FINACT2019A-04458-CPA-ROC.pdf

2019A-04458-CPA-ROC · Registrar of Contractors · 2020-01-06

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Arizona Registrar of Contractors, Case No. 2019-04458 COMPLAINANT, Docket No. 2019A-04458-CPA-ROC v. Jeffrey A. Jordan FINAL ADMINISTRATIVE DECISION AND ORDER RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection of each finding of fact or conclusion of law. 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 accepts it. CONCLUSION AND ORDER Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case. Therefore, the $1,500.00 civil penalty must be paid no later than February 12, 2020. Payment may be hand-delivered to the Registrar’s physical address or mailed to: Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 FINAL NOTES On page 1, line 23 remove “A.R.S. § 32-1151, contracting without a license”. On page 4, line 9 replace “32-1166(A)” with “32-1166.01(B)”. On page 4, line 12 replace “1166(A)” with “1166.01(C)” Dated January 3, 2020. By: /s/ Joseph Citelli Joseph Citelli, Chief Counsel Chief of Legal Department and Recovery Fund Arizona Registrar of Contractors Copy mailed via USPS First Class mail January 3, 2020 to: Respondent Jeffrey A. Jordan 1104 N Alder Ct Gilbert, AZ 85233 Copy sent electronically this same date to: Registrar’s Counsel John Tellier, Assistant Attorney General Office of Administrative Hearings Antara Nath Rivera, Administrative Law Judge Case No. 2019-04458/tw

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 RECEIVED 12.17.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors, No. 2019A-04458-CPA-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE DECISION Jeffrey A. Jordan, RESPONDENT HEARING: November 27, 2019 APPEARANCES: John Tellier, Assistant Attorney General, appeared on behalf of Complainant. Jeffrey Jordan appeared on behalf of himself. ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ FINDINGS OF FACT 1. Prior to September 4, 2019, an advertisement was placed on the doors of residences located in Queen Creek. The advertisement included landscaping services that required a license from the Registrar of Contractors (Registrar). 2. On or about September 4, 2019, the advertisement was presented to the Registrar’s Investigator, Daniel Rhodes (Investigator Rhodes). During the course of his investigation, he observed that the advertisement was for Jordan’s Custom Landscaping & Design. The advertisement indicated that Jeff Jordan (Respondent) owned a small business that was in business for 25 years. The phone number on the advertisement was listed as 602-697-5362. Investigator Rhodes ran a query of Respondent on the Registrar’s website and learned that Respondent’s license was revoked. 3. On or about September 5, 2019, Investigator Rhodes issued a Cease & Desist Order and a civil citation for violating A.R.S. § 32-1151, contracting without a license, and A.R.S. § 32-1165, advertising without a license, based on Respondent’s purported advertisement. Respondent was assessed a civil penalty in the amount of $1,500.00 for the violation. 4. Based on a U.S. Postal Service website search, Investigator Rhodes learned that Respondent received the Cease & Desist Order that was mailed to 1104 North Alder Court, Gilbert, Arizona 85233.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 12.17.2019 ROC LEGAL

5. On or about October 7, 2019, Respondent requested a formal hearing. The Registrar referred the matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing. 6. A hearing was held on November 27, 2019. The Registrar submitted six exhibits and presented Investigator Rhodes’ testimony. HEARING EVIDENCE 7. Investigator Rhodes testified that a brochure advertisement was left on the doors of homes in the Queen Creek area. The advertisement indicated the business name, Jordan’s Custom Landscaping & Design, and listed Respondent’s name. The advertisement was for services that required a license through the Registrar. The services listed on the advertisement included installation of pavers, irrigation systems, barbeques, fire pits, and walls. 8. Upon further investigation, Investigator Rhodes learned that Respondent was issued a license from the Registrar which was revoked in 2003. The search also revealed that Respondent had three prior complainants from 2011, 2015, and 2017. Investigator Rhodes learned that the 2015 and 2017 complaints were submitted for prosecution. He did not know the outcome of the prosecution. 9. Investigator Rhodes observed that none of the advertisements included the disclaimer, “Not a Licensed Contractor.” 10. Investigator Rhodes issued a fine of $1,500.00. This was the standard fine issued for this type of violation. Moreover, Investigator Rhodes believed that Respondent should have known the penalties for advertising without a license because he was a licensed contractor in Arizona at one time. 11. At hearing, Respondent acknowledged that he did not have a valid contracting license from the Registrar. He admitted that he advertised without a license and that he was revoked. Respondent was under the impression that he had a handyman license and could advertise with that license. On the day of the hearing, Respondent found out that there was no such license as a handyman license. CONCLUSIONS OF LAW

RECEIVED 12.17.2019 ROC LEGAL

1. This matter lies within the Registrar’s jurisdiction.1 2. The Registrar bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.2 Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.3 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”4 A preponderance of the evidence is “[t]he 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.”5 4. A.R.S. § 32-1151 provides as follows: It is unlawful for any person, firm, partnership, corporation, association or other organization, or a combination of any of them, to engage in the business of, submit a bid or respond to a request for qualification or a request for proposals for construction services as, act or offer to act in the capacity of or purport to have the capacity of a contractor without having a contractor's license in good standing in the name of the person, firm, partnership, corporation, association or other organization as provided in this chapter, unless the person, firm, partnership, corporation, association or other organization is exempt as provided in this chapter. Evidence of securing a permit from a governmental agency or the employment of a person on a construction project shall be accepted in any court as prima facie evidence of existence of a contract. 5. A.R.S. § 32-1165 provides as follows: 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.

See A.R.S. § 32-1101 et seq. 2 See A.R.S. § 41-1092.07(G)(3); 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). See A.A.C. R2-19-119(B)(2). MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). BLACK’S LAW DICTIONARY 1220 (8th ed. 1999). RECEIVED 12.17.2019 ROC LEGAL

6. It was undisputed that Respondent advertised services that required a license and advertised for services that were over $1,000.00. The Registrar established that Respondent did not include the disclaimer, “Not a Licensed Contractor.” Furthermore, there was evidence that Respondent did not have a valid license through the Registrar and was revoked since 2003. 7. Respondent acknowledged that he did not have a valid license. Respondent was under the belief that he could advertise under a handyman license. Respondent did not present any evidence of such license. 8. A.R.S. § 32-1166(A) authorizes the Registrar to assess “a civil penalty in an amount of at least two hundred dollars for each violation but not more than two thousand five hundred dollars for the multiple violations committed on the same day.” A.R.S. § 32- 1166(A) also authorizes the Registrar to assess a civil penalty against a person who has been found to have advertised that he is able to perform a service for which a contractor’s license is required in violation of A.R.S. § 32-1165. 9. The Registrar found that Respondent violated Arizona contracting laws through his advertisement. Thus, Respondent was assessed civil penalty of $1,500.00. Based on the specific and unique circumstances in this matter, the Tribunal concludes that that Respondent violated Arizona contracting laws with the advertisements. Thus, a civil penalty of $1,500.00 is warranted in this case. RECOMMENDED ORDER Based upon the foregoing, it is recommended that the Registrar affirm the finding that Respondent violated A.R.S. § 32-1165 and assess a civil penalty of $1,500.00 to be paid in certified funds to the Registrar on or before the effective 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 will be five days from the date of that certification.

Done this day December 16, 2019.

/s/ Antara Nath Rivera Administrative Law Judge