ALJDEC decisions subject to certification as final

2017A-2638-CPA-ROC · Registrar of Contractors · 2018-03-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors,

IN THE MATTER OF THE

CIVIL PENALTY CITATION ISSUED TO:

Patricia Marie Wallin,

No. 2017A-2638-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 15, 2017, at 8:30 a.m.

APPEARANCES: Patricia Marie Wallin (“Ms. Wallin” or “Respondent”); Thomas Raine (“Mr. Raine” attorney for the Arizona Registrar of Contractors “Registrar” or “ROC”); Kirk Bryce (“Investigator Bryce” for the Registrar or ROC); and Robin Reidhead (“Ms. Reidhead” observer for Respondent).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

Ms. Wallin appealed a Civil Citation issued by the Registrar for contracting without a license and advertising without a license. The Civil Citation imposed an aggregate civil penalty of $2,500.00. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law, and Recommend Order are made.

FINDINGS OF FACT

Ms. Wallin is not a licensed contractor in the State of Arizona.

On or about May 19, 2017, the Registrar received a complaint from Timothy Allen Jackson (“Mr. Jackson”) alleging that he entered into an oral contract with Respondent to remodel a bathroom at its residence of 2570 McNeill Street, Lakeside, Arizona 85929. Mr. Jackson was provided a business card representing the business as Half Wheel Ranch Handyman Services LLC. The business card did have the words “we are not a licensed contractor” printed across the bottom.

Respondent submitted several invoices to Mr. Jackson for plumbing, electric labor, demolition, and remodel bathroom. The service date of 03/03/2017 on the “remodel bathroom” invoice reflected an amount of $7,312.13 to include sales tax.

Mr. Jackson provided copies of two checks made payable to Half Wheel Ranch Construction, LLC, as follows: Check No. 169, dated 03/03/2017, in the amount of $1,607.00, and Check No. 172, dated 03/21/2017, in the amount of $7,312.13.

Investigator Bryce was assigned to investigate the unlicensed complaint, and provided a synopsis as to his findings. Investigator Bryce noted that upon receipt of the complaint, he performed a data query and no prior complaints were revealed against in his AZ ROC search against Respondent.

Investigator Bryce also conducted a search of the Arizona Secretary of State and the data search revealed that Half Wheel Ranch is a registered tradename listing applicants as Patricia Marie Wallin and James Wallin.

Investigator Bryce credibly testified in narrative format regarding his involvement in this matter. In concluding his investigation based on the allegations provided by Mr. Jackson, and his findings following his investigation, he did substantiate the allegations and issued and served by Certified Mail, a Cease and Desist Order to Respondent for violations of A.R.S. § 32-1151 Contracting without a license, Civil Penalty Assessed $1,500.00; and A.R.S. § 32-1165 Advertising without a license, Civil Penalty Assessed $1,000.00.

At hearing, Investigator Bryce was questioned whether any photographs were obtained of his observations at the Home Depot in Showlow, Arizona, of the purported magnetic business sticker placed on Respondent’s vehicle to which he replied, no.

Investigator Bryce testified that the invoices provided to Mr. Jackson did not conspicuously include any language that it is not a licensed contractor, and these invoices are viewed as advertisements.

Ms. Wallin testified she is the owner of four (4) vehicles as she and her husband own a horse ranch, and they place logos on their vehicles for the horse ranch.

Ms. Wallin did not deny the allegations of contracting without a license and requested additional time to remedy the violation in order to allow her to retake the contractor’s licensing examination.

At hearing, Mr. Raine made no objection to this request and upon conclusion of the hearing, this matter was set for a 60-day status update.

On February 12, 2018, the Registrar submitted to the Office of Administrative Hearings its Status Update noting that Patricia Wallin notified the Registrar that she no longer wishes to pursue a contractor’s license and she will not be retaking the contractor’s licensing examination. The Registrar moved to conclude the matter based on the testimony and evidence presented at the December 15, 2017, hearing.

CONCLUSIONS OF LAW

The Registrar bears the burden of proof to establish Respondent’s violation of A.R.S. § 32-1151 and A.R.S.§ 32-1165 by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

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.

A.R.S. § 32-1121(A)(14) provides 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, but excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person, that can be plugged into a common household electrical outlet utilizing a two pronged or three pronged electrical connector and that does not use any other form of energy, including natural gas, propane or other petroleum or gaseous fuel, to operate or is attached by a nail, screw or other fastening device to the frame or foundation of any residential structure, 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:

(a) In any case in which the performance of the work requires a local building permit.

(b) In any case in which the work or construction is only a part of a larger or major operation, whether undertaken by the same or a different contractor, or in which a division of the operation is made in contracts of amounts less than one thousand dollars, excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person, that can be plugged into a common household electrical outlet utilizing a two pronged or three pronged electrical connector and that does not use any other form of energy, including natural gas, propane or other petroleum or gaseous fuel, to operate or is attached by a nail, screw or other fastening device to the frame or foundation of any residential structure, for the purpose of evasion of this chapter or otherwise.

(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. § 32-1151 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.

Under A.R.S. § 32-1165, 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.

After review of all the evidence, the Tribunal concludes that the Registrar has proven that Respondent engaged in contracting without a license as supported by the payments made to Respondent and Ms. Wallin’s testimony.

Additionally, while the Registrar provided some evidence of advertising without a license as reflected by the invoices provided to Mr. Jackson for work performed, the Registrar failed to provide any evidence of the alleged advertisement(s) posted on Facebook, or its’ observation of a magnetic business sticker placed on the Respondent’s vehicle located outside of Home Depot in Showlow, Arizona. Therefore, the Tribunal finds that while they proved advertising without a license by way of the invoices provided to Mr. Jackson, the lack of additional supporting evidence serves as mitigating factors to the Registrar’s assessed civil penalty imposed in its Cease and Desist Order.

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 the civil penalty for Respondent’s violation 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. Evidence received in this matter supports the imposition of a $1,500.00 penalty pursuant to A.A.C. R4-9-131(10); and a reduction of the $1,000.00 penalty imposed under A.R.S. § 31-1165 to $500.00.

RECOMMENDED ORDER

Based upon the foregoing, it is recommended that the Registrar affirm the finding that Patricia Marie Wallen violated A.R.S. §§ 32-1151 and 32-1165 and affirm the decision to assess a civil penalty under A.R.S. § 32-1151 in the amount of $1,500.00, and the recommended reduced civil penalty under A.R.S. § 32-1165 of $500.00 for a total civil penalty assessment of $2,000.00 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 5, 2018.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors