ALJDEC decisions subject to certification as final

2017A-6063-CPA-ROC · Registrar of Contractors · 2018-08-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

Ira Jerome Poland

No. 2017A-5917-CPA-ROC and 2017A-6063-CPA-ROC [Consolidated]

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 31, 2018

APPEARANCES: Rubin Perez, Registrar’s Investigator, Thomas Raine, Esq., Asst. Attorney General, Attorney for the Registrar

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing regarding a timely Request For Hearing by Respondent, Ira Jerome Poland, [hereinafter “Poland”], pertaining to the merits and the propriety of the amounts fined for two separate Civil Citations issued to Respondent in 2017-5917 and 2017-6063. These matters were consolidated for hearing.

In Case 2017-5917, the Cease and Desist Order and its Civil Citation were issued on June 1, 2017 and January 17, 2018, respectively.

The Respondent timely filed its request for hearing on both 2017-5917 and 2018-6063 pursuant to his May 30, 2018 correspondence to the Registrar. The Respondent’s request for hearing demonstrates the Respondent received actual notice of the citations in this case.

In accordance with A.R.S. § 41-1092.05, a Notice of Hearing was timely mailed by the Registrar of Contractors to Respondent at the address provided by the Respondent in its Request for Hearing.

A hearing was conducted on July 31, 2018 before the Office of Administrative Hearings.

At the July 31, 2018 hearing, Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, respondent did not appear through an authorized member, employee or attorney. Consequently, Respondent did not present any evidence.

At the hearing Rubin Perez, Investigator for the Registrar, testified that he was the investigator on the two separate Citations under review in this case.

Regarding 2017-5917, Mr. Rubin testified that he received information Yuma, Arizona homeowner, Dr. Ghebru Woldenmichael about an unlicensed contractor he hired to upgrade and repair his residence swimming pool. Mr. Perez’s investigation determined that the Responded had represented to Dr. Woldenmichael that Respondent was an Arizona and Nevada licensed contractor. Dr. Woldenmichael identified Respondent Jerome Poland d//b/a Tri-State Pools & Spa as the contractor. Mr. Perez testified that neither the Respondent nor Tri-State Pools & Spa are licensed contractors in Arizona. Dr. Woldenmichael paid Jerome Poland, personally by checks, the sum of $8,900.00 time, Mr. Perez testified that the Respondent had no prior offenses according to the Registrar’s records. On June 1, 2017, the Respondent was issued a Cease and Desist Order and Citation with a Civil Penalty imposed of $1,500.00 for Contracting Without a License This Citation [along with the Citation in 2018-6063] were personally served upon Mr. Jerome Poland On the morning of December 27, 2017, Investigator Perez received a telephone call from Mr. Robert Houser identifying himself as a partner of the Respondent. Mr. Houser discussed both the 2017-5917 and 2017-6063 Citations with Mr. Perez and admitted that the Respondent and he both worked on the job sites that were the subject of the Citations. On January 17, 2018, Mr. Perez spoke to Mr. Jerome Poland by telephone to discuss the two Citations. Mr. Poland admitted to contracting to re-plaster the Woldenmichael swimming pool. He did not recall how much money was charged for the job. Mr. Poland admitted he did not have an Arizona Contractors License. He advised that Mr. Mr. Houser was his partner.

Regarding the Citation in 2017-6063, Mr. Perez testified that on December 4, 2017, he received a report from Yuma County Sheriff’s Office Deputy Pesce advising that Ira Jerome Poland was Contracting Without a License. Investigator Perez contacted the alleged victim, Mr. Christopher Wrubleuski. Mr. Wrubleuski advised that Ira Jerome Poland d/b/a House Healer contracted to remodel the Wrubleuski residence in Yuma, Arizona. Mr. Perez’s investigation disclosed that Mr. Wrubleuski had paid Jerome Poland d/b/a House Healer, $8,900.00 of contracted amount of $16,305.00 for the job. Mr. Wrubleuski has filed a Complaint with the Registrar for poor workmanship and abandonment. At the time of the conduct related to the Citation in 2017-6063, Mr. Perez testified that had one prior Citation for Contracting Without a License. On December 27, 2017, Mr. Perez received a call from Robert Houser who identified himself as Poland's partner in the business. Mr. Houser admitted to working without a contractor's license under the handyman exception. Houser admitted to working with Respondent Poland at the Wrubleuski residence to remodel the house. Mr. Houser admitted the remodel included replacing the air conditioning unit, flooring, cabinets and countertops. On January 17, 2018, Mr. Perez spoke to Jerome Poland by telephone. During the call, Mr. Poland admitted to contracting to remodel the Wrubleuski house, including replacing an air conditioning unit, flooring and cabinets. Mr. Poland also added that he did not remember how much that contract was for as they did not do a written contract. Mr. Perez asked Mr. Poland if he had a contractor's license and he said no. On January 17, 2018 a Cease and Desist Order with a $2,500.00 fine for Contracting Without a License was issued by Mr. Perez. The Citation was hand-delivered to Mr. Poland.

CONCLUSIONS OF LAW

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. 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:

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).

“At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(3).

The Respondent presented no evidence.

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995).

Inasmuch as Respondent has presented virtually no evidence, then Respondent has failed to meet its burden of proof.

Arizona’s Handyman Exemption to the requirement to be licensed as a contractor [See A.R.S. § 32-1121(A)(14)(a)] provides that in order to qualify for such exemption from licensing, the aggregate contract price be under $1,000.00. See Arizona Commercial Diving Services, Inc. v. Applied Diving Services, Inc., 212 Ariz. 208, 213, 129 P.3d 497, 502 (App. 2006). Both Civil Citations issued to Respondent in 2017-5917 and 2017-6063 involve contracts and payments in each which far exceed $1,000.00. By definition, the Respondent is not entitled to the Handyman Exemption.

In both Citations 2017-5917 and 2017-6063, by a preponderance of the evidence, Respondent Ira Jerome Poland was unlawfully contracting in Arizona without an Arizona contractors license.

Mr. Perez’s customary policy is that when a first offense Citation is issued, a $1,500.00 Civil Penalty is imposed. In the case of a second offense for contracting without a license, a $2,500.00 Civil Penalty is customarily imposed.

It is found that in 2017-5917, the $1,500.00 Civil Penalty imposed is reasonable and justified.

In 2017-6063, it is found that the $2,500.00 Civil Penalty imposed is reasonable and justified.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Civil Penalties levied against Respondent Ira Jerome Poland in 2017-5917 and 2017-6063 be affirmed as justified and reasonable.

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, August 12, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors