ALJDEC decisions subject to certification as final

2019A-04694-CPA-ROC · Registrar of Contractors · 2021-03-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors,

COMPLAINANT,

Jose Antonio Canales,

JCRP Handyman Services, LLC,

RESPONDENT.

No. 2019A-04694-CPA-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 25, 2021

APPEARANCES: Assistant Attorney General Sarah Asta represented Complainant Arizona Registrar of Contractors. Investigator Mike Nation appeared as a witness for the Arizona Registrar of Contractors. Respondent Jose Canales appeared on his own behalf. Kyrene Garcia, Jose Canales’ wife, was also present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

1. At all times relevant to this matter, Respondent Jose Antonio Canales who was conducting business as JCRP Handyman Services, LLC (“Respondent”) was not a licensed contractor in the State of Arizona.

2. On or about September 17, 2019, the Arizona Registrar of Contractors (“Registrar”) received a Complaint against Respondent filed by Raymond Garcia alleging that Respondent abandoned a residential remodel project for which Mr. Garcia paid Respondent $8,000.00. The Complaint indicated that Respondent began work on the project on April 15, 2019, and that the jobsite address was 2023 N. 36th Drive in Phoenix, Arizona.

3. The Registrar assigned an investigator to investigate the Complaint. Registrar Investigator Mike Nation testified that a Registrar database search was conducted to determine Respondent’s license status. Upon review, it was discovered that Respondent had never been licensed by the Registrar.

4. Mr. Garcia provided the Registrar with copies of canceled checks and bank statements evidencing proof of payments to Respondent totaling $7,500.00 between April 2019 and July 2019. The notations on the checks reference the jobsite address.

5. Arizona Corporation Commission records were reviewed and revealed that JCRP Handyman Services, LLC was incorporated on October 29, 2015, and that Joes Canales is the Statutory Agent and Manager, and the business address is 4202 W. Culver Street, Phoenix, Arizona, which is also Mr. Canales’ address.

6. During its investigation, the Registrar also discovered an advertisement on Manta.com, a free advertising website, for JCRP Handyman Services, LLC with the address of 4202 West Culver Street, Phoenix, Arizona.

7. On or about January 24, 2020, the Registrar issued a Cease & Desist Order (“Order”) whereby Respondent was ordered to immediately cease and desist all unlicensed contracting and advertising in Arizona. Respondent was charged with violating A.R.S. § 32-1151, Contracting Without a License, and A.R.S. § 32-1165, Advertising Without a License. Respondent was assessed a civil penalty in the amount of $1,500.00 for Contracting Without a License, and a $1,000.00 civil penalty for Advertising Without a License.

8. Upon receipt of the Order, Respondent was provided three options: i) pay the civil penalty; ii) obtain a contractor’s license; or iii) request a hearing to dispute the Order.

9. On February 25, 2020, Respondent requested a hearing and an informal settlement conference.

10. On March 3, 2020, the Registrar issued a Notice of Informal Settlement Conference advising that pursuant to Respondent’s request, the Informal Settlement Conference would take place on March 24, 2020, at 1:00 p.m.

11. On March 12, 2020, the Registrar issued a Notice of Unlicensed Hearing setting the above-captioned matter for hearing on April 13, 2020, at 9:00 a.m.

12. The hearing was continued multiple times in order to provide Respondent the opportunity to obtain a license through the Registrar. Respondent was unsuccessful in obtaining a contractor’s license.

13. A hearing was held on March 25, 2021, at 9:00 a.m.

14. The Registrar presented the testimony of Investigator Nation who testified consistently with the above delineated findings.

15. Mr. Canales testified that his uncle, Raymond Garcia, contacted him for help on the remodel project, and that he believed he was “doing a favor for family.” Mr. Canales testified that he did not abandon the job, but rather, Mr. Garcia changed the code on the lockbox, and consequently, Mr. Canales could not access the property. Mr. Canales admitted that he was contracting without a license and admitted he is “guilty.” Mr. Canales further testified that he has attempted to obtain his contractor’s license, however, has failed the test twice because he is “not good with computers.” Mr. Canales testified that he wants to obtain a license, however, the last time he was scheduled to take the test, he had COVID-19, and scheduling testing has been difficult due to the pandemic. Mr. Canales testified that he is scheduled to take the test again on April 24, 2021. Mr. Canales denied that he advertised his business, and testified that he has not “claimed” the business on the website. Mr. Canales asserted that his business “pops up on Google.” Mr. Canales admitted that he did not request that Manta.com remove the advertisement, even after receiving the Registrar’s Order.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The Registrar bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. 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).

Arizona contracting law prohibits a person from acting as a contractor without a license. 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.

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.

A.R.S. § 32-1165 provides as follows:

Except as authorized by section 32-1121, subsection A, it 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.

A.R.S. § 32-1166.01(B)(4) authorizes the Registrar to assess a civil penalty in an amount of at least $200.00 for each violation but not more than $2,500.00 for the multiple violations committed on the same day. With respect to the appropriate amount of civil penalties for violations of A.R.S. § 32-1151, A.R.S. § 32-1166.01(G) empowers the Registrar to “adopt rules relating to the civil penalty that give due consideration to the gravity of the violation and any history of previous violations.” Pursuant to this directive, the Registrar adopted A.A.C. R4-9-131.

The evidence established that Respondent violated both A.R.S. § 32-1151 and A.R.S. § 32-1165. Based on the circumstances presented by this matter, the Tribunal concludes that a civil penalty of $1,500.00 for Respondent’s violation of A.R.S. § 32-1151, and a civil penalty of $1,000.00 for Respondent’s violation of A.R.S. § 32-1165, for a total civil penalty in the amount of $2,500.00, 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. § 32-1151 and A.R.S. § 32-1165 and assess a total civil penalty of $2,500.00 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 shall be forty (40) days from the date of certification.

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-137160-45720000Done this day, March 31, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000