ALJDEC decisions subject to certification as final

2017A-2513-CPA-ROC · Registrar of Contractors · 2017-10-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

Francisco Guerrero

No. 2017A-2513-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 21, 2017

APPEARANCES: Respondent Francisco Guerrero did not appear.

Assistant Attorney General Thomas Raine appeared on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. At all times relevant to this matter, Mr. Guerrero was the statutory agent and member of Soaring Eagle Handyman & Renovations, LLC (“Soaring Eagle”). See Exhibit 5.

2. Mr. Guerrero is not a licensed contractor in Arizona. See Exhibits 2

and 6.

3. Soaring Eagles is not a licensed contractor in Arizona. See id.

4. Mr. Guerrero advertised several construction services of Soaring Eagle on “kudzo.com” including, but not limited to drywall, painting, texture, remodeling, plumbing, demolition and concrete slab. See Exhibit 4. Mr. Guerrero also provided on the website that he was a licensed contractor. See id.

5. On May 14, 2017, the Registrar of Contractors (“Registrar”) received a hotline complaint from Nick Weber alleging that Mr. Guerrero was operating a handyman and renovation business and claiming to be a licensed contractor.

6. The Registrar assigned the complaint to Investigator Lori Swanson (“Investigator Swanson”). Investigator Swanson conducted an investigation into the complaint. See Exhibit 2. Investigator Swanson concluded that Mr. Guerrero advertised construction services without a license. See id.

7. On June 21, 2017, Investigator Swanson issued a Cease & Desist Order and a Civil Citation for advertising without a license in violation of Ariz. Rev. Stat. section 32-1165, and assessed a Civil Penalty in the amount of $1,000.00 for Mr. Guerrero’s violation of Ariz. Rev. Stat. section 32-1165. See Exhibit 1. Investigator Swanson personally served the Cease & Desist Order, Civil Citation, and notice of assessment of Civil Penalty on Respondent. See id.

8. Mr. Guerrero requested a formal hearing. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

9. A hearing was held on September 21, 2017. The Registrar submitted exhibits 1 through 6, and presented Investigator Swanson’s testimony. Mr. Guerrero did not appear.

10. At hearing, Investigator Swanson testified after receiving

Mr. Weber’s hotline report, she found the Soaring Eagle advertisement on kudzo.com where Mr. Guerrero advertised construction services. Investigator Swanson stated that Mr. Guerrero was listed a “licensed contractor”. Ms. Swanson testified that she obtained the incorporation documents for Soaring Eagle from the Arizona Corporation Commission website. Ms. Swanson testified that Mr. Guerrero was listed as the member and statutory agent of Soaring Eagle. Ms. Swanson testified that she completed a search on the Registrar’s database to determine if Mr. Guerrero and Soaring Eagle was licensed. Ms. Swanson concluded that Mr. Guerrero and Soaring Eagle were not licensed in the State of Arizona.

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. The preponderance of the evidence shows that Mr. Guerrero advertised construction services without a license, which is a violation of Ariz. Rev. Stat. section 32-1165.

ORDER

Based on the foregoing, it is recommended that the Registrar affirm the finding that Respondent Francisco Guerrero violated Ariz. Rev. Stat. section 32-1165 and impose a Civil Penalty in the amount of $1,000.00 for the unlicensed contracting violation. The $1,000.00 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, October 11, 2017

Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors