FINACT2019A-01257-CPA-ROC.pdf
2019A-01257-ROC · Registrar of Contractors · 2019-06-13
REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA
IN THE MATTER OF THE CIVIL PENALTY Case No. 2019-01257 CITATION ISSUED TO: Docket No. 2019A-01257-CPA-ROC Michael Lynn Wallace, 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 and becomes effective July 21, 2019.
IT IS ORDERED that Respondent pay a civil penalty in the amount of $1,000.00, payable to the
Registrar on or before 30 days from the effective date of this Order.
Payment may be hand-delivered to the Registrar’s physical address or 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 Signed June 11, 2019.
REGISTRAR OF CONTRACTORS
Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail June 11, 2019 to:
Respondent Michael Lynn Wallace 14207 W Clarendon Ave Goodyear, AZ 85395 Complainant Arizona Registrar of Contractors 1700 W Washington St Ste 105 Phoenix, AZ 85007
Respondent at email address on record with the Registrar
AND copy electronically mailed this same date to:
Registrar’s Counsel Thomas Raine, Esq., Assistant Attorney General Office of Administrative Hearings Randolph D. Wolfson, Administrative Law Judge Case No. 2019-01257 / SA
REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 5.29.2019 ROC LEGAL
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Arizona Registrar of Contractors, No. 2019A-01257-ROC
COMPLAINANT ADMINISTRATIVE LAW JUDGE DECISION v. Michael Lynn Wallace, RESPONDENT
HEARING: May 29, 2019. APPEARANCES: Mike Nation, ROC Investigator; Thomas Raine, Esq., Asst. Atty. General representing the Registrar. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________ FINDINGS OF FACT 1. This matter arises out of the appeal of Respondent Michael Lynn Wallace [hereinafter, “Wallace”] of a Cease and Desist Order and Citation served upon Wallace for Advertising without a license in violation of A.R.S. §32-1165 [hereinafter, the “Citation”]1 On the face of the Citation it is stated that a Civil Penalty of $1,000.00 was assessed.2 2. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for a fair evidentiary hearing.3 3. The Registrar issued a Notice of Hearing,4 setting a hearing at 9:00 a.m. on May 29, 2019. The Registrar mailed copies of the Notice of Hearing to Respondent at the address Wallace’s address of record with the Registrar, the address used in
ROC Exhibit 1. Ibid. Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 5.29.2019 ROC LEGAL
Wallace’s website advertisements and the address given as the return address on Wallace’s hearing request. Inasmuch as Wallace, according to the testimony of Mike Nation, ROC Investigator and charging officer in this case, spoke to Mr. Nation about
the Citation and the requirements of Arizona statutes for unlicensed contractors, it is a
priori evident that Wallace received a copy of Citation and a copy of the Notice of
Hearing
4. . The Notice of Hearing informed the parties that “[f]ailure to attend the
scheduled hearing is likely to result in an adverse ruling against you.”
5. A hearing was held on May 29, 2019.
6. Respondent did not request to appear telephonically and did not request
that the hearing be continued. Although the start of the hearing was delayed 20
minutes, Respondent did not appear through an authorized member, employee, or
attorney. Consequently, Respondent did not present any evidence to defend against
the Citation.
7. A review of the Agency Record and testimony from ROC Investigator
Nation, indicates that Wallace is not now nor has he ever been an Arizona licensed
Contractor. 8. At hearing, Mike Nation, ROC Investigator testified consistent with his narrative report in this case that: This investigation was initiated by Investigator Nation on 03/13/2019, while conducting site inspections to ensure compliance with contracting laws. During a prior investigation, I had previously determined the identity of Michael Lynn WALLACE by requesting phone subscriber information from a criminal justice agency on 01/26/2018, under ROC Complaint No. 2018-263. ACJIS information revealed the Registered Owner of the Gray 2005 Toyota Tacoma Truck, [with AZ license plate BCG0821] to be Michael Lynn WALLACE.
Investigation: On Wednesday, 03/13/2019, at approx. 12:57 PM, while on patrol at/near 8340 W Peoria Avenue (on Peoria Av & Grand Av), Peoria, AZ 85345, I observed a gray Toyota Tacoma Truck, with an extended cab [AZ License Per State’s Exhibit 1,the Citation was mailed to Mr. Wallace at - Michael Lynn Wallace, 14207 W Clarendon Ave., Goodyear, AZ 85395. The Agency record indicates that Notice of Hearing was sent to the same address on April 11, 2019. RECEIVED 5.29.2019 ROC LEGAL
Plate BCG0821] displaying signage/markings for Handyman Services By Michael, at 623-313-2166. This signage also had “When you need an extra hand call me.” I noticed a ladder in the bed of the truck. The signage/markings displayed on the rear tail gate of the truck and the one displayed on the passenger side of truck, {at the extended cab} failed to include the phrase, “Not a Licensed Contractor.” I took five (x5) digital photographs of the vehicle with the signage displayed and included the Photographs as evidence to document the advertising violation.
On Wednesday, 03/13/2019, I also conducted a search of internet/website advertisements to ensure compliance with contracting law.5 My search revealed two listings for Handyman Services by Michael, at 623-313-2166. I found a Manta [website] Listing https://www.manta.com/c/ mh1g7c8/ handyman-services-by-michael-w] dated 03/13/2019, which advertised, “HANDYMAN SERVICES BY MICHAEL W.” GOODYEAR AZ, 85395 - [On] Manta.com. the listing stated, “This page is administered by Michael Wallace. Contact HANDYMAN SERVICES BY MICHAEL W. Phone: (623) 313-2166.” The advertisement on the Manta listing failed to include the phrase; “Not a Licensed Contractor.” [emphasis in original].6 I also found a Nextdoor Listing [https://nextdoor.com/pages/michaels- handyman-services-goodyear-az/] dated 03/13/2019, which advertised, Michael's Handyman Services is on Nextdoor, the private social network for neighborhoods. Michael's Handyman Services, Goodyear, AZ, with a phone number of 623-313-2166 and an email address of [email redacted]. The advertisement on the Nextdoor listing failed to include the phrase; “Not a Licensed Contractor.” I recognized the company name on the advertisement, Handyman Services By Michael, at 623-313-2166, from a previous advertisement violation: Under ROC under ROC 2018-263, in which a prior Warning Letter,7 was issued to Michael L WALLACE of Handyman Services by Michael, for Advertising without a License, dated 01/29/2018. This violation was for a Facebook Marketplace listing with a Business Card posting for HANDYMAN SERVICES BY MICHAEL at 623-313-2166, with Michael Lynn Wallace. He Claimed to be a licensed fulltime legitimate handyman displaying LIC # 17-00007567, on a business card and
See, State’s Exhibit 3. The ALJ’s review of the nextdoor.com and manta.com websites hereinabove referred to reveals that as of the date of hearing, May 29, 2019, Wallace still persists posting his advertisement of services without the required disclaimer language of “Not a Licensed Contractor.” In other words, Wallace is still not in compliance with the law and continues to violate A.R.S. §32-1165 with apparent impunity. 7 ROC Exhibit 7. RECEIVED 5.29.2019 ROC LEGAL
advertised handyman type services without disclosing, Not a Licensed Contractor. On 01/30/2018, at approx. 1:13 PM, I spoke with Michael Lynn WALLACE by phone about the violation. During my phone conversation, Michael WALLACE confirmed his identity and informed he had received my Warning Letter and was not a licensed contractor. WALLACE advised he was not aware of the advertising law, but would correct his advertisement by adding the phrase, Not a Licensed Contractor. I explained licensing laws related to AWOL and reviewed the Handyman exemption with WALLACE and advised future violations could result in civil fines and/or Criminal prosecution as Advertising without a License was a criminal offense. Michael WALLACE stated he understood.
A query of AZ ROC license records revealed no active, inactive or pending license status to Michael WALLACE, (aka Michael Lynn Wallace), DBA Handyman Services By Michael. A query of AZ ROC enforcement records revealed one (X1) previous unlicensed Complaint: On 01-19-2018, under ROC 2018-263, for Advertising without a License, in which a Warning Letter was issued on 01-29-2018, for Advertising without a License. A query of the Arizona Corporation Commission revealed no business listings for Michael WALLACE, (aka Michael Lynn Wallace), DBA Handyman Services By Michael. Upon investigation, I determined Michael WALLACE (aka Michael Lynn Wallace), DBA Handyman Services By Michael, to be an unlicensed entity/person, and failed to disclose on the vehicle signage advertisement and listings on Manta and Nextdoor, that he was, “Not a Licensed Contractor.” This Investigation substantiates a violation of 32-1165, advertising without a License. On Wednesday, 03/13/2019 at approx. 12:57 PM, while at/near 8340 W. Peoria Drive, Peoria, AZ 85345, Michael WALLACE (aka Michael Lynn Wallace), an unlicensed entity/person, DBA Handyman Services By Michael, advertised his business via signage displayed on his vehicle and listings on Manta and Nextdoor with a phone number of 623-313-2166. Michael WALLACE failed to disclose, “Not a Licensed Contractor.” This is Michael WALLACE’S 2nd violation for Advertising without a License. [emphasis in the original]. …
… RECEIVED 5.29.2019 ROC LEGAL
CONCLUSIONS OF LAW
1. The copies of the Notice of Hearing that the Registrar mailed to Respondent
at its address of record and at the address on its written answer were reasonable and
Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04
and 41-1092.05(D).
2. The Appellant Wallace bears the burden of proof to establish, by a
preponderance of the evidence, that the Citation was incorrectly issued or that the civil
penalty assessed is contrary to law. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-
119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369,
372, 249 P.2d 837 (1952). “A preponderance of the evidence is such proof as
convinces the trier of fact that the contention is more probably true than not.” Morris K.
Udall, Arizona Law of Evidence § 5 (1960).
3. Inasmuch as Wallace failed to appear at hearing and failed to offer any
evidence or argument in this case, Wallace failed to meet his burden of proof. 4. The undisputed evidence demonstrates by a preponderance, that at approximately noon on March 13, 2019, at or near 8340 West Peoria Drive in Peoria, Arizona, Wallace was an unlicensed contractor who advertised his business on his vehicle without the advertising stating the required “Not a Licensed Contractor” warning as required by A.R.S. §32-1165. Moreover, the undisputed evidence demonstrates by a preponderance, that on March 13, 2019, Wallace was an unlicensed contractor who advertised his business on two internet websites [namely, Manta.com and Nextdoor.com] without the advertising stating the required “Not a Licensed Contractor” warning as required by A.R.S. §32-1165. 5. Wallace has, by a preponderance, violated A.R.S. §32-1165. Based upon the evidence presented, The Citation ought to have been and was properly issued. 6. Inasmuch as it is documented by the Registrar that the Citation in this case evidences a second violation by Wallace of A.R.S. §32-1165, the assessed civil penalty of $1,000.00 is reasonable and just.
RECEIVED 5.29.2019 ROC LEGAL
RECOMMENDED ORDER
Based upon the foregoing,
IT IS RECOMMENDED that the Cease and Desist Order and Citation are
supported by the evidence and should be affirmed.
FURTHER IT IS RECOMMENDED that the assessed civil penalty of $1,000.00
is a reasonable and just penalty in light of Respondent’s prior history and should be
sustained.
FURTHER IT IS RECOMMENDED that the appeal of Respondent Michael Lynn Wallace be dismissed. Done this day, May 29, 2019.
/s/Randolph D. Wolfson Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director Registrar of Contractors