ALJDEC decisions subject to certification as final

2017A-2131-CPA-ROC · Registrar of Contractors · 2018-03-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

Rueben Perez, Sr.,

No. 2017A-2131-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 17, 2018 with the record held open until February 16, 2018.

APPEARANCES: Respondent Rueben Perez, Sr. appeared on behalf of himself. Assistant Attorney General Thomas Raine appeared on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

Respondent Rueben Perez, Sr. appealed a Civil Citation issued by the Arizona Registrar of Contractors for contracting without a license. The Arizona Registrar of Contractors imposed a civil penalty in the amount of $2,500. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law, and Recommend Order are made, finding violations and recommending the affirmation of an assessed civil penalty in the amount of $2,500.

FINDINGS OF FACT

On July 20, 2017, the Registrar of Contractors (“Registrar”) issued a

Notice of Hearing setting the above-captioned matter for hearing on August 29, 2017. The Notice of Hearing provides that the issues to be determined at hearing are the “charges contained in the Citation issued to Respondent and on the assessment of a civil penalty against Respondent.”

Respondent Reuben Perez, Sr. (“Mr. Perez”) is not a licensed contractor

in the State of Arizona.

On or about April 24, 2017, the Registrar received a complaint regarding

construction work performed at 26864 N. 99th Drive, Peoria, AZ 85383 (hereinafter “home”). See Exhibit 2.

In or about April of 2017, Investigator Barry Maerker (“Investigator

Maerker”) conducted an investigation in response to the complaint.

5. On or about April 28,2017, Investigator Marker visited the home. The owner of the home provided Investigator Maerker with a copy of a contract between the homeowner and Mr. Perez which lists pavers, paint for a block wall, vegetable patches, irrigation and artificial turf. The contract provides a total cost of $11,000. The contract also provides that all material labor is included. Mr. Perez signed the contract. The homeowner provided Investigator Maerker with a copy of a second handwritten contract which contained the pay schedule for the project. See Exhibit 3.

6. Investigator Maerker observed and took photos of loose concrete blocks,

shovels and a rake. The homeowner informed Investigator Maerker that Mr. Perez was in the process of performing construction work with the materials that Investigator Maerker observed. See Exhibit 4.

7. Arizona contracting law allows an exemption from licensure, with certain limitations, for a “handyman.” Mr. Perez’s work did not fit within the handyman exemption because it exceeded the $1,000.00 limit.

8. On or about June 13, 2017, a Cease & Desist Order and Civil Citation was issued to Mr. Perez, for violating Ariz. Rev. Stat. section 32-1165. A civil penalty in the amount of 2,500.00 was assessed.

9. Mr. Perez filed a timely appeal to the Cease & Desist Order and Civil Citation.

10. A hearing was held on January 17, 2018.

11. At the hearing, the Registrar requested that the record be left open approximately 30 days to allow Mr. Perez additional time to take the business-portion of the contractor’s exam. The record was held open until February 16, 2018 for the sole purpose of allowing Mr. Perez to take the exam. On February 13, 2018, the Registrar informed the tribunal that Mr. Perez would not be allowed to take the exam until July of 2018. The Registrar requested that the Administrative Law Judge issue a decision as the Registrar had allowed Mr. Perez over six months to obtain a license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See Ariz. Rev. Stat.

section 32-1101 et seq.

The Registrar bears the burden of proof to establish Respondent’s statutory

violations by a preponderance of the evidence. See Ariz. Rev. Stat. section 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 and advertising 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.

Ariz. Rev. Stat. section 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.

Ariz. Rev. Stat. section 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 Ariz. Rev. Stat. section 32-1151, Ariz. Rev. Stat. section 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

Mr. Perez contracted without a license in violation of Arizona contracting laws. Thus, the assessed civil penalty of $2,500.00 is warranted. The Tribunal concludes that a civil penalty of $2,500 for contracting without a licensee is warranted in this case.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar affirm the finding that Respondent Reuben Perez, Sr. violated Ariz. Rev. Stat. section 32-1151 and affirm the imposition of a civil penalty in the amount of $2,500.00 for the unlicensed contracting violation. The $2,500.00 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 forty (40) days from the date of certification.

Done this day, March 22, 2018

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors