ALJDEC decisions subject to certification as final

2019A-04321-CPA-ROC · Registrar of Contractors · 2021-03-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

William Cuevas,

DBA: WILL'S DOWNTOWN FLOORING AND MORE,

RESPONDENT

No. 2019A-04321-CPA-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 18, 2021

APPEARANCES: William Cuevas on his own behalf; Sarah A. Asta, Esq. for the Registrar of Contractors

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On October 31, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Compliance Hearing setting the above-captioned matter for hearing on December 4, 2019 at the Office of Administrative Hearings in Phoenix, Arizona.

Through its Notice, ROC alleged that Respondent William Cuevas, d.b.a. Will’s Downtown Flooring and More, had engaged in an act of contracting that required a license, and that ROC had issued a Citation to Mr. Cuevas that included assessment of a civil penalty under Ariz. Rev. Stat. section 32-1166.01(C).

The matter was continued and the hearing was conducted on February 18, 2021.

Mr. Cuevas appeared and testified on his own behalf; ROC presented the testimony of Robert McQuien, one of its investigators.

Mr. McQuien was investigating a report of unlicensed contracting and entered Crozz Bonez, a business owned by Mr. Cuevas in which were displayed business cards for Crozz Bonez and for Will’s Downtown Flooring and More. The Will’s Downtown Flooring business card shows that Mr. Cuevas offered services including installation of floors.

The Will’s Downtown Flooring business card did not include a disclaimer showing that Mr. Cuevas and/or Will’s Downtown Flooring were not licensed by ROC.

ROC issued to Mr. Cuevas via certified mail a Cease and Desist Order and Civil Citation (the “Citation”) charging him with one count of advertising without a license in violation of Ariz. Rev. Stat. section 32-1165, and assessing against him a civil penalty of $1000.

Mr. Cuevas requested a hearing through which he informed ROC that he was taking the steps necessary to obtain a contractor’s license.

After ROC issued the Notice of Compliance Hearing, the parties agreed to continue the hearing to allow Mr. Cuevas to complete the steps required to obtain a license.

Further continuances or delays in rescheduling the matter were occasioned by the COVID-19 pandemic, the illness and death of one of Mr. Cuevas’s family members, and because Mr. Cuevas did not pass all the required tests the first time he took them.

Mr. Cuevas testified to the effect that due to COVID, licensing examinations had not been offered during part of the time the matter has been pending, and he noted the need to take health precautions during this time (remarking that he would not be able to earn a living if he was dead).

As of the hearing date, Mr. Cuevas had not passed the required examinations, but he was scheduled to take the CR-8 licensing examination on March 27, 2021.

ROC’s records show that in 2003 Mr. Cuevas was convicted of contracting without a license.

CONCLUSIONS OF LAW

ROC bears the burden persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(3).

A party raising an affirmative defense bears the burden of proving that defense. 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 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).

The preponderance of the evidence shows that Mr. Cuevas’s business card under the name Will’s Downtown Flooring and More is an advertisement to provide contracting services. Ariz. Rev. Stat. § 32-1101(A)(1).

Because Mr. Cuevas’s business card did not include the required disclaimer, he does not qualify for the “handyman” exception to ROC’s licensing requirements. See Ariz. Rev. Stat. § 32-1121(A)(14). Consequently, Mr. Cuevas has violated Ariz. Rev. Stat. section 32-1165 by advertising for construction services for which a contractor’s license is required.

Because Mr. Cuevas violated section 32-1165, ROC had authority to issue its Cease and Desist Order and to assess against Mr. Cuevas a civil penalty of between $200 and $2500. Ariz. Rev. Stat. §§ 32-1166 and 32-1166.01.

Because Mr. Cuevas was not licensed as of the hearing date, section 32-1165.07 that allows ROC to waive part of a civil penalty is not applicable. Nevertheless, ROC has discretion to reduce the proposed penalty as seen by the fact that section 32-1166.01 allows for a range of civil penalties from $200 to $2500.

In this case there are factors that militate in favor of reducing the penalty from $1000 to $500. In particular, Mr. Cuevas has made a good-faith effort to obtain his license and he planned to take the required examination after the hearing date. And although Mr. Cuevas’s matter has been pending for over a year, the COVID pandemic has caused scheduling and other problems for Mr. Cuevas. That Mr. Cuevas has been convicted of contracting without a license weighs against him.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors’ Cease and Desist Order be affirmed;

IT IS FURTHER RECOMMENDED that civil penalty against Mr. Cuevas be reduced to $500;

IT IS FURTHER RECOMMENDED that Mr. Cuevas be required to pay that civil penalty within 30 days of the date of the Registrar’s 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 is forty days after the date of that certification.

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-137160-45720000Done this day, March 8, 2021.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000