ALJDEC decisions subject to certification as final

2017A-1619-ROC · Registrar of Contractors · 2017-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

James Ray Lucas,

No. 2017A-1619-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: Tuesday, June 13, 2017 at 1:00 pm

APPEARANCES: James Ray Lucas (“Respondent”); Gloria Lucas (“Respondent’s Witness”); Dan Rhodes for the Registrar of Contractors (“Investigator Rhodes”); Thomas Raines (“Registrar’s Counsel”); and Helen Young (“ASL Interpreter” for the Respondent).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

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James Ray Lucas (“Respondent”) requested a hearing pursuant to A.R.S. 41-1092, et seq., in response to a Cease and Desist and Civil Citation issued by the Registrar of Contractors (“Registrar”) for a violation of engaging in contracting without a license. Based on the evidence in this matter, the undersigned Administrative Law Judge hereby recommends that the Registrar affirm the Cease and Desist Order and civil penalty issued to Respondent on April 20, 2017.

FINDINGS OF FACT

1. On or about March 24, 2017, the Registrar received a homeowner complaint alleging Respondent contracted without a license.

2. Investigator Rhodes reviewed the allegations of the complaint alleging Respondent and homeowner entered into an oral contract for a residential remodel project. Contract date: 12/16/2016. Amount paid: $8,590.00 (labor) and $2,397.00 (materials). Poor workmanship was alleged, as well as being an unlicensed entity.

3. Investigator Rhodes conducted a query search and found no records of active, inactive or pending license status or any previous unlicensed complaints regarding the Respondent.

4. During his investigation, Investigator Rhodes made contact with Respondent and Respondent’s Witness who admitted he was not a licensed contractor but performed work as a handyman. Investigator Rhodes noted in his narrative that Respondent showed photos from his iPad of the work performed. Notes were made by Investigator Rhodes to include, “plumbing and electrical appeared to required permits, also prohibiting a handyman from working the project” in his narrative report.

5. Investigator Rhodes substantiated the allegations that Respondent performed construction and remodeling without a license and field issued a Cease and Desist Order and Civil Citation dated April 26, 2017, for failing to comply with A.R.S. § 32-1151, contracting without a license. The proposed civil penalty was $1,500.00.

6. Respondent requested an administrative hearing and the Registrar forwarded the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing.

TESTIMONY/EVIDENCE

7. At the hearing, Investigator Rhodes testified that he investigated the matter after the Registrar received a complaint from a homeowner. The homeowner alleged various workmanship issues set forth in its complaint.

8. During his testimony, he further stated that in review of the homeowner’s documentation provided, the following checks were written by the homeowner and cashed by the Respondent:

12/28/2015 $ 612.19

01/15/2016 $ 2,000.00

03/23/2016 $ 2,930.04

04/16/2016 $ 1,560.00

07/12/2016 $ 3,998.09

10/10/2016 $ 4,926.00 (marked “paid in full”)

9. The ASL Interpreter stated on behalf of the Respondent that Respondent performs small jobs for people in the park and that what started as a paint job for the Browns soon included more tasks such as fixing drywall, new plywood on floor in kitchen as many of the mobile homes are 30 years old. He further stated that he was not aware that there are laws governing handyman projects.

10. The Registrar’s Counsel argued that it is not relevant whether Respondent was aware of the laws but rather based on the checks received, Respondent exceeded the handyman aggregate of $1,000.00 per project.

11. Respondent’s Witness testified that Respondent refunded $212.50 to homeowner. Registrar’s Counsel questioned Investigator Rhodes on whether this refund amount changes the outcome of the Citation to which he replied, no, the violation still stands because the total paid on this project is over the aggregate of $1,000.00.

12. Respondent was directed to speak with Investigator Rhodes following the hearing for further clarification on the scope of work a handyman can perform in the state of Arizona.

CONCLUSIONS OF LAW

13. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

14. 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.

16. 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.

17. 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 Registrar established by a preponderance of the evidence that Respondent contracted without a license in violation of Arizona contracting laws. Thus, the Tribunal finds the assessed civil penalty of $1,500.00 is warranted.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar affirm the finding that Respondent James Ray Lucas violated A.R.S. § 32-1151 and affirm the imposition of a civil penalty in the amount of $1,500.00 for the unlicensed contracting violation. The $1,500.00 civil penalty shall be paid in certified funds to the Registrar on or before the effective date of the 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 40 days after the date of the certification.

Done this day, June 22, 2017.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors