ALJDEC decisions subject to certification as final
2019A-05172-CPA-ROC · Registrar of Contractors · 2020-05-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Arizona Registrar of Contractors,
COMPLAINANT,
v.
Richard Gene Shepard,
DBA: All Covers & More LLC,
License No. 194664,
RESPONDENT.
No. 2019A-05172-CPA-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 8, 2020
APPEARANCES: Assistant Attorney General Sara Asta appeared on behalf on behalf of the Arizona Registrar of Contractors. Respondent Richard Gene Shepard appeared on behalf of himself.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. At all times relevant to this matter, Respondent Matthew Anthony Herrera and Herrera Refrigeration & Air Conditioning were not licensed contractors in the State of Arizona.
2. On or about February 6, 2020, the Arizona Registrar of Contractors (Registrar or ROC) issued a Cease & Desist Order (Order) wherein Mr. Shepard was ordered to cease and desist all unlicensed contracting and advertising in Arizona.
3. The February 6, 2020 Order was issued after the Registrar received a complaint from Jim Surmanek alleging unlicensed contracting on the part of Mr. Shepard.
4. On May 7, 2019, Mr. Shepard entered into a contract with Mr. Surmanek to install a pergola at Mr. Shepard’s home for $2,000.
5. Mr. Shepard provided Mr. Surmanek with a business card which stated “All Covers & More LLC” and included ROC # 228314.
6. Mr. Shepard provided Mr. Surmanek with an invoice for the project with ROC #273436.
7. The complaint was assigned to Registrar Investigator Chris Fultz.
8. Mr. Fultz investigated the complaint and concluded that Mr. Shepard engaged in unlicensed contracting.
9. On April 8, 2020, the Registrar issued a Notice of Hearing setting the above-captioned matter for hearing on May 8, 2020.
10. A hearing was held on May 8, 2020.
11. The Registrar presented the testimony of Investigator Chris Fultz.
Mr. Shepard testified on behalf of himself and presented the testimony of his wife Jennifer Shepard. .
12. Investigator Fultz explained that the ROC license number provided on the business card was fictitious. Investigator Fultz explained that the ROC license number provided on the invoice belonged to an entity which was previously licensed by the ROC and that the license expired in 2014. Mr. Shepard was a member of the entity that was previously licensed by the ROC.
13. Mr. Shepard that the business card contained a misprint of the license number. Mr. Shepard testified that he is not a licensed contractor.
14. Ms. Shepard asserted that she was the qualifying party for the entity whose license expired in 2014. Ms. Shepard testified that the license number provided on the business card was a temporary ROC number that was initially given to the prior entity.
15. Investigator Fultz explained that the ROC does not issue temporary license numbers to contractors.
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 Ariz. Rev. Stat. (“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 contracting without a
license. The Registrar can order a person who advertises 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. § 32-1165 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.
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. § 32-1166.01 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.” With respect to the appropriate amount of civil penalties for violations of A.R.S. § 32-1151, A.R.S. § 32-1166(A) required the Registrar to “adopt rules covering the assessment of a 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 Registrar established by a preponderance of the evidence that
Respondent advertised without a license in violation of A.R.S. § 32-1165.
The Registrar established by a preponderance of the evidence that
Respondent contracted without a license in violation of A.R.S. § 32-1151.
Because Respondent was previously a member of an entity that was
licensed by the Registrar, the assessed civil penalty of $1,500.00 for advertising without a license and $2,500 for contracting without a license is warranted. The Tribunal concludes that the total civil penalty of $4,000 for contracting and advertising without a is warranted in this case.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that the Registrar affirm the
finding that Respondent Matthew Anthony Herrera violated A.R.S. § 32-1165 and A.R.S. § 32-1151 and affirm the imposition of a civil penalty in the amount of $1,500.00 for advertising without a license, and the imposition of a civil penalty in the amount of $2,500 for contracting without a license. The $4,000.00 civil penalty shall be paid in certified funds to the Registrar on or before the effective date of the 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.
Done this day, May 28, 2020.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors