ALJDEC decisions subject to certification as final

2017A-1302-CPA-ROC · Registrar of Contractors · 2017-06-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

Shane Aaron Stephenson,

Respondent

No. 2017A-1302-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 13, 2017

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

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Shane Aaron Stephenson (Respondent) is not a licensed contractor in the State of Arizona.

On or about March 9, 2017, Investigator Martha Watson was driving through Fort Mohave, Arizona when she observed an individual on the roof of a commercial building. Investigator Watson made contact with the individual who identified himself as Respondent. Investigator Watson asked Respondent to see the building permit for the project, but Respondent stated he did not have a permit. Investigator Watson informed Respondent a permit was required to reroof the commercial building. Respondent indicated the property owner purchased the asphalt shingles and denied having discussed how much he would be paid to reroof the commercial building. Respondent acknowledged he was not a licensed contractor and stated he had not been hired by a licensed contractor to complete the work.

At the conclusion of the interaction, Investigator Watson determined that Respondent had violated the provisions of A.R.S. § 32-1151 (Engaging in contracting without a license). A Cease & Desist Order was hand delivered to Respondent on March 9, 2017, for violating the provisions of A.R.S. § 32-1151. A total of $1500.00 in civil penalties was assessed.

Investigator Watson testified that Arizona contracting law allows an exemption from licensure, with certain limitations, for a “handyman.” Investigator Watson stated that Respondent’s work did not fit within the handyman exemption because reroofing a commercial building in Mohave County requires a permit. Investigator Watson also presumed that the cost of the project including materials and labor exceeded the $1,000.00 limit.

Respondent did not appear at the hearing.

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. § 32-1166(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 those factors have been established. Based on the specific and unique circumstances in this matter, the Tribunal concludes that a civil penalty of $1500.00 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. § 32-1151 and assess a civil penalty of $1500.00 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, June 13, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors