FINACT2018A-05913-ROC.pdf

2018A-05913-ROC · Registrar of Contractors · 2019-05-10

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

IN THE MATTER OF THE CIVIL PENALTY Case No. 2018-05913 CITATION ISSUED TO: Docket No. 2018A-05913-ROC Neil Putrus Younan, FINAL ADMINISTRATIVE DECISION AND RESPONDENT ORDER

Under A.R.S. § 41-1092.08(B), the Registrar may review the administrative law judge’s written

decision and accept, modify, or reject it. If the Registrar accepts that decision, then the administrative

law judge’s decision constitutes the final administrative decision in the case. A.R.S. § 41-

1092.08(F)(1).

REGISTRAR’S ACCEPTANCE

In this case, a hearing was held, and the administrative law judge issued a written decision. See

Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts

it.

CONCLUSION

Because the Registrar has accepted the administrative law judge’s decision, that decision is the

final administrative decision in this case and becomes effective June 18, 2019

IT IS ORDERED that Respondent pay a civil penalty in the amount of $1,000.00 payable to the

Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to

the Registrar’s physical address or be mailed to:

Registrar of Contractors P.O. Box 6748 Phoenix, AZ 85505-6748

REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762

Signed May 9, 2019.

REGISTRAR OF CONTRACTORS /s/ Joseph Citelli Joseph Citelli, Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail May 9, 2019 to: Respondent Neil Putrus Younan 7431 W Hatcher Rd Peoria, AZ 85345

AND copy electronically mailed this same date to:

Registrar’s Counsel John Tellier, Esq., Assistant Attorney General Office of Administrative Hearings Randolph D. Wolfson, Administrative Law Judge

Case No. 2018-05913/tw

REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 4.30.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors, No. 2018A-05913-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE Neil Putrus Younan, DECISION RESPONDENT

HEARING: April 10, 2019 APPEARANCES: Mike Nation, ROC Compliance Insp., Thomas Raine, Esq., Asst. Attorney General as counsel for the ROC, Neil P. Younan, Respondent. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________ FINDINGS OF FACT 1. On January 30, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Citation and Civil Penalty setting the above-captioned matter for hearing on April 10, 2019. On April 10, 2019 hearing was convened before the Office of Administrative Hearings, an independent agency.1 2. ROC presented the testimony of Mike Nation, one of its investigators. 3. Respondent Neil P. Younan, owner and operator of OurCare Handyman Services [hereinafter “Younan”] appeared at the hearing. Mr. Younan admits that at all times relevant to this proceeding that Younan is not a licensed Arizona contractor. 4. On December 17, 2018, Younan received delivery2 of the Cease and Desist Order and a Citation in ROC case number 2019-059133 imposing a $1,000.00 Civil Penalty issued by Investigator Mike Nation for Younan’s Advertising Without a License in violation of A,R,S, §32-1165 in case number 2017-1128.4

Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this case, including but not limited to the Registrar’s Public Access Website. See, Agency Record, Exhibit 1, bate stamped page #00004. The United States Postal Service tracking information shows that Mr. Younan received the Cease and Desist Order on December 17, 2018. See, Agency Record, Exhibit 2, Page # ROC 00008. 4 See, Agency Record, Exhibit 1 “Cease and Desist Order,” ROC #00002. Mr. Nation confirmed that he had had a previous encounter with Mr. Younan from a prior Complaint in 2017 involving Younan’s Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 4.30.2019 ROC LEGAL

5. Mr. Nation testified that on December 12, 2018 he identified Younan’s advertisement for handyman services on a “Yelp” listing5 and on the OurCare website. The Yelp listing and the OurCare website6 “…advertised Handyman, Pressure

Washers, and Painter, along with Residential Services, Commercial Services, Plaster &

Drywall Services, Caulking and Pressure Washing.”7 Mr. Nation testified that the Yelp

site contained none of the “Not a Licensed Contractor” warnings required by law.8 Mr.

Nation confirmed that he had had a previous encounter with Mr. Younan from a prior

Complaint in 2017 involving9 Younan’s Advertising Without a License in violation of

A.R.S. §32-1165.10

6. On December 13, 2019, Mr. Nation issued to Mr. Younan a Cease &

Desist Order and Complaint in which Mr. Younan was assessed a civil penalty of

$1,000 for violating.

7. Mr. Younan did not dispute that he had advertised on Our Care’s website

and on Yelp without posting a disclosure that he was “Not a Licensed Contractor.” He

explained that his son provides all of the services for his social media and internet

advertising. Younan explained that he did not know the law required his posting of the

“Not a Licensed Contractor” admonition.11 8. At the hearing on April 10, 2019, Mr. Younan promised, on the record, that he would take down his Facebook advertising and would within one week, properly post the required “Not a Licensed Contractor” admonition. As of April 29, 2019, Younan still persists in advertising on the Yelp site without posting on its advertising that it is “Not a Licensed Contractor”

violation of Advertising Without a License in violation of A,R,S, §32-1165. At that time an ROC Warning Letter was issued Younan https://www.yelp.com/biz/our-care-peoria http://www.ourcare.com See, Agency Record, Exhibit 2, Page #00008. A.R.S. § 32-1121(14)(c) [The Handyman Exception]. Agency Record, Exhibit 2, Page # ROC 00009... Prior to the Cease and Desist Order and Citation in this case, on March 7, 2017, Mr. Nation issued a Warning Letter from the ROC to Mr. Younan “…related to the advertisement violations (via signage on truck, Website and Facebook Listing). A.R.S. § 32-1121(14)(c) [The Handyman Exception] does not apply unless the advertisement includes a statement that the person is not a licensed contractor). RECEIVED 4.30.2019 ROC LEGAL

… CONCLUSIONS OF LAW

1. ROC bears the burden persuasion. A.R.S § 41-1092.07(G)(3).

2. The standard of proof on all issues in this matter is that of a

preponderance of the evidence. A.R.S.§ R2-19-119.

3. 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).

4. The preponderance of the evidence shows that by advertising on the

internet’s “Yelp” pages without including the “Not a Licensed Contractor” admonition,

Mr. Younan has violated A.R.S. § 32-1165.

5. Mr. Younan is subject to a civil penalty of up to $2500 for each violation of

A.R.S. § 32-1165. Considering the facts, circumstances and Mr. Younan’s prior history of violating of A.R.S. § 32-1165, the civil penalty in this case of $1000 is appropriate. RECOMMENDED ORDER IT IS RECOMMENDED that it be ordered that on or before thirty days after the effective date of the final order in this matter Hector M. Younan must pay to the Registrar in certified funds the combined total of $1,000.00. 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 is forty days after the date of that certification. Done this day, April 29, 2019.

/s/Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

In light of Mr. Younan’s history of receiving a Warning Letter in 2017 for conduct violating the same statutes and regulations, his assertion that he was not aware of his duty to post “Not a License Contractor” on all advertising is not credible. This is the sole defense offered by Mr. Younan. RECEIVED 4.30.2019 ROC LEGAL

Jeffrey Fleetham, Director Registrar of Contractors