FINACT2018A-3201-ROC-RHG.pdf

2018A-3201-ROC-RHG · Registrar of Contractors · 2019-03-11

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

IN THE MATTER OF THE CIVIL PENALTY Case No. 2018-3201 CITATION ISSUED TO: Docket No. 2018A-3201-ROC-RHG Kenneth Simms, FINAL ADMINISTRATIVE DECISION AND ORDER RESPONDENT

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. Therefore, the $200.00 civil penalty must be paid no later than

April 15, 2019. Payment must 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 Dated March 6, 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 March 6, 2019 to: Respondent Kenneth Simms 10421 E 39th St Yuma, AZ 85365

Kenneth Simms 8030 La Mesa Blvd #153 La Mesa, CA 91942

John E. Meerchaum, Esq. MEERCHAUM & ORDUNO, PLLC 1455 W 16th St Ste A Yuma, AZ 85364 AND copy electronically mailed this same date to: Registrar’s Counsel John Tellier, Esq., Assistant Attorney General Office of Administrative Hearings Thomas Shedden, Administrative Law Judge

Case No. 2018-3201 / AN

REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 2.21.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY No. 2018A-3201-ROC-RHG CITATION ISSUED TO: ADMINISTRATIVE LAW JUDGE Kenneth Simms, DECISION RESPONDENT.

HEARING: January 25, 2019 APPEARANCES: Kenneth Simms on his own behalf; John Tellier, Esq. for the Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On December 21, 2018, the Registrar of Contractors (“ROC”) issued a NOTICE OF REHEARING ON CITATION AND CIVIL PENALTY setting the above-captioned matter for hearing on January 25, 2019, at the Office of Administrative Hearings in Phoenix, Arizona. 2. The NOTICE OF REHEARING shows that the hearing was to address the charges in the CITATION issued to Respondent Kenneth Simms and the assessment of a civil penalty against Mr. Simms. 3. Mr. Simms appeared and testified on his own behalf. 4. ROC presented the testimony of Ruben Perez, one of its investigators. 5. Mr. Perez received a call from the Yuma County Sheriff’s Office requesting his help investigating the possibility of unlicensed activity. 6. Mr. Perez met with a homeowner, Erna Elliott, who informed him that she had entered into a contract with Mr. Simms under which he did remodeling work in her kitchen, and a second contract in which Mr. Simms did remodeling work in her bathroom. ROC Exhibit 2 is copies of the contracts, which each have the heading “Simms Custom Construction & Remodeling.”

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 2.21.2019 ROC LEGAL

7. Ms. Elliott paid Mr. Simms $5750 for the kitchen contract and $6400 for the bathroom contract using three checks. ROC Exhibit 3 is copies of Ms. Elliott’s checks, two of which are dated May 18, 2018, and the third June 8, 2018.

8. On July 12, 2018, ROC issued to Mr. Simms a CEASE & DESIST ORDER and

CITATION in which ROC alleges that on May 18, 2018, Mr. Simms violated ARIZ. REV.

STAT. section 32-1151 and in which it assessed a civil penalty of $2500.00 against Mr.

Simms.

9. Through a written response to ROC dated August 8, 2018, Mr. Simms

explained that he had been assisting Ms. Elliott because she is his neighbor and that

he told her he could refer her to licensed contractors. At the hearing, Mr. Simms

testified that he never held himself out as a licensed contractor and that he had actually

paid licensed contractors to do the work at issue using the funds that Ms. Elliott had

paid to him.

10. At Mr. Simms’s request, the record was held open to allow him to submit

copies of the checks he had written to the licensed contractors and receipts from those

contractors. Mr. Simms submitted this information along with an affidavit in which he

reiterated that he had not held himself out as a licensed contractor and that he had been helping Ms. Elliott because she is his neighbor. Mr. Simms acknowledged that he did check on the progress of the contractors who were doing the actual work, again as a favor to his neighbor. 11. Mr. Simms’s exhibits and affidavit show that he did pay licensed contractors to do the work at issue and that the total of these payments and material costs were $5750 for the kitchen and $6403.00 for the bathroom. CONCLUSIONS OF LAW 1. ROC bears the burden persuasion. ARIZ. REV. STAT. § 41-1092.07(G)(3). 2. 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 § R2-19-119(B). 3. The standard of proof on all issues in this matter is that of a preponderance of the evidence. ARIZ. ADMIN. CODE § R2-19-119(A). RECEIVED 2.21.2019 ROC LEGAL

4. 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). 5. 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."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” ARIZ. REV. STAT. § 1-211(B).

7. 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).

8. As pertinent to this matter, “Contractor”:

[I]s 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. ARIZ. REV. STAT. § 32-1101(3). RECEIVED 2.21.2019 ROC LEGAL

9. Subject to exceptions that are not applicable in this matter, it is unlawful for a person to act in the capacity of a contractor without being licensed. ARIZ. REV. STAT. § 32-1151.

10. ROC can order a person who is not exempt from licensure and who

engages in contracting without a license to cease and desist such activity and may

impose a civil penalty of between $200.00 and $2,500.00 for each violation. ARIZ. REV.

STAT. § 32-1166.

11. ROC has met its burden to show that Mr. Simms acted as a contractor

without being licensed to do so in violation of section 32-1151. Consequently, he is

subject to a civil penalty. ARIZ. REV. STAT. § 32-1166.

12. Considering, the facts and circumstances of this matter, including that

ROC has not specifically alleged that any of the factors found in ARIZ. ADMIN. CODE

section R4-1-131 are applicable, assessing the minimum penalty of $200 is

appropriate.

ORDER

IT IS ORDERED that on or before thirty days after the effective date of the final order in this matter Kenneth Simms must pay to the Registrar of Contractors $200.00 in certified funds. 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, February 21, 2019. /s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors