ALJDEC decisions subject to certification as final
2018A-2050-CPA-ROC · Registrar of Contractors · 2018-08-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Arizona Registrar of Contractors,
IN THE MATTER OF THE
CIVIL PENALTY CITATION ISSUED TO:
Coleman Hartman
No. 2018A-2050-CPA-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 3, 2018, 1:00 P.M.
APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine; Coleman Hartman appeared on his own behalf
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
Based on the evidence in this matter, the undersigned Administrative Law Judge hereby recommends that the Registrar of Contractors (“Registrar”) affirm the Cease and Desist Order and civil penalty issued to Coleman Hartman (“Respondent”) on May 10, 2018.
FINDINGS OF FACT
Background and Procedure
Respondent is not a licensed contractor in the State of Arizona.
2. The Registrar’s assigned investigator, Manuel Bermudez (Investigator), issued Respondent a Cease and Desist Order and Civil Citation dated May 10, 2018, for failing to comply with A.R.S. § 32-1165 (advertising contracting services without a license) (Registrar Exhibit 1). The proposed civil penalty was $1,000.00 for the violation of A.R.S. § 32-1165.
3. Respondent requested an administrative hearing and the Registrar forwarded the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing.
4. The Registrar issued a Notice of Hearing that set a hearing for August 3, 2018, at 1:00 P.M. At the hearing, Investigator Manuel Bermudez testified on behalf of the Registrar. Respondent Coleman Hartman testified on his own behalf by telephone.
5. At the hearing, the Investigator testified on behalf of the Registrar that he saw a parked blue Dodge pickup truck that had a sign on its door for “Hartman’s Handyman Service” with a telephone number. (Registrar Exhibit 2). The sign on the door did not disclose whether Hartman’s Handyman Service was or was not a licensed contractor. He further stated that he did a search of the license plate on the pickup for the registered owner and discovered that it was registered to Respondent.
6. The Investigator further testified that he had had prior dealings with Respondent regarding Respondent’s advertising without a license. He stated that the first such dealing was in 2014 and that, not including the present matter, there had been six other instances since. He indicated that Respondent pled guilty in 2015 to advertising without a license. He further indicated that since that time, the Registrar had warned Respondent about advertising but that Respondent had continued to violate the statute.
7. Respondent testified that he agreed that he had done what the Registrar accused him of, but that he did it “unknowingly.” He stated that he had been working under the “handyman’s exception,” but that he had since moved to Texas and was no longer working in Arizona. He stated that he had purchased the truck that had another contractor’s logo on it and he had covered up that logo with his own logo. He stated that he had since added the disclaimer language after the citation had been issued. (Registrar Exhibit 4).
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction.
2. The Registrar bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
3. A.R.S. § 32-1101(A)(3) defines “Contractor” in relevant part as follows:
"Contractor" is synonymous with the term "builder" and means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that, for compensation, undertakes to or offers to undertake to, purports to have the capacity to undertake to, submits a bid or responds to a request for qualification or a request for proposals for construction services to, does himself or by or through others, or directly or indirectly supervises others to:
(a) Construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or any other structure or work in connection with the construction.
4. A.R.S. § 32-1165 regarding advertising contracting services without a required license 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.
5. A.R.S. § 32-1166(A) regarding the Registrar’s authority to impose civil penalties and to issue cease and desist orders provides in relevant part as follows:
A. In addition to all other remedies, when it appears to the registrar, either upon complaint or otherwise, that any person, firm, partnership, corporation, association or other organization, or a combination of any of them, has engaged in or is engaging in any act of contracting, practice or transaction which constitutes a violation of this chapter, or any rule or order of the registrar, the registrar may serve upon such person, firm, partnership, corporation, association or other organization not currently licensed under this chapter, by certified mail or by personal service, a cease and desist order requiring the person, firm, partnership, corporation, association or other organization to cease and desist immediately, upon receipt of the notice, from engaging in such act, practice or transaction. In conjunction with the cease and desist order, the registrar may issue a citation for a violation. Each citation shall be in writing and shall clearly describe the violation for which the citation was issued. Each citation shall contain an order to cease and desist and an assessment of 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....
6. Arizona Administrative Code Rule 4-9-131 regarding permissible aggravating and mitigating factors to be considered when assessing a civil penalty provides in relevant part as follows:
In assessing a civil penalty as provided for under A.R.S. § 32-1166(A), the Registrar shall give due consideration to whether the person cited or any individual acting on that person’s behalf has committed one or more of the following acts in determining the gravity of the cited violation:
1. Falsely represented to be a licensed contractor.
2. Failed to perform any work for which money was received.
3. Executed or used any false or misleading documents for the purpose of inducing a person to enter into a contract or to pay money for work to be performed.
4. Made false or misleading statements for the purpose of inducing a person to enter into a contract or to pay money for work to be performed.
5. Failed or neglected to apply funds which were received for the purpose of obtaining or paying for services, labor, materials, or equipment.
6. Performed work that was or had the potential to become hazardous to the health, safety, or general welfare of the public.
7. Performed work that deliberately was in violation of building codes, safety laws, labor laws, workers’ compensation laws, or unemployment insurance laws.
8. Performed work that failed to meet minimum acceptable trade or industry standards or practices or was not performed in a good and workmanlike manner.
9. Has committed any other act which would otherwise be cause for disciplinary action if the person cited had been properly licensed pursuant to A.R.S. Title 32, Chapter 10.
10. Has committed two or more prior violations.
11. Performed work that has caused loss or damage to the structure, its appurtenances, or property being worked upon or has caused loss or injury to any person.
7. In this case, the Registrar has established that Respondent was advertising for construction services for which a contractor’s license was required. Respondent did not dispute that did not have a contractor’s license or that he had been advertising on his pickup truck for construction services. These activities support a finding that Respondent is a “contractor” as defined under A.R.S. § 32-1101(A)(3) and advertising for services for which a contractor’s license was required in violation of A.R.S. § 32-1165.
8. Respondent cannot avail himself of the so-called handyman’s exemption. The exemption provided under A.R.S § 32-1121(A)(14) (persons not required to be licensed) does not apply because Respondent advertised for contracting services without disclosing that he was not a licensed contractor. Section 32-1121(A)(14) provides:
A. This chapter shall not be construed to apply to:
...
14. Any person other than a licensed contractor engaging in any work or operation on one undertaking or project by one or more contracts, for which the aggregate contract price, including labor, materials and all other items, but excluding any electrical fixture or appliance that was designed by the manufacturer, that is unaltered, unchanged or unmodified by any person, that can be plugged into a common household electrical outlet utilizing a two-pronged or three-pronged electrical connector and that does not use any other form of energy, including natural gas, propane or other petroleum or gaseous fuel, to operate or is attached by a nail, screw or other fastening device to the frame or foundation of any residential structure, is less than one thousand dollars. The work or operations that are exempt under this paragraph shall be of a casual or minor nature. This exemption does not apply:
...
(c) To a person who utilizes any form of advertising to the public in which the person's unlicensed status is not disclosed by including the words "not a licensed contractor" in the advertisement.
Respondent did not dispute that he did not include such a disclosure until after the Citation had been issued.
9. In assessing the civil penalty and the gravity of Respondent’s violation, aggravating factors that were present include one previous conviction of Respondent for advertising and other violations for advertising committed by Respondent. These previous violations are sufficient to warrant a civil penalty in this current matter in the amount of $1,000.00.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that the Registrar affirm the finding that Respondent violated A.R.S. § 32-1165 and affirm the decision to assess a civil penalty under A.R.S. § 32-1166 of $1,000.00 for the violation of A.R.S. § 32-1165, 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 will be five days from the date of that certification.
Done this day, August 23, 2018.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors