ALJDEC decisions subject to certification as final

2017A-2513-CPA-ROC-RHG · Registrar of Contractors · 2018-02-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF CIVIL PENALTY ISSUED TO:

Francisco Guerrero,

RESPONDENT.

No. 2017A-2513-CPA-ROC-RHG

ADMINISTRATIVE LAW JUDGE DECISION

REHEARING: February 6, 2018, at 8:30 a.m.

APPEARANCES: The Arizona Registrar of Contractors (“the Registrar”) was represented by Thomas Raine, Esq., Assistant Attorney General; Francisco Guerrero (“Respondent”) appeared on his own behalf; Ramses Briones of Language Connections provided English-Spanish translation.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

On May 14, 2017, at 9:56 p.m., Nick Weber filed a hotline complaint with the Registrar that Respondent was operating a handyman and renovation business and claiming to be a licensed contractor on Yelp and Kudzu.com.

Mr. Weber attached to his complaint certain internet advertisements for Respondent and his purported company, Soaring Eagle Handyman & Renovations (“Soaring Eagle”).

The complaint was assigned to the Registrar’s Investigator, Laurie Swanson, for investigation.

On May 25, 2017, at 6:43 p.m., Mr. Weber filed a second hotline complaint, alleging that Respondent had performed a kitchen remodel, including electrical, plumbing, and wall demolition, in Gilbert, Arizona in June 2016. Investigator Swanson consolidated the second complaint with the first complaint for investigation.

On June 21, 2017, Investigator Swanson issued a Cease & Desist Order and a civil citation for violating A.R.S. § 32-1165, based on Respondent’s purported internet advertisements, and assessed a civil penalty in the amount of $1,000.00 for the violation.

Respondent’s wife, Dominique Fadon, accepted service of the Cease & Desist Order and civil citation that the Registrar sent to Respondent’s address at 11453 N. 43rd Dr., Glendale, Arizona 85304 via certified mail.

Respondent requested a formal hearing. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. Respondent did not appear for the first scheduled hearing because he was being detained by the Department of Homeland Security in its Florence facility due to Mr. Weber’s complaints and his immigration status. The Registrar issued a decision based on Respondent’s failure to appear, but later referred the matter back to OAH for a rehearing.

A rehearing was held on February 6, 2018. The Registrar submitted six exhibits and presented Investigator Swanson’s testimony. Respondent submitted sixteen exhibits and testified on his own behalf.

Additional Hearing Evidence

Investigator Swanson identified the internet advertisements that Mr. Weber had submitted with his first hotline complaint. The advertisements for Soaring Eagle showed Respondent’s name with the words “Licensed Contractor” underneath. The advertisement solicited concrete slab, plumbing, roofing, and room addition work. The advertisement did not include the disclaimer, “Not a Licensed Contractor.”

Investigator Swanson testified that Mr. Weber had put an arrow next to Respondent’s telephone number, 602-600-8005, on the advertisement.

Investigator Swanson testified that the work that the advertisement solicited would have required a license if the aggregate price of the work was $1,000.00 or more or if a permit was required. Investigator Swanson testified that for the advertisement to be protected by the handyman’s exemption, it needed to include the disclaimer, “Not a Licensed Contractor.”

The Registrar submitted the Arizona Corporation Commission’s (“ACC’s”) records for Soaring Eagle. According to the ACC, Soaring Eagle had been incorporated on January 21, 2015, with Respondent and Lorraine Andrade as members. Respondent was Soaring Eagle’s statutory agent at its mailing address of 4501 N. 106th Ave., Phoenix, Arizona 85037. The ACC showed a signature that purported to be Respondent’s dated January 17, 2015.

Investigator Swanson testified that she searched the Registrar’s database and did not find that Respondent had ever was issued a contractor’s license. One complaint against Respondent and Soaring Eagle for unlicensed contracting or unlicensed advertising had been closed for lack of evidence. Investigator Swanson testified that the Registrar was treating the current offense as Respondent’s first offense.

Investigator Swanson testified that she called the number on the internet advertisement that Mr. Weber had submitted, 602-600-8006, and it was not a working number. She called Mr. Weber, he provided another number, and she was able to contact Respondent at that number.

When Investigator Swanson interviewed Respondent, he told her that Nick Weber was married to Janice Solis, the eldest daughter of Lorraine Andrade, Respondent’s ex-wife. Investigator Swanson stated that Mr. Weber initially was not forthcoming about the relationship between him and Respondent but that, when she called him back, Mr. Weber acknowledged that Respondent’s ex-wife Ms. Andrade was his mother-in-law.

Respondent testified that he was married to Ms. Andrade between 2010 and mid-2014. The two share a daughter, Nirvana, who is now seven years old. Respondent testified that Ms. Andrade was not happy with the divorce or the way that the marriage ended and that ever since, she has been fighting Respondent in domestic relations court to interfere with his relationship with Nirvana.

Respondent testified that Ms. Andrade and Nirvana lived with Mr. Weber and Ms. Solis at 7725 E. Monte Vista Dr., Scottsdale, Arizona. Respondent lives with his current wife, Dominique Fadon, at 11453 N. 43rd Drive in Glendale, Arizona 85304.

Respondent submitted Nirvana’s student profile from Pima Elementary School that showed as the custodial information Lorraine Andrade at 7725 E. Monte Vista Dr. at the cell phone number 623-845-2046 and himself at 11453 N. 43rd Dr. at the cell phone number 602-600-8006.

Respondent submitted a Phoenix Police Department report that on May 14 2017, at approximate 6:23 p.m., slightly more than three hours before Mr. Weber made the hotline report to the Registrar, police responded to a call at Respondent’s residence at 11453 N. 43rd Dr. The report stated that Ms. Andrade and her sister had arrived at the house and that, when Respondent, his wife, and daughter returned, Ms. Andrade and her sister attacked Respondent’s wife and began to pull her hair.

Respondent submitted an Injunction against Harassment that his wife, Dominique Fadon, obtained against Ms. Andrade as a result of the incident in Glendale City Court Case No. CV2017010970 on May 31, 2017, that prohibited Ms. Andrade from having any contact with Ms. Fadon and her children at their residence, work, or school.

Respondent testified that he had spent four months in immigration detainment in Florence as a result of various complaints that Mr. Weber had made to the Department of Homeland Security, including that Respondent was illegally operating Soaring Eagle, which Mr. Weber characterized in his two-page, single-spaced complaint to the Department of Homeland Security as “[a]nother indication of [Respondent’s] unethical and deceptive behavior.”

Respondent testified that he has always provided handyman services, but has never undertaken big projects. Respondent testified that he did not know anything about Soaring Eagle until Mr. Weber filed the hotline complaint with the Registrar. Respondent testified that Ms. Andrade had registered Soaring Eagle with the ACC without his knowledge after their divorce.

Respondent testified that he did not do any internet advertising for his handyman business and that after he was released from the Department of Homeland Security facility in Florence, he has not been able to work. Respondent explained that he is waiting to obtain his work permit and legal residency.

Respondent testified that the immigration judge found Mr. Weber’s attacks to be baseless, even though Ms. Andrade personally testified against him, and had released him on bond.

Respondent submitted an advertisement for Soaring Eagle that Mr. Weber had provided to the immigration judge, which showed his name and telephone number as 602-653-4661.

Respondent submitted a second advertisement for Soaring Eagle that Mr. Weber had provided to the immigration judge, which also showed his name and the telephone number of 602-653-1661. Respondent testified that Mr. Weber falsified the advertisements to implicate him in fraudulent or illegal transactions that he did not commit.

Respondent submitted a printout for the persons associated with the telephone number 602-653-4661, which belonged to Ms. Andrade’s brother, Loren A. Sosa, at Mr. Weber’s and Ms. Andrade’s address on 7725 E. Monte Vista Rd., Scottsdale, Arizona, 85257-2229, and was associated with Ms. Andrade and the address 4501 N. 106th Ave., Phoenix, Arizona 85037-5116, but not Respondent or his residential address.

Respondent submitted a printout from the Registrar’s public website for Soaring Eagle Construction Inc. and qualifying party/officer Milton Jones Hulet, License No. B.173148-R, which the Registrar revoked on January 5, 2009. Respondent testified that Soaring Eagle was not his company.

Respondent submitted a Facebook printout for Lorraine Andrade, which included among her experience Business Development and Brand Marketing at Soaring Eagle Handyman & Renovation Services.

Respondent testified that Ms. Andrade continued to engage in unlicensed contracting and puts herself on Linked-In as associated with multiple companies, some of which are registered in his name, or associated with her brother, German Sosa, who is a convicted felon. Respondent submitted an internet advertisement for GS Home Solutions, and its member, German Sosa, which claimed to be licensed, even though it was not, and Before and After House Cleaning Services, and its manager, German Sosa, which purported to be female-owned. Both companies showed as their contact telephone number 623-845-2046, which is the same cell phone number shown for Ms. Andrade on the Pima Elementary School Student Profile for Nirvana.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Registrar bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

A.R.S. § 32-1121(A)(14) sets forth the so-called “handyman’s exemption” to licensure requirements and provides in relevant 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. . . .

A.R.S. § 32-1165 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. § 32-1121(A)(14)(c) provides that the handyman exemption does not apply “[t]o 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.”

The Registrar established that the internet advertisements that it attributed to Respondent did not include the disclaimer, “Not a Licensed Contractor.” However, Respondent established that his ex-wife, Lorraine Andrade, and her son-in-law, Nick Weber, created these advertisements in an attempt to discredit Respondent and to gain an advantage in Ms. Andrade’s domestic relations dispute with Respondent over custody of their minor daughter, Nirvana, and that he is not responsible for these online advertisements.

A.R.S. § 32-1166(A) authorizes the Registrar to assess a civil penalty against a person who has been found to have advertised that he is able to perform a service for which a contractor’s license is required in violation of A.R.S. § 32-1165. Because Respondent established that he is not responsible for the online unlicensed advertisements that formed the bases of the Registrar’s case against him, the Registrar did not establish cause to assess a civil penalty in any amount against him.

RECOMMENDED ORDER

Based on the foregoing, on the effective date of the final order in this matter, it is recommended that the Registrar uphold Respondent Francisco Guerrero’s appeal, dismiss the civil citation for unlicensed advertising that was entered against him, and rescind the $1,000.00 civil penalty that was assessed against him.

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, February 13, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors