ALJDEC decisions subject to certification as final

2017A-2748-CPA-ROC · Registrar of Contractors · 2017-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

Brian Bartoszek,

Respondent.

No. 2017A-2748-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 26, 2017, at 8:30 a.m.

APPEARANCES: The Arizona Registrar of Contractors (“the Registrar”) was represented by Thomas C. Raine, Esq., Assistant Attorney General; Brian Bartoszek (“Respondent”) appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

On or about May 25, 2017, the Registrar’s Investigator Mike Nation was patrolling and noticed a truck parked near 15213 N. 23rd Place, Phoenix, Arizona, that had signs advertising Giant Roofing and repair or replacement of leaking roofs or roofs that looked “really bad,” as well as the vanity license plate, “I ROOF 4U.” The signs on the truck did not include the disclaimer, “not a licensed contractor.” Investigator Nation took photographs of the signs on the truck and the vanity license plate.

Investigator Nation ran the license plate and discovered that the truck was registered to Respondent, whose residential address was 15213 N. 23rd Place, Phoenix, Arizona. Investigator Nation searched the Registrar’s database and determined that neither Respondent nor Giant Roofing had ever been issued a contractor’s license.

On or about May 26, 2017, Investigator Nation went online and located Giant Roofing’s Facebook page, which showed before and after pictures of roofs after substantial repairs or replacement. The address for Giant Roofing was 15213 N. 23rd Place, Phoenix, Arizona and the email addresses was [email redacted]. Giant Roofing’s Facebook page did not include the disclaimer, “not a licensed contractor.”

Investigator Nation researched the Registrar’s database to see if Respondent had ever been found to have engaged in unlicensed contracting or unlicensed advertising and determined that in 2008, Respondent had been found to have engaged in unlicensed advertising and in 2014, Respondent had been found to have engaged in unlicensed contracting and unlicensed advertising.

Investigator Nation testified that the 2014 unlicensed advertising violation was based on Respondent’s use of Facebook to advertise his roofing business without including the disclaimer, “not a licensed contractor.” Investigator Nation testified that Respondent had been served with the 2014 citation for unlicensed advertising and did not request a hearing. Investigator Nation testified that the Registrar had referred the 2014 matter to collections.

On or about May 26, 2017, Investigator Nation on behalf of the Registrar issued a Cease & Desist Order and a Civil Citation for two counts of unlicensed advertising in violation of A.R.S. § 32-1165. Investigator Nation assessed a civil penalty in the amount of $2,500.00 for each charged violation of A.R.S. § 32-1165. The Cease & Desist Order and Civil Citation were served on Respondent by certified mail.

Investigator Nation prepared a report of his investigation into Respondent’s unlicensed advertising activities.

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

A hearing was held on July 26, 2017. The Registrar presented Investigator Nation’s testimony and submitted five exhibits. Respondent testified.

Investigator Nation testified to establish the facts set forth above. Investigator Nation testified that the roof work that was advertised on Respondent’s truck and Giant Roofing’s Facebook page would have cost more than $1,000.00.

Respondent testified that as soon as he received the Cease & Desist order and Citation for two counts of violating A.R.S. § 32-1165, he took the signs off his truck. Respondent complained about the Registrar’s investigator “stalking” him by photographing his truck while it was parked on the street.

Respondent denied that he had ever been served with the 2014 Citation for unlicensed advertising. Respondent testified that he is not computer literate and that his ex-wife or ex-girlfriend created the Giant Roofing Facebook page and entered Respondent’s contact information on the page without his knowledge. Respondent stated that he did not know how to modify or disable Giant Roofing’s Facebook page but that he would try to contact his ex-wife or ex-girlfriend and ask her to modify or disable the Facebook page.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Registrar bears the burden of proof to establish Respondent’s statutory violations 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. § 32-1165 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 Respondent advertised the services of his company, Giant Roofing, on his truck and on Facebook without including the disclaimer, “not a licensed contractor.” Respondent did not establish that his ex-wife or ex-girlfriend created Giant Roofing’s Facebook page that showed his personal information without his knowledge or consent.

A.R.S. § 32-1166(A) authorizes the Registrar to assess a civil penalty against a person who has been found to have contracted without a license in violation of A.R.S. § 32-1151 or 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, in relevant part as follows:

In addition to all other remedies, when it appears to the registrar, either upon complaint or otherwise, that any person, firm, partnership, corporation, association or other organization, or a combination of any of them, has engaged in or is engaging in any act of contracting, practice or transaction which constitutes a violation of this chapter, or any rule or order of the registrar, the registrar may serve upon such person, firm, partnership, corporation, association or other organization not currently licensed under this chapter, by certified mail or by personal service, a cease and desist order requiring the person, firm, partnership, corporation, association or other organization to cease and desist immediately, upon receipt of the notice, from engaging in such act, practice or transaction. In conjunction with the cease and desist order, the registrar may issue a citation for a violation. Each citation shall be in writing and shall clearly describe the violation for which the citation was issued. Each citation shall contain an order to cease and desist and an assessment of 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. . . .

A.A.C. R4-9-131 provides some factors that the Registrar may consider as factors to increase the amount of a civil penalty, including that the unlicensed contractor “[h]as committed two or more prior violations.” The Registrar established that Respondent has twice been found to have engaged in unlicensed contracting or unlicensed advertising. Under the circumstances, the two civil penalties in the amount of $2,500.00 each for the two counts of unlicensed advertising were not excessive in light of Respondent’s past unlicensed contracting and unlicensed advertising violations in 2008 and 2014.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar’s finding that Respondent Brian Bartoszek twice violated A.R.S. § 32-1165 shall be affirmed.

It is further recommended that the assessment of two $2,500.00 civil penalties in the total amount of $5,000.00 shall be affirmed. The aggregate total of $5,000.00 in civil penalties 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, August 2, 2017.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors