ALJDEC decisions subject to certification as final

2018A-04697-ROC · Registrar of Contractors · 2019-05-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 29, 2019 APPEARANCES: Respondent William James Lee appeared on his own behalf. The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ Respondent appealed a Civil Citation issued by the Registrar of Contractors (Registrar) for contracting without a license. The Civil Citation imposed aggregate civil penalties in the amount of $1000.00. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law, and Recommend Order are made, finding a violation and recommending assessment of a $200.00 civil penalty. FINDINGS OF FACT Background Respondent is not a licensed contractor in the State of Arizona. On or about August 22, 2018, Investigator Mike Nation issued a warning letter to William James Lee (Respondent) for advertising without a license based on Investigator Nation’s observations of Respondent’s vehicle having signage that did not include a notation of “Not a Licensed Contractor.” On or about October 3, 2018, Investigator Nation again observed Respondent’s vehicle while in the parking lot of Home Depot in Glendale, Arizona. Investigator Nation noted that Respondent’s truck still displayed the signage advertising his services as “Mr. Maintenance” with a telephone number, but did not include the notation of “Not a Licensed Contractor.” The signage advertised General Home Maintenance, Remodeling, Renovation, Landscaping, Painting-Interior/Exterior, with Free Estimates. Investigator Nation searched the Registrar’s license records and found no active, inactive, or pending license status to Respondent. A search of the Arizona Corporation Commission found Mr. Maintenance to be an active trade name registered on August 19, 2010, by Respondent as a Home Maintenance/Home Improvement business. Investigator Nation determined that Respondent had violated the provisions of A.R.S. § 32-1165 (Advertising without a license). A Cease & Desist Order was issued to Respondent on October 3, 2018, for violating the provisions of A.R.S. § 32-1165. A total of $1000.00 in civil penalties was assessed. Respondent testified that he was guilty of the alleged violation. Respondent acknowledged that he failed to take any remedial action after he received the warning letter. Respondent asserted he did not operate over the handyman exception and has since corrected the issue with the signage. Respondent indicated that after receipt of the Cease & Desist Order he had been attempting to get his license, but medical issues prevented him from doing so. Respondent stated that he was still pursuance licensure. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. The Registrar 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). Arizona contracting law prohibits a person from acting as a contractor without a license.[1] 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. § 32-1166(A) authorizes the Registrar to assess “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.” The evidence established a violation of Arizona contracting laws. Based on the specific and unique circumstances in this matter, the Tribunal concludes that a total civil penalty of $200.00 is warranted in this case. RECOMMENDED ORDER Based upon the foregoing, it is recommended that the Registrar affirm the finding that Respondent violated A.R.S. § 32-1165, reverse the decision to assess a civil penalty in the amount of $1000.00, and assess a civil penalty of $200.00 to be paid in certified funds to the Registrar on or before the effective date of the Registrar’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 shall be forty (40) days from the date of certification. Done this day, May 17, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1164(A)(2).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826