ALJDEC decisions subject to certification as final
2017A-1642-CPA-ROC-RHG2 · Registrar of Contractors · 2018-02-01
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Registrar of Contractors,
COMPLAINANT,
v.
Tiffanie Ann Murray
RESPONDENT.
No. 2017A-1642-CPA-ROC-RHG2
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 12, 2018
APPEARANCES: Respondent Tiffanie Ann Murray appeared on behalf of herself. Assistant Attorney General Thomas Raine appeared on behalf of the Registrar of Contractors.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On November 21, 2017, the Arizona Registrar of Contractors (“Registrar”) issued a Notice of Rehearing and Complaint setting this matter for hearing on August January 12, 2018 at the Office of Administrative Hearings in Phoenix, Arizona.
The notice of hearing provides, “The Rehearing shall address the Registrar’s November 13, 2017 Final Administrative Decision and Order for a written decision which : (1) addresses the October 3, 2017 re-hearing; and (2) determines whether each of the March 27, 2017 Cease and Desist Order and the April 7, 2017 Desist Order and Civil Citation should upheld.
A rehearing was held on January 12, 2018. The Registrar presented the
testimony of Investigator Mike Nation and submitted exhibits 1 through 14. Respondent Tiffanie Ann Murray testified on her own behalf and offered the testimony of her husband Paul LeChance.
On March 27, 2017, the Registrar issued Cease and Desist Order to
unlicensed respondent Tiffanie Ann Murray DBA Your Coating Guys. The March 27, 2017 Cease and Desist Order states, “The Registrar has reasonable cause to believe that you are acting as an unlicensed contractor in violation of A.R.S. § 32-1151 and/or A.R.S. § 32-1165. As authorized by A.R.S. § 32-1166, the Registrar orders you to immediately cease and desist all unlicensed contracting and advertising in the State of Arizona.”
On April 7, 2017, Ms. Murray was listed as the “Registrant Name” of a
website with a domain name “YOURCOATINGSGUYS.COM.” The website advertised construction services of Your Coating Guys. However, the website did not disclose, “Not a Licensed Contractor.” The website also contained the language, “Your Coatings Guys is a Division of Desert Rock Building and Remodeling AZ ROC 272425.”
6. On April 7, 2017 the Registrar issued a Civil Citation which provides, “Respondent Tiffanie Ann Murray violated Ariz. Rev. Stat. 32-1165, Advertising without a License, by not disclosing or declaring her unlicensed status including the phrase, “Not a Licensed Contractor” on an internet advertisement for, Your Coating Guys, for the listed Internet website [YOUR COATINGGUYS.COM]. For this violation, the Registrar asses a civil penalty of $1,000 against the Respondent.”
7. On March 27, 2017, the Registrar issued a Cease and Desist Order to
unlicensed respondent Tiffanie Ann Murray DBA Polished Concrete of AZ. The March 27, 2017 Cease and Desist Order states, “The Registrar has reasonable cause to believe that you are acting as an unlicensed contractor in violation of A.R.S. § 32-1151 and/or A.R.S. § 32-1165. As authorized by A.R.S. § 32-1166, the Registrar orders you to immediately cease and desist all unlicensed contracting and advertising in the State of Arizona.”
8. On April 7, 2017, Ms. Murray was listed as the “Registrant Name” of a
website with a domain name “POLISHEDCONCRETEOFAZ.COM.” The website advertised construction services of Polished Concrete of AZ. However, the website did not disclose, “Not a Licensed Contractor.” The website also contained the language,
“ ‘POLISHED CONCRETE OF AZ’ IS A DIVISION OF DESERT ROCK BUILDING AND REMODELING AZ ROC 272425.
9. On April 7, 2017 the Registrar issued a Civil Citation which provides, “Respondent Tiffanie Ann Murray violated Ariz. Rev. Stat. 32-1165, Advertising without a License, by not disclosing or declaring her unlicensed status including the phrase, “Not a Licensed Contractor” on an internet advertisement for, Polished Concrete of AZ, for the listed Internet website [POLISHEDCONCRETEOFAZ.COM]. For this violation, the Registrar asses a civil penalty of $1,000 against the Respondent.”
10. On March 27, 2017, the Registrar issued a Cease and Desist Order to unlicensed respondent Tiffanie Ann Murray DBA Mother In Law Suites. The March 27, 2017 Cease and Desist Order states, “The Registrar has reasonable cause to believe that you are acting as an unlicensed contractor in violation of A.R.S. § 32-1151 and/or A.R.S. § 32-1165. As authorized by A.R.S. § 32-1166, the Registrar orders you to immediately cease and desist all unlicensed contracting and advertising in the State of Arizona.”
11. On April 7, 2017, Ms. Murray was listed as the “Registrant Name” of a website with a domain name “MOTHERINLAWSUITES.COM.” The website advertised construction services of Mother-In-Law Suites. However, the website did not disclose, “Not a Licensed Contractor.” The website also contained the language, “AZ ROC 272425.”
12. On April 7, 2017 the Registrar issued a Civil Citation which provides, “Respondent Tiffanie Ann Murray violated Ariz. Rev. Stat. 32-1165, Advertising without a License, by not disclosing or declaring her unlicensed status including the phrase, “Not a Licensed Contractor” on an internet advertisement for, Mother in Law Suites, for the listed Internet website [MOTHERINLAWSUITES.COM]. For this violation, the Registrar asses a civil penalty of $1,000 against the Respondent.”
13. On April 7, 2017 the Registrar issued a Civil Citation which provides, “Respondent Tiffanie Ann Murray violated Ariz. Rev. Stat. 32-1165, Advertising without a License, by not disclosing or declaring her unlicensed status including the phrase, “Not a Licensed Contractor” on an internet advertisement for, Acid Stain of AZ, for the listed Internet website [ACIDSTAINOFAZ.COM]. For this violation, the Registrar asses a civil penalty of $1,000 against the Respondent.”
14. On March 27, 2017, the Registrar issued a Cease and Desist Order to unlicensed respondent Tiffanie Ann Murray DBA Decorative Concrete Coatings of Arizona. The March 27, 2017 Cease and Desist Order states, “The Registrar has reasonable cause to believe that you are acting as an unlicensed contractor in violation of A.R.S. § 32-1151 and/or A.R.S. § 32-1165. As authorized by A.R.S. § 32-1166, the Registrar orders you to immediately cease and desist all unlicensed contracting and advertising in the State of Arizona.”
15. On April 7, 2017, Ms. Murray was listed as the “Registrant Name” of a website with a domain name “DECORATIVECONCRETECOATINGSOFAZ.COM.” The website advertised construction services. However, the website did not disclose, “Not a Licensed Contractor.” The website also contained the language, “Decorative Concrete Coatings is a Division of Desert Rock Building and Remodeling AZ ROC 272425.”
16. On April 7, 2017 the Registrar issued a Civil Citation which provides, “Respondent Tiffanie Ann Murray violated Ariz. Rev. Stat. 32-1165, Advertising without a License, by not disclosing or declaring her unlicensed status including the phrase, “Not a Licensed Contractor” on an internet advertisement for, Decorative Concrete Coatings of AZ, for the listed Internet website [DECORATIVECONCRETECOATINGS OFAZ.COM]. For this violation, the Registrar asses a civil penalty of $1,000 against the Respondent.”
17. On March 27, 2017, the Registrar issued a Cease and Desist Order to unlicensed respondent Tiffanie Ann Murray DBA Acid Stain of AZ. The March 27, 2017 Cease and Desist Order states, “The Registrar has reasonable cause to believe that you are acting as an unlicensed contractor in violation of A.R.S. § 32-1151 and/or A.R.S. § 32-1165. As authorized by A.R.S. § 32-1166, the Registrar orders you to immediately cease and desist all unlicensed contracting and advertising in the State of Arizona.”
18. On April 7, 2017, Ms. Murray was listed as the “Registrant Name” of a website with a domain name “ACIDSTAINOFAZ.COM.” The website advertised construction services. However, the website did not disclose, “Not a Licensed Contractor.” The website also contained the language, “ ‘Acid Stain of AZ’ Is a division of Desert Rock Building and remodeling Az Roc 272425.”
19. On April 7, 2017 the Registrar issued a Civil Citation which provides, “Respondent Tiffanie Ann Murray violated Ariz. Rev. Stat. 32-1165, Advertising without a License, by not disclosing or declaring her unlicensed status including the phrase, “Not a Licensed Contractor” on an internet advertisement for, Acid Stain of AZ, for the listed Internet website [ACIDSTAINOFAZ.COM]. For this violation, the Registrar asses a civil penalty of $1,000 against the Respondent.”
20. On March 27, 2017, the Registrar issued a Cease and Desist Order to unlicensed respondent Tiffanie Ann Murray DBA Southwest Pavestone. The March 27, 2017 Cease and Desist Order states, “The Registrar has reasonable cause to believe that you are acting as an unlicensed contractor in violation of A.R.S. § 32-1151 and/or A.R.S. § 32-1165. As authorized by A.R.S. § 32-1166, the Registrar orders you to immediately cease and desist all unlicensed contracting and advertising in the State of Arizona.”
21. On April 7, 2017, Ms. Murray was listed as the “Registrant Name” of a website with a domain name “SOUTHWESTPAVESTONE.COM.” The website advertised construction services. However, the website did not disclose, “Not a Licensed Contractor.” The website also contained the language, “Your Coatings Guys is a Division of Desert Rock Building and Remodeling AZ ROC 272425.”
22. On April 7, 2017 the Registrar issued a Civil Citation which provides, “Respondent Tiffanie Ann Murray violated Ariz. Rev. Stat. 32-1165, Advertising without a License, by not disclosing or declaring her unlicensed status including the phrase, “Not a Licensed Contractor” on an internet advertisement for, Southwest Pavestone, for the listed Internet website [SOUTHWESTPAVESTONE.COM]. For this violation, the Registrar asses a civil penalty of $1,000 against the Respondent.”
23. On March 27, 2017, the Registrar issued a Cease and Desist Order to unlicensed respondent Tiffanie Ann Murray DBA Decorative Concrete of Scottsdale. The March 27, 2017 Cease and Desist Order states, “The Registrar has reasonable cause to believe that you are acting as an unlicensed contractor in violation of A.R.S. § 32-1151 and/or A.R.S. § 32-1165. As authorized by A.R.S. § 32-1166, the Registrar orders you to immediately cease and desist all unlicensed contracting and advertising in the State of Arizona.”
24. On April 7, 2017, Ms. Murray was listed as the “Registrant Name” of a website with a domain name “DECORATIVECONCRETEOFSCOTTSDALE.COM.” The website advertised construction services. However, the website did not disclose, “Not a Licensed Contractor.” The website also contained the language, “ ‘Decorative Concrete of Scottsdale’ is a Division of Desert Rock Building and Remodeling AZ ROC 272425.”
25. On April 7, 2017 the Registrar issued a Civil Citation which provides, “Respondent Tiffanie Ann Murray violated Ariz. Rev. Stat. 32-1165, Advertising without a License, by not disclosing or declaring her unlicensed status including the phrase, “Not a Licensed Contractor” on an internet advertisement for, Decorative Concrete of Scottsdale, for the listed Internet website [DECORATIVECONCRETEOFSCOTTSDALE.COM]. For this violation, the Registrar asses a civil penalty of $1,000 against the Respondent.”
26. On March 27, 2017, the Registrar issued a Cease and Desist Order to unlicensed respondent Tiffanie Ann Murray DBA Cool Concrete Coatings. The March 27, 2017 Cease and Desist Order states, “The Registrar has reasonable cause to believe that you are acting as an unlicensed contractor in violation of A.R.S. § 32-1151 and/or A.R.S. § 32-1165. As authorized by A.R.S. § 32-1166, the Registrar orders you to immediately cease and desist all unlicensed contracting and advertising in the State of Arizona.”
27. On April 7, 2017, Ms. Murray was listed as the “Registrant Name” of a website with a domain name “COOLCONCRETECOATINGS.COM.” The website advertised construction services. However, the website did not disclose, “Not a Licensed Contractor.” The website also contained the language, “ ‘Cool Concrete Coatings’ is a Division of Desert Rock Building and Remodeling AZ ROC 272425.”
28. On April 7, 2017 the Registrar issued a Civil Citation which provides, “Respondent Tiffanie Ann Murray violated Ariz. Rev. Stat. 32-1165, Advertising without a License, by not disclosing or declaring her unlicensed status including the phrase, “Not a Licensed Contractor” on an internet advertisement for, Cool Concrete Coatings, for the listed Internet website [COOLCONCRETECOATINGS.COM]. For this violation, the Registrar asses a civil penalty of $1,000 against the Respondent.”
29. On March 27, 2017, the Registrar issued a Cease and Desist Order to unlicensed respondent Tiffanie Ann Murray. The March 27, 2017 Cease and Desist Order states, “The Registrar has reasonable cause to believe that you are acting as an unlicensed contractor in violation of A.R.S. § 32-1151 and/or A.R.S. § 32-1165. As authorized by A.R.S. § 32-1166, the Registrar orders you to immediately cease and desist all unlicensed contracting and advertising in the State of Arizona.”
30. On April 7, 2017, Ms. Murray was listed as the “Registrant Name” of a website with a domain name “CONCRETECONTRACTORAZ.COM.” The website advertised construction services. However, the website did not disclose, “Not a Licensed Contractor.” The website also contained the language, “ ‘Concrete Contractors Az’ is a Division of Desert Rock Building & remodeling Az Roc 272425.”
31. On April 7, 2017 the Registrar issued a Civil Citation which provides, “Respondent Tiffanie Ann Murray violated Ariz. Rev. Stat. 32-1165, Advertising without a License, by not disclosing or declaring her unlicensed status including the phrase, “Not a Licensed Contractor” on an internet advertisement for, Stamped Concrete Coatings, for the listed Internet website [STAMPEDCONCRETECOATINGS.COM]. For this violation, the Registrar asses a civil penalty of $1,000 against the Respondent.”
32. On March 30, 2017, Paul Le Chance, Ms. Murray’s husband, received all of the March 27, 2017 Cease and Desist Orders by certified mail.
Testimony of Tiffanie Ann Murray
33. Ms. Murray testified that she is not registered with Go Daddy and did not create, maintain or pay for the websites which are the subject of the Cease and Desist and Civil Penalty Order. However, in her closing argument, Ms. Murray stated that a domain name does not represent an entity. Ms. Murray contended that the contracts were signed with a licensed contractor. Ms. Murray also stated, “I don’t believe that we acted as an uncontracted contract.”
34. I do not find Ms. Murray’s testimony to be credible.
Testimony of Paul LeChance
35. Paul LeChance testified he created and maintained the websites which are the subject of the Cease and Desist and Civil Penalty Orders. Mr. LeChance testified that his wife, Tiffanie Ann Murray, did not create nor maintain the websites.
Mr. LeChance stated that the Registrar was going after his wife to get to him.
Mr. LeChance testified that he providing advertising services for Desert Rock and Remodeling, LLC. He stated that the QP, Luther Johnson, was not at the hearing siting where he was siting because if he was, he would go to jail. He stated that Luther Johnson lied to the Registrar. Mr. LeChance testified that he had full permission to sue Desert Rock’s license because he was advertising for Desert Rock. Mr. LeChance testified that he and Desert Rock were business partners. Mr. LeChance also stated that he should be receiving 1099 tax forms from Desert Rock.
36. Mr. LeChance testified that he listed his wife’s name in the Registrant name, etc. section of the websites because he originally created the website for Murray & Sons. Tiffanie Ann Murray is a member of Murray & Sons. Murray & Son’s contractor’s license was revoked in 2015. Mr. LeChance testified that when he began doing advertising for businesses, he never chanced the registrant or tech name.
37. I do not find Mr. LeChance’s testimony to be credible.
38. Ms. Murray did not provide written evidence to support her or her husband’s testimony.
CONCLUSIONS OF LAW
ROC bears the burden persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(3).
The party asserting a claim, right, or entitlement has the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. Ariz. Admin. Code § R2-19-119(B).
The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119(A).
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).
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.").
“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).
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).
Ariz. Rev. Stat section 32-1151 provides that:
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.
The preponderance of the evidence shows that Ms. Murray engaged in work for which a contractor’s license is required. The testimony provided by Ms. Murray and Mr. LeChance was self-serving and uncorroborated. Ariz. Rev. Stat. § 32-1151. Because Mr. Murray has violated Ariz. Rev. Stat. section 32-1151, she is subject to a civil penalty. Ariz. Rev. Stat. § 32-1166.
Considering the facts and circumstances of this matter, the requested civil penalty of $10,000.00 is appropriate.
ORDER
IT IS ORDERED that the March 27, 2017 Cease and Desist Orders are upheld.
IT IS FURTHER ORDERED that on or before thirty days after the effective date of the final order in this matter Tiffanie Ann Murray must pay to the Registrar of Contractors $10,000.00 in certified funds.
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.
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors