ALJDEC decisions subject to certification as final

2017A-4458-CPA-ROC · Registrar of Contractors · 2018-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

Roger Thyfault

No. 2017A-4458-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 15, 2018

APPEARANCES: Cynthia Adams, ROC Investigator, Thomas Raine, Asst. Attorney General, for the ROC, Roger Thyfault, Respondent.

ADMINISTRATIVE LAW JUDGE: Randy Wolfson

____________________________________________________________________

FINDINGS OF FACT

On November 27, 2017, pursuant to A.R.S. §32-1166, Respondent Roger Thyfault was personally served with an Arizona Registrar of Contractors’ (Registrar) cease and desist order and a civil citation for Contracting without a license contrary to A.R.S.§32-1151 and Advertising without a License contrary to A.R.S. §32-1165. A.R.S. §32-1166 provides:

A. 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, ... organization not currently licensed under this chapter, by certified mail or by personal service, a cease and desist order requiring the person, ... 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. If after the issuance of a citation by the registrar, the person or organization receiving the citation fails to cease and desist in the violation or violations described in the citation, the registrar may assess an additional civil penalty of up to two thousand five hundred dollars for each day the violation or violations continue. The registrar shall 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. The penalties authorized under this section are separate from, and in addition to, all other remedies either civil or criminal.

B. Each violation of this chapter or a rule or order of the registrar by a person who is required to be licensed by this chapter and who does not possess the required license shall constitute a separate offense, and the registrar may impose a civil penalty of not to exceed two thousand five hundred dollars for each violation except that for multiple violations committed on the same day the civil penalty shall not exceed two thousand five hundred dollars for all such violations...

C. The registrar of contractors may issue citations containing orders to cease and desist and of civil penalties against persons who have never been licensed under this chapter who are acting in the capacity of or engaging in the business of a contractor in this state.

A total of $1,000.00 penalty was assessed. [Exhibit C-1].

Pursuant to A.R.S.§41-1092 et seq., Mr. Thyfault timely appealed the civil citation and a Notice of Hearing was properly served setting this matter for hearing on February 15. 2018. The scope of the hearing conducted was, in accordance with A.R.S. § 41-1092, to wit: limited to the violations alleged, the scope of the order to cease and desist, and the amount of the civil penalty assessed.

On February 15, 2018, hearing before the Arizona Office of Administrative Hearings was convened. The Registrar called Registrar Investigator Cynthia Adams as its only witness. Mr. Roger Thyfault appeared, provided testimony and called no witnesses other than himself.

At the hearing, Ms. Adams testified that on August 25, 2017, the Registrar received an anonymous complaint of an unlicensed contractor operating in the Fountain Hills vicinity of Maricopa County who also was advertising without a license. Upon contact with the anonymous complainant, Ms. Adams was able to discover that the individual involved regarding the alleged unlicensed conduct was Roger Thyfault of Western Maintenance & Supply Company [a/k/a Western Maintenance & Supply Company, Inc.] A copy of a yellow page advertisement in the Fountain Hills yellow pages was provided to Ms. Adams The date of the yellow page advertisement was in July 2017, according to the anonymous source. A copy of a business card for Western Maintenance & Supply Company was obtained by the anonymous source from a Fountain Hills hardware store on July 29th, 2017 and was provided to Ms. Adams as well.

The half-page yellow-pages advertisement read: “NOT A LICENSED CONTRACTOR AND PROUD OF IT! A graphic of a seal appeared on the advertisement that stated “Western Maintenance 34th Anniversary” The add also states:

Guaranteed Roof systems for all types • Longer warranty that we back up after the job is done • You can be one of our 1OOO's of happy customers in Fountain Hills & Verde communities. Interior/Exterior Painting• Drywall repairs • Floors • Epoxy coating • Stucco repair & sealing • Masonry refinishing • Garage floor coatings. We're fixin' to get us a huntin' license too! When times get tough, people turn to those they can trust.

Fishing Lic. #BR549

ROGER THYFAULT

American Owned & Operated

FREE ESTIMATES

The advertisement displays a centered photograph of 15 persons holding a large sign stating “Western Maintenance & Supply Co.” with the caption “This here’s a good likeness, ‘cept it ain’t as ugly as the real gang.” The bottom left side of the ad identifies the advertiser as Wester Maintenance and Supply Co. Inc. and states: “In Fountain Hills since 1983” and, in italics underneath,: “Unlicensed in all 50 states and Puerto Rico.”

Attached to the Respondent’s request for appeal was a similar, but separate copy of what the Respondent identifies in his appeal letter as “A copy of my ad....” This ad appears to be a full page ad with exactly the same copy as is presented hereinabove with the addition of a single bold faced sentence in the upper right hand side of the ad which states : “Aren’t you glad we live in a country where we can hire anyone we want to work on our property?”

The Business Card supplied to Ms. Adams displays on its face: “Western Maintenance & Supply Co., Inc.” and on the reverse side states:

RESIDENTIAL & COMMERCIAL RENOVATIONS & RESTORATIONS ROOFING • PAINTING • DRYWALL REPAIRS FLOORS • PATIOS • DECKS • CARPET • TILE EPOXY COATINGS • WINDOWS & DOORS

FISHING LICENSE # BR 549

ROGER THYFAULT

OFFICE: 480.837.1148 CELL: 480.332.4742

P.O. Box 18155 • FOUNTAIN HILLS, AZ 85269

Ms. Adams testified that a query of Registrar’s license records revealed no active, inactive or pending license for Roger Thyfault, Western Maintenance & Supply Company or Western Maintenance & Supply Company, Inc. She testified that Roger Thyfault of Western Maintenance & Supply Company is an unlicensed entity. She testified that a query of Registrar enforcement records revealed previous complaints of a similar nature:

2005-[number redacted] Cease and Desist order served

2009-[number redacted] Investigation, prosecution declined

2009-[number redacted] Citation issued, referred to Attorney General’s Office

2005-[number redacted] Cease and Desist order served

2013-1767 Warning letter sent

2015-4909 Investigation closed/insufficient evidence

2003-[number redacted] Investigation found guilty /referred to Attorney General’s

Office.

On November 27, 2017, Ms. Adams caused a cease & desist order and a civil citation to be issued to Roger Thyfault that was served by U.S. Certified Mail, for Advertising without a License. The civil citation assessed a fine in the amount of $1000.00 dollars.

Ms. Adams testified that the amount of the penalty assessed in this case was less than half of what the statute permits for such conduct. She explained that Registrar policy provides that persons violating the unlicensed contractor or unlicensed advertising provisions of the law who are first offenders are either provided a letter of warning or, depending upon the seriousness of the offense, fined under $500.00. However, for those who are repeat offenders, the fines are progressively increased. A second offender’s fine is bumped up to $1,000.00 per offense, per day. A multiple offender facing 3 or more offenses may be fined up to $2,500.00 per occurrence per day.

Ms. Adams testified that because Mr. Thyfault has had one prior offense with a cease and desist order whose citation was forwarded to the Attorney General’s Office for collection, then the citation was confirmed since it had been reduced to a judgment and forwarded to the AG’s office for collection. She testified that it was appropriate in her estimation that the citation result in a fine rather than a mere warning and that the fine ought to be stepped up to $1,000.00 level rather than a level that would otherwise be afforded for a first-offender because the Respondent had already received a citation that was confirmed in the past..

Respondent, Mr. Thyfault’s testimony in his Case-In-Chief presented a number of admissions that demonstrated not only had he been advertising licensed contractor services without a license in telephone book yellow page ads for a number of years, but that he has been engaging in unlicensed contracting for decades. He testified:

A. The phone book yellow page ads in evidence are advertisements that Mr. Thyfault used to promote his repair and construction business. He created the copy in the ads, arranged for the ads to run – not just in the Fountain Hills telephone book but in other publications as well - and aphorized the advertisement’s publication and paid for them to be published.

B. He has taken two exams by the Registrar to get his contractors’ license but failed those exams. He said he does not know, in fact, why his license was denied. He stated he has never appealed his license denials.

C. All of the jobs he has taken have required him to obtain a building permit.

D. The typical cost of the projects he works are at least twenty thousand dollars each. He averages about 40 projects per year and in 2018 has done about 10 jobs as of the date of his hearing. His work has been reduced in 2018 because of his personal health problems that have restricted his ability to work as much as he is used to.

E. From the years 2015 through 2017 his gross income has averaged about $150,000.00 per year from the contracting work he has performed.

F. Mr. Thyfault testified that the building, roofing, repair and other contracting work he does is not minor work and is not casual work to him. He stated “[This work] is how I make a living.”

G. Mr. Thyfault testified that he also advertises currently on the internet where he owns a website devoted solely to his company, Western Maintenance & Supply Company or Western Maintenance & Supply Company, Inc. The website claims:

i. “[He has] the hard work and ethics that his dad and grandad instilled in him at an early age. As a result, those early years are what made it possible for Roger to own a successful business for 35 years in Arizona against all the odds. After all, when you choose to work in a state like Arizona without a license you better be good or you will end up in jail.”

ii. The website claims Western Maintenance & Supply Company or Western Maintenance & Supply Company, Inc. “is a licensed contractor”

iii. On the home page of the site are numerous photographs Mr. Thyfault testified depicted the in-progress work on projects that the Respondent had completed. He testified that these photos were of projects that he charged in excess of $20.000.00 per job and were projects that required he pull a building permit.

iv. The home page of the site displays a half page photograph of the Respondent, Mr. Thyfault, standing in front of his company work van. The van has a colorful, attractive and eye-catching decal wrap which displays the Western Maintenance & Supply Company and its telephone number in large letters across the van and has the words “Roofing” and “Painting” written on the front door. In the photo there is no ROC number on the van. Respondent admitted on the record that no ROC contractor license number appears on the van.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 41-1092 et seq., A.R.S. §32-1151 and A.R.S. §32-1165.

Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The credible evidence presented at hearing established by a preponderance of the evidence that Respondent Roger Thyfault d/b/a Western Maintenance & Supply Company, a/k/a Western Maintenance & Supply Company, Inc. did violate A.R.S. §32-1165 by Advertising without a License in the Fountain Hills area telephone yellow pages; by the distribution and use of a business card of Roger Thyfault d/b/a Western Maintenance & Supply Company, a/k/a Western Maintenance & Supply Company, Inc.; by the full vehicle decal wrap on the business van of Respondent Roger Thyfault d/b/a Western Maintenance & Supply Company, a/k/a Western Maintenance & Supply Company, Inc. and by the posting of the website of Respondent Roger Thyfault d/b/a Western Maintenance & Supply Company, a/k/a Western Maintenance & Supply Company, Inc.

The Respondent does not qualify for the “handyman exemption” provided under A.R.S. § 32-1121(A)(14) et seq, because he typical cost of the projects Respondent works are at least twenty thousand dollars each, the building, roofing, repair and other contracting work he does is not minor work and is not casual work to him and because all of the jobs he has taken have required him to obtain a building permit.

The credible evidence presented at hearing established by a preponderance of the evidence that Respondent Roger Thyfault d/b/a Western Maintenance & Supply Company, a/k/a Western Maintenance & Supply Company, Inc. did violate A.R.S.§32-1151 by Contracting Without A License by a demonstrated pattern of “engag[ing] in the business of..., act[ed] or offer[ed] to act in the capacity of or purport[ed] to have the capacity of a contractor without having a contractor's license in good standing in the name of ...” Roger Thyfault d/b/a Western Maintenance & Supply Company, a/k/a Western Maintenance & Supply Company, Inc.

The scope of the cease and desist order and the violations listed in the citation, by a preponderance of the evidence, are supported by the evidence, are correct, fair and well within the duty and powers of the Registrar of Contractors to order.

The total amount of a $1,000.00 penalty assessed in the citation, by a preponderance of the evidence, is not an abuse of the Registrar’s statutory authority, is supported by the evidence as proper and reasonable based on the Respondent’s repeated pattern of unlawful conduct. The $1,000.00 penalty assessed in the citation is reasonable in light of the facts presented and should be affirmed. [Exhibit C-1].

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the appeal of Respondent Roger Thyfault d/b/a Western Maintenance & Supply Company, a/k/a Western Maintenance & Supply Company, Inc. be denied.

FURTHER IT IS RECOMMENDED this matter be remanded to the Registrar of Contractors for whatever further action, if any, the Registrar deems necessary and proper.

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 40 days from the date of that certification.

Done this day, March 3, 2018

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors