ALJDEC decisions subject to certification as final

2018A-3201-ROC-RHG · Registrar of Contractors · 2019-02-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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 is copies of the contracts, which each have the heading “Simms Custom Construction & Remodeling.” 7. Ms. Elliott paid Mr. Simms $5750 for the kitchen contract and $6400 for the bathroom contract using three checks. ROC Exhibit 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). 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). 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 -----------------------

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