 7. Crystal Burks entered an agreement with Jimcco LLC in which Jimcco LLC was to install a new air conditioner at her residence. 8. On September 28, 2015, Ms. Burks filed a complaint with ROC alleging workmanship and other deficiencies on Jimcco LLC’s part. In her complaint, Ms. Burks asserted that the parties entered a contract on April 15, 2015, and that the work was completed on April 17, 2015. 9. After receiving Ms. Burks’ complaint, ROC issued to Jimcco LLC the Citation and Complaint. In its written Answer, Jimcco LLC asserted that the work at issue was conducted in March 2015. 10. After receiving the Answer, ROC Investigator Cliff Corlett sought to verify when the work was actually done. Mr. Corlett obtained an invoice in which Rock’s Crane Service billed Jimcco LLC for placing an air conditioner on the roof of Ms. Burks’ house on April 17, 2015. 11. At the hearing, Ms. Burks provided credible testimony that she entered the contract in April 2015. CONCLUSIONS OF LAW 1. “At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 3. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 4. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 5. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 6. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 7. Ariz. Rev. Stat. section 32-1154(A) provides that The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 17. Contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.

8. Ariz. Rev. Stat. section 32-1154(F) provides that ROC “shall impose a civil penalty of not to exceed one thousand dollars on a contractor for each violation of [Ariz. Rev. Stat. section 32- 1154] subsection A, paragraph 17.” 9. The preponderance of the evidence shows that Jimcco LLC violated Ariz. Rev. Stat. section 32-1154(A)(17) by entering a contract while its license was suspended. Consequently, ROC is require to impose a civil penalty, not to exceed $1000.00. 10. ROC requested that a civil penalty of $1000.00 be imposed. 11. Considering the facts and circumstances of this matter, including Jimcco LLC’s failure to attend the hearing, which is considered a factor in aggravation, the imposition of a $1000.00 civil penalty is appropriate. RECOMMENDED ORDER IT IS ORDERED that within thirty days of the effective date of the final Order in this matter, Jimcco LLC must pay to the Registrar of Contractors in certified funds a civil penalty of $1000.00. 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 is forty days after the date of that certification. Done this day, May 12, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] The Notice of Hearing does not provide the date the Citation and Complaint was issued. There appears to be no dispute that the Citation and Complaint was issued on February 24, 2016. [2] ROC’s website shows that Jimcco LLC’s license number is 253837. Consistent with existing policy, the number set out in the caption of the Notice of Hearing is used in this Decision.

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