ALJDEC decisions subject to certification as final

2017A-2359-CPA-ROC · Registrar of Contractors · 2018-09-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

Daniel Taft, Sr.

Respondent.

No. 2017A-2359-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 11, 2018

APPEARANCES: Respondent Daniel Taft, 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

_____________________________________________________________________

FINDINGS OF FACT

1. In 2015, Respondent Daniel Taft, Sr. (“Mr. Taft”) was the Director,

President, Secretary, and Treasurer of CG. See Exhibit 9.

2. In 2015, Computer Guys USA (“CG”) submitted an invoice to Cruisers Route 66 Café (“Cruisers Café”) for computer related work and the installation of wire and camera at Cruisers Café. The line item charge for the wire and camera installation was $3,750. At the time, CG nor Mr. Taft held a contractor’s license in the state of Arizona.

3. CG hired Keith Kircher to install the camera and wire. Mr. Taft paid Keith Kircher $2,500 for the installation.

4. On May 30, 3017, the Arizona Registrar of Contractors (“Registrar”) issued a Cease & Desist Order and Civil Citation to Mr. Taft to cease and desist all unlicensed contracting and advertising in the State of Arizona. See Exhibit 1. The Registrar alleged that Respondent contracted without a license, which is a violation of Ariz. Rev. Stat. section 32-1151. See id. The Registrar assessed a civil penalty in the amount of $1,500.

5. Respondent filed an appeal to the Cease & Desist Order and Civil Citation.

6. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

7. On August 7, 2018 the Registrar issued a Notice of Hearing on Citation and Civil Penalty setting the above-captioned matter for hearing on September 5, 2018, at the Office of Administrative Hearings in Phoenix, Arizona.

8. The Notice of Hearing shows that the hearing was to address the charges in the Citation issued and the assessment of a civil penalty.

9. A hearing was held on September 11, 2018.

10. Mr. Taft testified on his own behalf. The Registrar presented the testimony of Cynthia Adams, and submitted exhibits 1 through 7.

11. At hearing, Mr. Taft testified that he was not sure whether the invoices presented at hearing were the invoices which CG provided to Cruisers. Mr. Taft testified that the address on the invoices was not the location where CG was conducting business at the time of the contract. Mr. Taft was not certain whether the line item for the wire and camera installation in the amount of $3,750 was accurate. However, Mr. Taft admitted that he paid Keith Kircher $2,500 for the wire and camera installation.

12. Mr. Taft contended that he should not be liable because Keith Kircher actually performed the installation. Mr. Taft asserted he would like to become a licensed contractor, but would be unable to obtain his license due to the Registrar’s Cease & Desist Order and Civil Citation.

CONCLUSIONS OF LAW

The Registrar bears the burden persuasion. Ariz. Rev. Stat. section 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 section 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 section 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. section 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 32-1165 provides that:

Except as authorized by section 32-1121, subsection A, paragraph 14, subdivision (c), it is a class 1 misdemeanor for any person to advertise that he is able to perform any service or contract for compensation subject to regulation by the registrar under the terms of this chapter unless a license under the terms of this chapter is first obtained regardless of whether his operations as a contractor are otherwise exempt.

9. Ariz. Rev. Stat section 32-1101 provides that:

3. "Contractor" is synonymous with the term "builder" and means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that, for compensation, undertakes to or offers to undertake to, purports to have the capacity to undertake to, submits a bid or responds to a request for qualification or a request for proposals for construction services to, does himself or by or through others, or directly or indirectly supervises others to:

(a) Construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or any other structure or work in connection with the construction.

(b) Connect such a structure or improvements to utility service lines and metering devices and the sewer line.

10. Arizona contracting law prohibits a person from acting as a contractor without a license. The law allows an exemption from licensure, with certain limitations, for a “handyman.” An unlicensed handyman can perform construction work, with certain exclusions, such as that the work does not require a permit, as long as the aggregate price for the job, including labor and materials, does not exceed $1,000.00. 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.

11. The preponderance of the evidence shows that Mr. Penning acted as an unlicensed contractor, which is a violation of Ariz. Rev. Stat. section 32-1151.

ORDER

Based on the foregoing, it is recommended that the Registrar affirm the finding that Respondent Daniel Taft, Sr. violated Ariz. Rev. Stat. section 32-1151, and impose 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 will be five days from the date of that certification.

Done this day, September 19, 2018.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors