ALJDEC decisions subject to certification as final

2018A-3084-CPA-ROC · Registrar of Contractors · 2018-12-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2018 APPEARANCES: Respondent Matthew Anthony Herrera did not appear. Assistant Attorney General Thomas Raine appeared on behalf of the Arizona Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. At all times relevant to this matter, Respondent Matthew Anthony Herrera and Herrera Refrigeration & Air Conditioning were not licensed contractors in the State of Arizona. 2. On October 5, 2017, the Arizona Registrar of Contractors (“Registrar” or “ROC”) issued a Cease & Desist Order (“Order”) wherein Mr. Herrera was ordered to cease and desist all unlicensed advertising in Arizona. 3. The October 5, 2017 Order was issued after Registrar Investigator Daniel Oen discovered business cards for Herrera Refrigeration & Air Conditioning at a gas station in Arizona. The business cards did not include the language “Not a licensed contractor.” Mr. Herrera’s name was listed on the business cards. 4. On June 5, 2018, Registrar Investigators Jim Dimond and Daniel Oen conducted a search for displays of construction advertising in the Greenehaven area of Page, Arizona. 5. For the second time, Investigator Oen discovered business cards which advertised Herrera Refrigeration & Air Conditioning, but did not contain the language “Not a licensed contractor.” (“Herrera”). Mr. Herrera’s name was listed on the business cards. Investigator Oen found the business cards in a gas station in Greenehaven. 6. Investigator Oen gave the business cards to Investigator Cynthia Adams. 7. Investigator Adams conducted an investigation and found that Mr. Herrera nor Herrera Refrigeration & Air Conditioning had active ROC licenses. 8. On July 5, 2018, the Registrar issued a Cease & Desist Order to Matthew Herrera. Thorough the July 5, 2018 Cease & Desist Order, the Registrar alleged that Mr. Herrera had engaged in advertising without a license and assessed a civil penalty in the amount of $1,000. 9. On August 27, 2018, the Registrar issued a Notice of Hearing setting the above-captioned matter for hearing on October 10, 2018. [1] 10. A hearing was held on December 11, 2018. 11. Respondent did not appear. At hearing, the Registrar presented the testimony of Investigator Oen and Investigator Adams. The Registrar also submitted exhibits 1 through 3. 12. Investigator Adams opined that Mr. Herrera would need a contractor’s license to perform work related to refrigeration and air conditioning. The Registrar’s position was that Mr. Herrera was previously ordered to cease unlicensed advertising and failed to do so. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. The Registrar bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See Ariz. Rev. Stat. (“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). 3. Arizona contracting law prohibits a person from advertising without a license.[2] The Registrar can order a person who advertises 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.[3] 4. 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.

5. 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.” With respect to the appropriate amount of civil penalties for violations of A.R.S. § 32-1151, A.R.S. § 32-1166(A) required the Registrar to “adopt rules covering the assessment of a civil penalty that give due consideration to the gravity of the violation and any history of previous violations.” Pursuant to this directive, the Registrar adopted A.A.C. R4-9-131.[4] 6. The Registrar established by a preponderance of the evidence that Respondent advertised without a license in violation of A.R.S. § 32-1165. Because Respondent was previously issued a Cease & Desist Order for unlicensed advertising, the assessed civil penalty of $1,000.00 is warranted. The Tribunal concludes that a civil penalty of $1,000 for advertising without a license is warranted in this case. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar affirm the finding that Respondent Matthew Anthony Herrera violated A.R.S. § 32- 1165 and affirm the imposition of a civil penalty in the amount of $1,000.00 for advertising without a license. The $1,000.00 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 shall be forty (40) days from the date of certification. Done this day, December 11, 2018.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The hearing was continued to December 11, 2018. [2] A.R.S. § 32-1165. [3] A.R.S. § 32-1166(A). [4] A.A.C. R4-9-131 sets forth permissible aggravating factors to be considered, 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.

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