ALJDEC decisions subject to certification as final

2018A-1849-CPA-ROC · Registrar of Contractors · 2018-08-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

Leonard Dennis Penning,

No. 2018A-1849-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 1, 2018

APPEARANCES: Respondent Leonard Dennis Penning appeared on behalf of himself. Assistant Attorney General Thomas Raine appeared on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

1. Respondent Leonard Dennis Penning was not a licensed contractor in the State of Arizona in 2018. See Exhibit 5. The Registrar revoked Mr. Penning’s licenses to contract in 2012 and 2015. See id.

2. On or about April 11, 2018, Mr. Penning entered into a contract for $4,000 to install a fence at 9401 Manley Drive, Prescott Valley, Arizona. See Exhibit 2.

3. On or about April 11, 2018, Mr. Penning filed a wall permit application to construct the fence with the Prescott Valley Community Development Department.

See Exhibit 3.

4. On April 26, 2018, the Arizona Registrar of Contractors (“Registrar”) issued a Cease & Desist Order and Civil Citation to Mr. Penning to cease and desist all unlicensed contracting and advertising in the State of Arizona. See Exhibit 1. The Registrar alleged that Mr. Penning was contracting without a license, which is a violation of Ariz. Rev. Stat. section 32-1151. See id. The Registrar also assessed a civil penalty in the amount of $1,500.

5. On June 12, 2018, the Registrar issued a Notice of Hearing on Citation and Civil Penalty setting the above-captioned matter for hearing on August 1, 2018, at the Office of Administrative Hearings in Phoenix, Arizona.

6. The Notice of Hearing shows that the hearing was to address the charges in the Citation issued and the assessment of a civil penalty.

7. At hearing, the Registrar presented the testimony of Daniel Oen, Registrar Investigator, and submitted exhibits 1 through 5. Mr. Penning testified on behalf of himself.

8. At hearing, it was undisputed that Mr. Penning was not licensed at the time that he entered into the contract and field a permit application with Prescott Valley to install a fence. Mr. Penning contended that his licenses should never have been revoked.

CONCLUSIONS OF LAW

The Registrar bears the burden persuasion. Ariz. Rev. Stat. section 41-1092.07(G)(3).

The party asserting a claim, right, or entitlement has the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. Ariz. Admin. Code section R2-19-119(B).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code section R2-19-119(A).

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).

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. section 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).

Ariz. Rev. Stat section 32-1165 provides that:

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.

9. Arizona contracting law prohibits a person from acting as a contractor without a license. The law allows an exemption from licensure, with certain limitations, for a “handyman.” An unlicensed handyman can perform construction work, with certain exclusions, such as that the work does not require a permit, as long as the aggregate price for the job, including labor and materials, does not exceed $1,000.00. The Registrar can order a person who performs contracting without a license and who is not exempt from licensure to cease and desist such activity and may impose a civil penalty of between $200.00 and $2,500.00 for each violation, but not more than $2,500.00 per day.

10. The preponderance of the evidence shows that Mr. Penning acted as an unlicensed contractor, which is a violation of Ariz. Rev. Stat. section 32-1151.

ORDER

Based on the foregoing, it is recommended that the Registrar affirm the finding that Respondent Leonard Dennis Penning violated Ariz. Rev. Stat. section 32-1151, and impose a Civil Penalty in the amount of $1,500.00 for the unlicensed contracting violation. The $1,500.00 Civil Penalty shall be paid in certified funds to the Registrar on or before the effective date of the 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, August 16, 2018.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors