ALJDEC decisions subject to certification as final

2017A-3142-CPA-ROC · Registrar of Contractors · 2018-03-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

Larry G. Spear

No. 2017A-3142-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 5, 2018

APPEARANCES: John Tellier, Asst. Atty General, attorney for the Registrar; Larry G. Spear, Respondent; Barry Maerker, Investigator, Registrar

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

The Registrar presented evidence to support the civil penalty citation previously issued to Larry Spear, d/b/a: Spear Enterprises a/k/a Spear Enterprises, LLC [hereinafter “Spear”]. Based on this evidence, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to the Arizona Registrar of Contractors [the “Registrar”].

FINDINGS OF FACT

On or about June 20, 2018, the Registrar received a Formal Written complaint from Mr. Larry Rennaker stating that Spear was engaged in conduct that constituted contracting without a license.

The Registrar initiated an investigation on June 20, 2017 regarding whether the allegation in the complaint could be substantiated.

The matter was assigned to Registrar’s Investigator Kirk Bryce who proceeded to contact the Complaining party by telephone. In his conversation with Mr. Rennaker, the Investigator reports, on June 16, 2016 Spear entered into a written contract with Larry Rennaker to build a steel garage. Mr. Rennaker remarked that there had been issues with the County Building Inspector because the job was not properly permitted. The Inspector was advised by Mr. Rennaker that Spear refused to make corrections and or to complete the Project. Mr. Rennaker said had to hire a licensed contractor to finish construction. Mr. Rennaker said Mr. Spear refused to refund $5,775.00 for unfinished work which was paid to Spear by Mr. Rennaker.

Based upon his investigation and findings, on July 7, 2017, Inspector Bryce issued a cease and desist order to Mr. Spear along with a $1,500.00. civil citation On October 13, 2017, Mr. Spear requested a hearing on his civil citation and cease and desist order.

On October 17, 2017, the Answer of Mr. Spears to the civil citation was filed.

Mr. Spear states in his signed Answer:

The address of the violation was 1326 Mineral Drive, Forest Lakes, Arizona 85931.

That residence belongs to Larry Renneker.

I am a sales agent for American Steel Carports Inc. 457 North Broadway Street, Joshua Texas ...they are licensed to contract ln the State of Arizona.

I supervised the installation of the steel garage for Mr. Renneker as his agent. l do not need a license for that.

I was hired as an agent for Mr. Renneker to obtain a permit for the installation of the said building.

He [Mr. Renneker] paid me as his agent to obtain that permit. I do not need a license to do that.

Mr. Renneker hired me as his agent to pour a cement slab in preparation for his building. I hired a licensed contractor in his behalf to have the concrete poured and finished. I do not need a license for that.

Mr. Renneker hired me as his agent to procure the permits to run a grey water line from his new garage out on the ground. That required an immense amount of time and effort in trying to satisfy Coconino County's requirements and thousands of extra dollars from Mr., Renneker to obtain that permit. Mr. Renneker finally decided that he did not want the grey water line because of the extra expense. I do not need a license for that.

Mr. Renneker hired rne as his agent to run an electrical line from his house to his new garage. I was in the process of hiring a licensed electrical contractor. But I was experiencing some severe health problems and I was taking longer than Mr. Renneker wanted.to wait...he would get someone else to finish it.... he demanded some money back. I told him I would not refund him any money...

Mr. Renneker had said I deceived him as I provided him with a paper that had Spear Enterprises Inc. as the contractor with a ROC License number. I then told Mr. Renneker once again that I was not a contractor. I reminded him once more that I was his agent. In no way was I a contractor.

I do not have a contractor's license....

Pursuant to Spear’s request, a hearing was conducted by the Office of Administrative Hearings on March 5, 2018. The scope of the hearing was limited to address whether there is sufficient grounds for the issuance of the cease and desist order and civil citation; the breadth of the cease and desist order and the reasonableness of the amount of the civil citation.

At the hearing, Mr. Barry Maerker, Investigator in the Registrar’s “Unlicensed Division” appeared, was sworn and testified. Mr. Maerker testified that Spear was engaging in conduct that constituted contracting without a license in that on or about June 16, 2016 and thereafter Spear bid and supervised construction projects at a residence that belongs to another, i.e. Larry Renneker. Mr. Maerker testified, and in his Answer Spear admits, that in the course of the projects, Spear supervised the installation of the steel garage for Mr. Renneker; applied for and obtained a permit or permits for the construction of the steel building; undertook to pour a cement slab in preparation for the steel building; hired a sub-contractor for the concrete project and supervised the pouring and finishing of the concrete project; accepted compensation to procure permits to run a grey water line from Mr. Renneker’s new garage out on the ground and agreed to perform or hire others to perform running the grey water line for Mr. Renneker; bid and entered into agreement with Mr. Renneker to run an electrical line from his house to his new garage.[hereinafter the “Project”]. Spear is not a licensed Arizona contractor.

Mr. Larry G. Spear was sworn and testified at the hearing. The sum and substance of Mr. Spear’s testimony was his repeated assertion that he is a mere agent of Mr. Renneker regarding the Project, that he has been extremely careful to inform all persons he does business with in construction that he is not a licensed contractor and is only acting as an agent. He explained that all of the written documents entered into evidence that show his signatures are clearly marked to indicate that he was the agent of Mr. Renneker. He asserts at all times was acting only in the capacity of agent – not a licensed contractor.

Spear does not deny that he engaged in the conduct described in paragraph 7 hereinabove and in his answer and does not deny that he is not a licensed Arizona Contractor.

Spear admits that he has engaged in numerous other projects over the past three years wherein Spear supervised residential construction projects that Spear hires and supervises sub-contractors and obtains permits for the project owners to conduct the construction on the projects.

Administrative Judicial Notice is taken of the record of the Registrar which indicates Spear has been served with previous Cease and Desist Orders, to wit: 2001-[number redacted] IUP02 and 2001-[number redacted] IUP02- 00391 from the Registrar.

CONCLUSIONS OF LAW

The Registrar bears the burden persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(3).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).

The preponderance of the evidence shows that Spear engaged in conduct as a “Contractor” on and for the Project by offering to undertake, purporting to have the capacity to undertake, submitting a bid to construct, alter, repair, ad to, subtract from improve, move, wreck or demolish any building, . . . excavation or other structure, project, development or improvement on the Renneker residence.

The contention of Spear that “just because the State says I am a contractor does not make it so” is ill-conceived. Spear either intentionally conceived trying to cover his unlawful contracting without a license conduct by claims that he is an agent only – and not a contractor - as subterfuge to skirt Arizona’s Construction Contractor Statutes or Spear is utterly confused about the meaning and effect of statutory provisions defining and regulating Contractors. Either way, all the facts gathered in this proceeding point to Spears’ conduct falling squarely within the statutory definition of a “Contractor”

Sear’s conduct detailed by the Findings of Fact hereinabove describe conduct defining the term “Contractor” regardless of whatever term Spear wishes to apply – such as Agent or Agency. By its very nature and definition in Arizona Statute, it is clear that the Arizona Legislature intended the activity of a Contractor necessarily envisions that all Contractors are Agents acting for, on behalf of and for the benefit of the property owner.

The acts of a Contractor as defined by Arizona law and the acts of an Agent are not mutually exclusive. Instead, acts of a Contractor often and expectantly overlap to a degree with the powers and authority of an Agent. Although one can act as an agent for another, if the agency actions include conduct described by Arizona Statute as a Contractor, such conduct is regulated by the Registrar regardless whether the actor has apparent or actual Agent authority or status. Notwithstanding Spear’s contention that acts of an agent are separate and distinct from the acts of a contractor, Respondent’s contention was not supported by any case law offered by Spear or by a preponderance of the facts.

By a preponderance of the evidence the Registrar has proven that on or about June 11, 2016 in Coconino County at 1326 Mineral Drive in Forest Lakes, Arizona Spear did violate A.R.S. §32-1151, contracting without a license.

Inasmuch as a preponderance of the evidence demonstrated that Spear did bid, sub-contracted and supervise the Project and, in the course, did act to obtain required permits for the construction, A.R.S. § 32-1121(14)(c) [the handyman exception] does not apply.

Spear is subject to a civil penalty of up to $2,500.00 for each violation of A.R.S. §32-1165. Inasmuch as Spear has previously received at least to prior Registrar Cease and Desist Orders and otherwise considering the facts and circumstances of this matter, the civil penalty of $1,500.00 assessed against Larry G. Spear, Respondent is reasonable, appropriate and should be affirmed.

RECOMMENDED ORDER

NOW THEREFORE IT IS RECOMMENDED affirming the civil penalty of $1,500.00 assessed against Larry G. Spear.

FURTHER IT IS RECOMMENDED dismissing the Appeal of Larry G. Spear in this matter and closing this case.

Done this day, March 12, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Larry G Spear

PO Box 2231

Overgaard, AZ 85933-2231

Respondent

John Tellier, Esq.

Assistant Attorney General

1275 W. Washington St.

Phoenix, AZ 85007-2926

[email redacted]

Attorney for the Registrar

Jeffrey Fleetham, Director

Registrar of Contractors

By:__________