ALJDEC decisions subject to certification as final

2017A-2425-CPA-ROC · Registrar of Contractors · 2018-03-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

Christian Allan Salas

No. 2017A-2425-CPA-ROC

No. 2017A-2677-CPA-ROC

ADMINISTRATIVE LAW

JUDGE DECISION

HEARING: February 16, 2016

APPEARANCES: Respondent Christian Allan Salas 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

Christian Allan Salas (Respondent) is not a licensed contractor in the State of Arizona.

2017-2677

On or about May 22, 2017, the Arizona Registrar of Contractors (Registrar) received an Unlicensed Complaint Form from Lisa Marie Gill regarding Respondent. Ms. Gill reported that Respondent took money to perform a job and promised to pay her back after a fourth missed appointment for installation. Ms. Gill asserted that Respondent still owed her $350.00. Ms. Gill included with her complaint a contract with “Salas Divine Stone” for the total cost of $2,700.00 to install granite countertops.

On or about May 24, 2017, the complaint was assigned to Investigator Ruben Perez. Investigator Perez interviewed Ms. Gill regarding the complaint and determined that she had entered into a contract with Respondent in February 2017, paid Respondent $1,350.00 as a down payment on the $2,700.00 contract, and Respondent had eventually repaid her $1,000.00, but still owed her $350.00. Ms. Gill stated that she did not want to pursue criminal charges, but did want her money back.

Investigator Perez also spoke with Respondent, who had previously been cited for advertising for contracting work without a license. Respondent admitted that he entered into the contract with Ms. Gill to perform the work, but then was unable to perform the work because he had personal and medical problems. Investigator Perez notified Respondent that he was required to have a license from the Registrar to perform any contract totaling $1,000.00 or more.

On or about June 6, 2017, Investigator Perez issued a cease and desist order to Respondent including a $2,500.00 fine for contracting without a license.

Respondent has since paid Ms. Gill back the full amount of $1,350.00 she paid as a deposit.

2017-2425

On or about May 9, 2017, Investigator Perez observed an advertisement on Facebook for Respondent doing business as Salas Divine Stone for the installation of granite kitchen countertops. The advertisement did not include a provision that Respondent was “not a licensed contractor.”

On or about May 11, 2017, Investigator Perez contacted Respondent regarding the Facebook advertisement. Respondent reported to Investigator Perez that his assistant had failed to add the disclosure in the advertisement. Investigator Perez notified Respondent that any project valued at $1,000.00 or more required a license from the Registrar.

On or about May 11, 2017, Investigator Perez issued a cease and desist order to Respondent including a $1,000.00 fine for advertising without a license.

On or about May 18, 2017, Investigator Perez checked the Facebook advertisement and noted that it had been updated to include the disclosure that Respondent was “not a licensed contractor.”

Respondent did not appear at the hearing.

At hearing, the Registrar presented City of Yuma and Arizona Corporation Commission records establishing that Respondent was the owner, member, and partner of Salas Divine Stone

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. § 32-1121(A)(14) provides, in pertinent part, as follows:

Any person other than a licensed contractor engaging in any work or operation on one undertaking or project by one or more contracts, for which the aggregate contract price, including labor, materials and all other items, . . . . is less than one thousand dollars. The work or operations that are exempt under this paragraph shall be of a casual or minor nature. This exemption does not apply:

. . . .

(c) To a person who utilizes any form of advertising to the public in which the person's unlicensed status is not disclosed by including the words "not a licensed contractor" in the advertisement.

A.R.S. § 32-1156 provides as follows:

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.

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, Respondent failed to perform the work for which money was received and had two or more previous violations. Based on the specific and unique circumstances in this matter, the Tribunal concludes that the total civil penalty of $3,500.00 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 A.R.S. § 32-1165 and assess a civil penalty of $3,500.00 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, March 9, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors