ALJDEC decisions subject to certification as final

2017A-4578-CPA-ROC · Registrar of Contractors · 2018-05-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

Jaime Hernandez

RESPONDENT.

No. 2017A-4578-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 16, 2018 at 8:30 AM.

APPEARANCES: John Tellier, Esq. – Assistant Attorney General appeared as counsel for Registrar of Contractors with Barry Maerker as a witness. No appearance on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

FINDINGS OF FACT

On January 14, 2018, the Registrar of Contractors (“the ROC”), issued a Notice of Hearing setting the above-captioned matter for hearing on February 12, 2018 at 8:30a.m., by the Office of Administrative Hearings in Phoenix, Arizona.

On February 05, 2018, a previously assigned Administrative Law Judge issued a Minute Entry advising the parties that the matter was continued to April 16, 2018 at 8:30a.m., per the request of the ROC.

At the hearing, the ROC presented the testimony of Barry Maerker - Board Investigator, and submitted exhibits 1 through 3. Jaime Hernandez (“Respondent”) failed to appear. Based on the testimony and evidence the Tribunal finds the following facts.

Respondent has never possessed a license issued by the ROC.

Based on a prior unrelated complaint, in June of 2017 the ROC issued a warning to Respondent regarding the advertisement of his purported company, Maricopa Hernandez Painting, for improper advertising.

On September 06, 2017, as the previously assigned investigator on Respondent’s case, Mr. Maerker performed an investigatory internet search on Respondent’s company to ensure he was in compliance with applicable laws and rules governed by the ROC.

Mr. Maerker discovered that Respondent had created a Facebook page for his company, whereby he advertised a number of contracting services in excess of the handyman’s exception. Additionally, Mr. Maerker noted that Respondent had not asserted that he was an unlicensed contractor on any of his ads.

Mr. Maerker performed an additional search on September 27, 2017, to see if Respondent’s adverts had been removed or appropriately modified. All ads were observed still in their previously unedited form.

As a result of his findings, Mr. Maerker issued a Cease and Desist Order to Respondent on September 27, 2017, which included a $1,000.00 civil penalty and appeal instructions.

A Settlement Conference took place between the parties on February 01, 2018, whereby Respondent was offered the chance to obtain his contractor’s license in exchange for the ROC reducing the levied civil penalty. As of the date of the hearing Respondent had not applied for a contractor’s license.

CONCLUSIONS OF LAW

The Notice of Hearing On Citation And Civil Penalty that the ROC mailed to Respondent at his address of record was reasonable, and Respondent is deemed to have received notice of the hearing. See Ariz. Rev. Stat. § 41-1092.04. The ROC has jurisdiction over this matter pursuant to Ariz. Rev. Stat. § 32-1101 et seq.

The ROC bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

The ROC’s burden is a preponderance of the evidence. Ariz. Admin. Code R2-19-119. “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:

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).

Ariz. Rev. Stat. § 32-1121(A)(14) sets forth the “handyman’s exemption” to licensure requirements and provides in relevant part 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 . . . is less than one thousand dollars. The work or operations that are exempt under this paragraph shall be of a casual or minor nature.

Ariz. Rev. Stat. § 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.

Ariz. Rev. Stat. § 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 ROC established that the internet advertisements that it attributed to Respondent did not include the disclaimer, “Not a Licensed Contractor.” There were no defenses raised, affirmative or otherwise, to relieve Respondent of culpability for the advertisements in question.

Ariz. Rev. Stat. § 32-1166(A) authorizes the ROC to assess a civil penalty against a person who has been found to have advertised that he is able to perform a service for which a contractor’s license is required in violation of Ariz. Rev. Stat. § 32-1165. Because the ROC showed by a preponderance of the evidence that Respondent is responsible for the online unlicensed advertisements that formed the basis of the ROC’s case against him, the ROC established cause to assess a $1,000.00 civil penalty against him.

ORDER

Based on the foregoing,

IT IS ORDERED that the ROC affirm the finding that Respondent violated Ariz. Rev. Stat. § 32-1121(A)(14) and assess a civil penalty of $1,000.00 to be paid by certified funds to the ROC on or before the effective date of the ROC’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 will be five days from the date of that certification.

Done this day, May 04, 2018

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors