ALJDEC decisions subject to certification as final
2019A-03814-CPA-ROC · Registrar of Contractors · 2019-11-29
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Arizona Registrar of Contractors,
COMPLAINANT
v.
Robert Carter Simsich,
DBA: Carter & Company,
RESPONDENT
No. 2019A-03814-CPA-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: November 18, 2019
APPEARANCES: No one appeared for Respondent; Seth T. Hargraves, Esq. for Complainant
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On October 31, 2019, the Registrar of Contractors (“ROC”) issued an Amended Notice of Haring on Appealable Agency Action setting the above-captioned matter for hearing at 9:00 a.m. on November 18, 2019, at the Office of Administrative Hearings in Phoenix, Arizona.
ROC alleged that Respondent Robert Carter Simsich d.b.a. Carter & Company engaged in acts for which a contracting license is required, it issued a Cease and Desist Order, and assessed against Mr. Simsich civil penalties of $1500 for contracting without a license and $1000 for advertising without a license.
Mr. Simsich requested a hearing. But no representative for Respondent appeared at the scheduled hearing time and the matter was convened in his absence at about 9:17 a.m.
ROC presented the testimony of Robert Mcquien, its investigator in this matter. Mr. Mcquien verified that Respondent is not a licensed contractor and provided credible testimony showing that Respondent was contracting and advertising without a license.
In July 2019, ROC received a complaint from Bill and Marlisa Feagin alleging that Respondent had engaged in unlicensed contracting.
Included with the Feagins’ complaint was a contract calling for Respondent to install a pool for $10,600 and two liens that Respondent filed against the complainant’s property (one for the work at issue, the second for other work). The contract is on a Carter and Company Bid Form that the parties executed on October 3, 2018. The form shows that Mr. Carter was agreeing to furnish labor and material to install a swimming pool as shown in drawings that are part of the contract.
The contract shows that the check should be made payable to Carter Simsich and ROC also received from the Feagins a cancelled check made out to Carter Simsich in the amount of $10,600.
The Feagins also provided ROC with a business card they received from Respondent showing that he is a homebuilder.
During his investigation, Mr. Mcquien visited the jobsite, met with Mr. and Ms. Feagin, and observed the work at issue.
On September 3, 2019, ROC issued to Mr. Simsich the Cease and Desist Order and assessed against him the civil penalties of $1500 and $1000.
Respondent filed a request for a hearing, in which he acknowledged assisting the Feagins with a pool-building project, but he denied that he had been engaging in contracting while doing so.
CONCLUSIONS OF LAW
ROC bears the burden persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(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).
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. § 1-211(B)
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.
“[I]t is a class 1 misdemeanor for any person to advertise that the person is able to perform any service or contract for compensation subject to regulation by the registrar under the terms of this chapter unless the person first obtains a license under the terms of this chapter.” Ariz. Rev. Stat. § 32-1165.
The preponderance of the evidence shows that Mr. Simsich is not licensed and that he offered, and actually undertook, to build a pool for the Feagins. Consequently, Mr. Simsich acted as a contractor without being licensed to do so in violation of Ariz. Rev. Stat. section 32-1151.
The preponderance of the evidence shows that Mr. Simsich was advertising to perform construction services without having a contractor’s license in violation of Ariz. Rev. Stat. section 32-1165.
Mr. Simsich is subject to a civil penalty of between $200 and $2500 for each of his statutory violations. Ariz. Rev. Stat. § 32-1166.01.
Considering, the facts and circumstances of this matter, including that ROC has argued that any of the factors found in Ariz. Admin. Code section R4-1-131 are applicable, the assessed penalties of $1500 for contracting without a license and $1000 for advertising without a license are appropriate.
RECOMMENDED ORDER
IT IS RECOMMENDED that the Registrar affirm its findings that Robert Carter Simsich d.b.a. Carter & Company has violated Ariz. Rev. Stat. sections 32-1151 and 32-1165;
IT IS FURTHER RECOMMENDED that the Registrar affirm its decision to assess against Robert Carter Simsich civil penalties of $1500 for contracting without a license and $1000 for advertising without a license.
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, November 29, 2019.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors