ALJDEC decisions subject to certification as final

2018A-5-CPA-ROC · Registrar of Contractors · 2018-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors,

IN THE MATTER OF THE

CIVIL PENALTY CITATION ISSUED TO:

Richard Earl Newport,

No. 2018A-5-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 27, 2018.

APPEARANCES: Respondent Richard Earl Newport appeared on behalf of himself. Assistant Attorney General Thomas Raine appeared on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________

FINDINGS OF FACT

1. Rick Kustom’s (“RK”) is not a licensed contractor in Arizona.

2. Richard Earl Newport (“Newport”) is not a licensed contractor in Arizona.

3. On or about October 22, 2017, RK presented a proposal to a homeowner to remodel her home. The proposal states that RK will remove and rehang a mirror and television. The proposal also states that RK will remove an old tub, build concrete stoop for a shower floor, install all new tile and build concrete.

4. RK offered to perform the work for a total of $2,000.

5. The proposal did not state that RK or Newport were unlicensed.

6. On or about December 11, 2017, the Arizona Registrar of Contractors (“Registrar”) received a complaint from a homeowner alleging that poor workmanship and abandonment on the part of RK.

7. The Registrar assigned Investigator Daniel Rhodes to investigate the complaint.

8. Investigator Rhodes discovered that RK and Newport were not licensed contractors in Arizona.

9. Investigator Rhodes also found several advertisements for RK on the internet. None of the websites stated that RK or Newport was unlicensed.

10. On or about January 2, 2018, the Registrar issued to Newport a Cease & Desist Order in which it alleged that he violated Ariz. Admin. Code section 32-1151 and in which it assessed a civil penalty of $1500.00. The Registrar also alleged that Newport violated Ariz. Admin. Code 32-1156.

11. Newport filed a timely appeal to the Cease & Desist Order.

12. A hearing was held on March 27, 2018.

13. Newport presented his own testimony. The Registrar presented the testimony of Investigator Daniel Rhodes (“Investigator Rhodes”), and submitted exhibits 1 through 4.

14. Investigator Rhodes testified that the work that the advertisement and proposal solicited would have required a license if the aggregate price of the work was $1,000.00 or more. Investigator Rhodes testified that for the advertisement or proposal to be protected by the handyman’s exemption, it needed to include the disclaimer, “Not a Licensed Contractor.”

15. Newport testified that after the work was completed, the homeowner asked for all of the work to be put on one invoice. Newport contended that he never entered into a written contract with the homeowner.

16. Newport testified that the advertisements that Investigator Rhodes found were from 2007. Newport testified that he does not have a business and that he performs handyman work. Newport stated that he did not remodel the homeowner’s bathroom for $1,500. Newport testified that he had day laborers do plaster and tile work on the home. Newport contended that he did not offer a bid on the job.

CONCLUSIONS OF LAW

The Registrar bears the burden persuasion. Ariz. Rev. Stat. section 41-1092.07(G)(3).

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 section R2-19-119(B).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code section R2-19-119(A).

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).

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.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. section 1-211(B).

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).

Ariz. Rev. Stat section 32-1165 provides that:

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.

9. Arizona contracting law prohibits a person from acting as a contractor without a license. The law allows an exemption from licensure, with certain limitations, for a “handyman.” An unlicensed handyman can perform construction work, with certain exclusions, such as that the work does not require a permit, as long as the aggregate price for the job, including labor and materials, does not exceed $1,000.00. The Registrar can order a person who performs contracting 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.

10. The preponderance of the evidence shows that Newport acted as an unlicensed contractor, which is a violation of Ariz. Rev. Stat. section 32-1151.

11. The preponderance of the evidence shows that Newport advertised construction services without a license, which is a violation of Ariz. Rev. Stat. section 32-1165.

ORDER

Based on the foregoing, it is recommended that the Registrar affirm the finding that Respondent Richard Earl Newport violated Ariz. Rev. Stat. section 32-1151 and section 32-1165, and impose a Civil Penalty in the amount of $1,500.00 for the unlicensed contracting violation. The $1,500.00 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 will be five days from the date of that certification.

Done this day, April 16, 2018

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors