ALJDEC decisions subject to certification as final

2018A-05913-ROC · Registrar of Contractors · 2019-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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 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] ROC presented the testimony of Mike Nation, one of its investigators. 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. On December 17, 2018, Younan received delivery[2] of the Cease and Desist Order and a Citation in ROC case number 2019-05913[3] 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] Mr. Nation testified that on December 12, 2018 he identified Younan’s advertisement for handyman services on a “Yelp” listing[5] and on the OurCare website. The Yelp listing and the OurCare website[6] “…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 involving[9] Younan’s Advertising Without a License in violation of A.R.S. §32-1165.[10] 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. 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] 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” … CONCLUSIONS OF LAW ROC bears the burden persuasion. A.R.S § 41-1092.07(G)(3). The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.R.S.§ R2-19-119. 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). 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. 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:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] 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. [2] 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. [3] 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 violation of Advertising Without a License in violation of A,R,S, §32-1165. At that time an ROC Warning Letter was issued Younan [5] https://www.yelp.com/biz/our-care-peoria [6] http://www.ourcare.com [7] See, Agency Record, Exhibit 2, Page #00008. [8] A.R.S. § 32-1121(14)(c) [The Handyman Exception]. [9] 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). [10] 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). [11] 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.

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