ALJDEC decisions subject to certification as final

2018A-3662-ROC · Registrar of Contractors · 2019-03-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 12, 2019 APPEARANCES: No one appeared for Respondent; Thomas Raine, Esq. for the Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On November 7, 2018, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Citation and Civil Penalty setting the above-captioned matter for hearing on December 10, 2018 at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing shows that the hearing was to address the charges in the Citation issued to Respondent Christopher Valentino and the assessment of a civil penalty against Mr. Valentino. 3. The matter was continued and scheduled to convene at 9:00 a.m. March 12, 2019. 4. Mr. Valentino did not appear at 9:00 a.m. on March 12, 2019, and the matter was convened in his absence at about 9:15 a.m. 5. ROC presented the testimony of James Vildusea, one of its investigators. 6. On August 8, 2018, Mr. Vildusea observed a white van with “MARVEL PLUMBING & RENOVATION, LLC” printed on it. The van did not include either a ROC license number or a disclaimer showing that the LLC was not licensed by ROC. 7. Mr. Vildusea telephoned Marvel at the number listed on the side of the van, a person answered the phone as “Marvel” but told Mr. Vildusea to put him on the no-call list and hung up. Mr. Vildusea called Marvel a second time and identified himself and why he was calling, but the person who answered the phone was uncooperative. 8. The van at issue is registered to Mr. Valentino. 9. Neither Marvel Plumbing & Restoration LLC, nor Mr. Valentino are licensed by ROC. 10. On October 16, 2018, ROC issued to Mr. Valentino a Cease & Desist Order and Citation in which ROC alleges that on October 8, 2018, Mr. Valentino violated Ariz. Rev. Stat. section 32-1165 and in which it assessed a civil penalty of $1000.00 against Mr. Valentino. 11. In 2016 in different case, ROC had previously issued to Mr. Valentino a warning letter for advertising without a license. While that matter was pending, ROC personnel discussed with Mr. Valentino the law related to unlicensed advertising. 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. Because Mr. Valentino’s van did not include the required disclaimer, he does not qualify for the “handyman’s” exception to ROC’s licensing requirements. See Ariz. Rev. Stat. § 32- 1121(A)(14). 9. The preponderance of the evidence shows that Mr. Valentino has violated Ariz. Rev. Stat. section 32-1165 by advertising for construction services for which a contractor’s license is required. See Ariz. Rev. Stat. § 32-1101(A)(3). 10. Because Mr. Valentino has violated Ariz. Rev. Stat. section 32- 1165, ROC has authority to issue to Mr. Valentino a civil penalty of up to $2500. 11. Considering, the facts and circumstances of this matter, the assessed civil penalty of $1000 is appropriate. ORDER IT IS ORDERED that on or before thirty days after the effective date of the final order in this matter Christopher A. Valentino 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, March 26, 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