ALJDEC decisions subject to certification as final

2020A-01803-CPA-ROC · Registrar of Contractors · 2021-06-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT,

v.

Saul Hignio Holguin,

dba SH Concrete Work LLC,

RESPONDENT.

Consolidated Docket Nos. 2020A-01803-CPA-ROC and 2020A-01900-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 14, 2021 at 9:00 AM.

APPEARANCES: Assistant Attorney General Sara Asta, Esq. appeared on behalf of the Arizona Registrar of Contractors (“Registrar”) with Sheldon White and Alex Figueroa as witnesses. No appearance(s) by or on behalf of Saul Holguin (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure: Case No. 2020-01803

On April 09, 2020, Registrar investigator Sheldon White (“Investigator White”) observed Respondent’s unlicensed contracting advertisements which failed disclose that Respondent was “not a licensed contractor.” During a subsequent investigation, Investigator White discovered that Respondent posted no less than seven (7) online advertisements on social media websites which also failed to disclose that he was not a licensed contractor.

All of the advertisements listed the following contact information for Respondent:

SH Concrete Work (Handyman)

Saul Holguin, Owner

6516 W Devonshire Ave. Phoenix, AZ 85033

(602) 229-5161

LLC and insured

Free estimates

On April 09, 2020, Investigator White spoke with Respondent on the telephone. During the call Respondent indicated that he had been issued a license by the Registrar, but could not provide the number to Investigator White.

On April 10, 2020, Investigator White obtained Respondent’s entity information from the Arizona Corporate Commission (“ACC”). ACC records reflected that Respondent’s business was approved for incorporation on December 17, 2018, to Saul Holguin, Statutory Agent, at 6515 W Devonshire Ave. Phoenix, AZ 85033.

Investigator White also ran a query of the Registrar’s license records and could not locate an active, inactive, or pending license for Respondent. However, Investigator White was able to locate three (3) prior warnings issued by the Registrar to Respondent for contracting without a license for case numbers 2018-2885, 2018-115, and 2016-2592.

On April 14, 2020, the Registrar issued a Cease & Desist Order to Respondent in Case No. 2020-01803 for advertising without a license in violation of Arizona Revised Statutes (“Ariz. Rev. Stat.) § 32-1165. Respondent was assessed a $1,500.00 civil penalty.

On June 10, 2020, the Registrar received an appeal request from Respondent.

Background and Procedure: Case No. 2020-01900

On April 15, 2020, the Registrar received Complaint No. 2020-01900 from a citizen that alleged Respondent entered into a $1,850.00 residential concrete contract on February 27, 2020, in excess of the Handyman Exemption pursuant to Ariz. Rev. Stat. § 32-1121(14). Attached to the complaint were copies of Respondent’s business card, handwritten contract, proof of deposit $925.00, communications between the complainant and Respondent, and Respondent’s online advertisements. Per the complaint, Respondent never started the job after receiving the deposit.

On April 15, 2020, Registrar investigator Alex Figueroa (“Investigator Figueroa”) ran a query of the Registrar’s license records and could not locate an active, inactive, or pending license for Respondent. However, Investigator Figueroa was able to locate four (4) prior warnings issued by the Registrar to Respondent for contracting without a license for case numbers U09-0985, 2016-2592, 2018-115, 2018-2885, and 2020-01803.

On April 28, 2020, the complainant in Complaint No. 2020-01900 positively identified Respondent from a photographic lineup to Investigator Figueroa.

On April 30, 2020, during a telephone call with Investigator Figueroa, Respondent agreed to refund the money in Complaint No. 2020-01900, cease contracting without a license, and get licensed by the Registrar.

On May 20, 2020, Respondent returned $905.00 to the complainant.

On June 10, 2020, the Registrar issued a Cease & Desist Order to Respondent in Case No. 2020-01900 for contracting without a license in violation of Ariz. Rev. Stat. § 32-1151. Respondent was assessed a $2,500.00 civil penalty.

On June 10, 2020, the Registrar received an appeal request from Respondent whereby Respondent also requested an Informal Settlement Conference and an opportunity to become a licensed contractor. Respondent’s request was forwarded to the Registrar’s legal department for consolidation.

On June 17, 2020, Registrar referred the matter to the Office of Administrative Hearings (“OAH”) for an independent evidentiary hearing on August 07, 2020. The issues for hearing were to determine whether grounds exist for the Registrar to assess Civil Penalties against Respondent under Ariz. Rev. Stat. § 32-1166.01(C) based on an alleged violations of Ariz. Rev. Stat. §§ 32-1151 and 32-1165, as established by the evidence.

Hearing Evidence

The Registrar called Investigators White and Figueroa as witnesses and submitted Exhibits 1-22 into the record. The Registrar’s electronic hearing file was also admitted into the record as its own exhibit. The substantive evidence of record is as follows:

Respondent is not a licensed contractor in the State of Arizona and has never possessed a license issued by the Registrar.

On July 01, 2020, the Registrar issued a Notice of Consolidated Telephonic Informal Settlement Conference to Respondent.

Although Respondent was offered the chance to obtain his contractor’s license in exchange for the Registrar reducing the underlying civil penalties, as of the date of the hearing Respondent had not applied for a contractor’s license or paid either civil penalty at issue.

In closing, the Registrar argued that Respondent knew or should have known about the Registrar’s unlicensed contractor disclaimer requirements and Handyman Exception provisions because he had been issued prior written warnings. The Registrar opined, pursuant to the Mailbox Rule, that Respondent indeed received the disciplinary correspondence because it was not returned as undeliverable. The Registrar concluded by noting that no contravening or mitigating evidence existed in the record, and as such, requested that both civil penalties levied against Respondent be affirmed by the Tribunal.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction and was properly brought before OAH for adjudication.

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

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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 as 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.”

In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.” “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”

Ariz. Rev. Stat. § 32-1121(A)(14) sets forth the Handyman Exemption” to licensure requirements and provides in relevant part as follows:

Any person other than a licensed contractor engaging in any work or operation on one undertaking or project by one or more contracts, for which the aggregate contract price, including labor, materials and all other items . . . is less than one thousand dollars. The work or operations that are exempt under this paragraph shall be of a casual or minor nature.

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

Ariz. Rev. Stat. § 32-1151 provides, in pertinent part, that “It is unlawful for any person to engage in the business of, or purport to have the capacity of a contractor, without having a contractor's license in good standing.”

Ariz. Rev. Stat. § 32-1165 provides, in pertinent part, that “[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 ... unless the person first obtains a license.”

Ariz. Rev. Stat. § 32-1166.01(C) authorizes the Registrar to “Impose a civil penalty not to exceed $2,500 for each violation except that the civil penalty may not exceed $2,500 for all violations committed on the same day.”

Here, the preponderance of the evidence establishes that Respondent violated Ariz. Rev. Stat. § 32-1151 on or about February 27, 2020, and Respondent violated Ariz. Rev. Stat. § 32-1165 on or about April 09, 2020. There is no evidence in the record that justifies or otherwise excuses Respondent’s conduct. On the contrary, Respondent’s intentional misrepresentation to Investigator White is a factor in aggravation.

As such, the undersigned concludes that ground exist for the Registrar to assess Civil Penalties against Respondent for his violation of Ariz. Rev. Stat. §§ 32-1151 and 32-1165.

RECOMMENDED ORDER

Based upon the foregoing,

it is recommended that the Registrar affirm the Cease & Desist Order issued on April 14, 2020, and affirm the related $1,500.00 Civil Penalty assessed against Respondent in Case No. 2020-01803.

it is FURTHER recommended that the Registrar affirm the Cease & Desist Order issued on June 10, 2020, and affirm the related $2,500.00 Civil Penalty assessed against Respondent in Case No. 2020-01900.

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 thirty (30) days from the date of certification.

Done this day, June 29, 2021.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors