ALJDEC decisions subject to certification as final

2018A-3528-CPA-ROC · Registrar of Contractors · 2019-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 15, 2019 APPEARANCES: No one appeared for Respondent; John Tellier, Esq. for the Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On October 2, 2018, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Citation and Civil Penalty setting the above-captioned matter for hearing on November 8, 2018 at the Office of Administrative Hearings in Phoenix, Arizona. The matter was continued and the hearing was conducted on February 15, 2019. 2. The Notice of Hearing shows that the hearing was to address the charges in the Citation issued to Respondent Alan Goldberg and the assessment of a civil penalty against Mr. Goldberg. 3. On January 11, 2019, the Office of Administrative Hearings received from Mr. Goldberg a letter showing that he would be out of the country on February 15, 2019, that he was interested in reaching a “plea deal” so that he did not have to appear in person, and if no such deal could be reached he had “no problem” paying the fines. 4. Mr. Goldberg was not present at 9:00 a.m. February 15, 2019, and the matter was convened in his absence a few minutes later. 5. ROC confirmed that it had received the letter from Mr. Goldberg showing that he would not be at the hearing, and explained that its attempts to reach Mr. Goldberg to discuss the matter had been unsuccessful. 6. ROC presented the testimony of Bob McQuien, one of its investigators. 7. On July 18, 2018, ROC received a “hotline” tip showing that Mr. Goldberg was acting as an unlicensed contractor. 8. Mr. McQuien was assigned to investigate the matter. 9. Mr. McQuien located a Facebook page showing that Mr. Goldberg, acting under the name Havasu Contractors, was advertising that it was Lake Havasu’s premier construction and remodel contractor. That Facebook page included photographs of construction projects that Mr. Goldberg/Havasu Contractors had undertaken. 10. Neither Mr. Goldberg nor Havasu Contractors are licensed by the Registrar. 11. Mr. Goldberg’s/Havasu Contractors’ Facebook page does not include a disclaimer showing that they are unlicensed. 12. Mr. Goldberg, operating as Alan Goldberg Electric Contractors, holds California contractor’s license number 538830. 13. On August 22, 2018, ROC issued to Mr. Goldberg a Cease and Desist Order requiring Mr. Goldberg to cease and desist all unlicensed contracting and advertising. Through that Cease and Desist Order, ROC also imposed against Mr. Goldberg a $1000 civil penalty for advertising without a license in violation of Ariz. Rev. Stat. section 32-1165. CONCLUSIONS OF LAW 1. ROC bears the burden persuasion. Ariz. Rev. Stat. § 41- 1092.07(G)(3). 2. 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). 3. 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).

4. The preponderance of the evidence shows that Mr. Goldberg violated Ariz. Rev. Stat. section 32-1165 by advertising to perform construction services at a time when he was not licensed to do so. 5. Because Mr. Goldberg has violated section 32-1165, he is subject to a civil penalty of up to $2500. Ariz. Rev. Stat. § 32-1166. 6. Considering the facts and circumstances of this matter, the requested civil penalty of $1000 is appropriate. ORDER IT IS ORDERED that on or before fifteen days after the effective date of the final order in this matter Alan Goldberg must pay to the Registrar of Contractors $1000.00 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 22, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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