ALJDEC decisions subject to certification as final

2020A-02243-CPA-ROC · Registrar of Contractors · 2021-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT,

v.

Jefferson B. Roosen,

RESPONDENT.

No. 2020A-02243-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 21, 2020

APPEARANCES: Assistant Attorney General Sara A. Asta appeared on behalf of the Arizona Registrar of Contractors (Registrar). Respondent Jefferson B. Roosen appeared on behalf of himself.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

Respondent Jefferson B. Roosen is not a licensed contractor in the State of Arizona.

Nathan Parra Contracting (NPC) holds license number 265349 issued by the Registrar.

Nathan Parra is the qualifying party for NPC.

On April 29, 2019, Mr. Roosen submitted a distributor application to CFA Cabinetry for the purchase of cabinetry. See Respondent’s Exhibit 8. Mr. Roosen listed “Respace Unlimited/RG NPC LLC” as the company applicant. Mr. Roosen listed himself as the Managing Partner on the Unconditional Continuing Personal Guaranty. See id.

On May 1, 2019, Anmarie Boogie of CFA Cabinetry asked Mr. Roosen for a copy of the general contractor’s license. See Respondent’s Exhibit 8. Mr. Roosen responded to Ms. Boogie the same day and provided the following information, “Contractors license Nathan Parra Contracting Llc Roc#265349”. Ms. Boogie thanked Mr. Roosen for the information and asked Mr. Roosen if he had a contact number for Mr. Parra. Mr. Roosen responded, “[number redacted] is our office.” See id.

On or about April 28, 2020, Investigator Chris Fultz of the Arizona

received a report from Mr. Parra that Mr. Roosen had been using his contractor’s license without his permission. Mr. Parra also alleged that Mr. Roosen opened an account in his name with Spencer’s (Spencers).

7. Investigator Fultz conducted an investigation into the allegations.

8. Mr. Parra alleged that Mr. Roosen entered into a construction contract

using NPC’s name and license number with Jerry and Pam Ireland (the Irelands). Investigator Fultz was assigned to investigate a complaint of poor workmanship against NPC filed by the Irelands. Investigator Fultz closed the complaint because the work had been remedied by another contractor prior to the job site inspection.

9. Investigator Fultz reviewed the workmanship complaint and noticed that

Mr. Roosen was listed as the contractor. Investigator Fultz also noticed that Mr. Roosen was listed in case 2019-0148 for contracting without a license.

10. On June 11, 2020, at about 1530 hours, Investigator Fultz met with the Irelands and conducted a photographic lineup. Investigator Fultz asked the Irelands to identify Mr. Roosen. The Irelands successfully identified Mr. Roosen. Investigator Fultz conducted a photographic lineup of Mr. Parra. The Irelands were unable to identify Mr. Parra. Mrs. Ireland alleged that Mr. Roosen attempted to cash checks that were made out to other trades that were hired to do work on her home.

11. Mr. Parra learned that Mr. Roosen had agreed to remodel the Irelands

home in the name of NPC.

12. On March 21, 2020, Mr. Parra sent a letter to Mr. Roosen demanding that

Mr. Roosen cease and desist from using NPC’s license or his name. The letter was dated March 7, 2020.

13. On July 20, 2020, Investigator Fultz observed Mr. Roosen’s

website for his company Respace Unlimited. Mr. Roosen had Mr. Parra listed as the contractor on his website.

14. Spencers filed a complaint (2020-02169) with the Registrar against NPC.

After Spencers learned that there was a felony investigation against Mr. Roosen, the Spencers closed the case against NPC.

15. Investigator Fultz contacted a customer service representative from CFA

Cabinetry and confirmed that Mr. Roosen had opened an account in the name of NPC. Investigator Fultz concluded that CFA Cabinetry had not been paid on the account.

16. Investigator Fultz learned through a subpoena issued to Bank of America

that Mr. Parra was not listed on Mr. Roosen’s company bank account but rather: Jefferson B. Roosen, Yvonne I. Roosen, and Flavio E. Gonzales.

17. Mr. Parra explained to Investigator Fultz that in the last year, he was

medically bed ridden and was unaware that Mr. Roosen was using his license.

18. Investigator Fultz contacted Mr. Roosen and discussed the allegations.

Mr. Roosen denied that he opened an account in the name of NPC with Spencers and CFA Cabinetry. Mr. Roosen stated that he and Mr. Parra were no longer business partners. Mr. Roosen also stated that Mr. Parra’s name was not on his website. Investigator observed Mr. Roosen’s business website on August 20, 2020. Mr. Parra was still listed as a contractor. See Exhibit 10.

19. At the completion of his investigation, Investigator Fultz concluded that Mr. Roosen had violated the provisions of A.R.S. § 32-1151 (Engaging in contracting without a license). A Cease & Desist Order was issued to Mr. Roosen for violating the provisions of A.R.S. § 32-1151. A civil penalty in the amount of $2,500.00 was assessed for one count of contracting without a license.

20. On October 9, 2020, the Registrar issued a Notice of Hearing on Contested Case setting the above-captioned matter for hearing on November 10, 2020 at the Office of Administrative Hearings. The Notice of Hearing provided, “As stated in the Citation issued to Respondent, the Registrar found that Respondent engaged in an act of contracting that required Respondent to be licensed. The Registrar issued the Citation, including assessment of a civil penalty, under A.R.S. § 32-1166.01(C).”

21. A hearing was held on December 21, 2020.

22. At hearing, the Registrar presented the testimony of Investigator Fultz and submitted exhibits 1 through 11. Mr. Roosen testified on behalf of himself and presented the testimony of Daniel Schlink. Mr. Roosen submitted exhibits 1, 3, and 4 through 9.

23. Investigator Fultz testified regarding his investigation of the allegation of unlicensed contracting.

24. Mr. Roosen asserted that Dan Schlink was the project manager for the Ireland project. Mr. Roosen stated that he does not know whether Mr. Schlink was a direct employee or an independent contractor. Mr. Roosen stated that Mr. Schlink would purchase supplies for the project.

25. Roosen asserted that he is a designer and not a contractor. Mr. Roosen stated that Mr. Parra was aware of the Ireland project and that he was not bed ridden for the year prior to the Ireland complaint. Mr. Roosen also testified that he and Mr. Parra had a partnership and joint accounts.

26. Mr. Schlink testified that he started working fulltime for the “firm” in March of 2019. Prior to that time, he stated that he worked for Mr. Parra as plumbing subcontractor. Mr. Schlink stated that his role was to make sure NPC’s projects were being maintained. However, Mr. Schlink stated that he had no decision making authority. Mr. Schlink testified that he spoke to Mr. Roosen about design issues. Mr. Schlink handled about 5 to 6 projects for Mr. Parra.

27. Mr. Schlink testified that he attended a Registrar meeting on behalf of NPC with a client to oversee repairs to correct it for the client. Mr. Schlink testified that Mr. Parra asked him to attend the meeting and copied Mr. Roosen. Mr. Roosen and Mr. Schlink attended the meeting and corrective action was required. Mr. Schlink stated that

Mr. Parra told him that he believed that his partnership with Mr. Roosen was not fair.

Mr. Schlink testified that he saw Mr. Parra bringing material and checking on the job at a time when he was understood to be “bed ridden.” Mr. Schlink stated that Mr. Parra came out to the job few times and was introduced to the Irelands. On cross examination, Mr. Schlink testified that he could not remember whether the Ireland project lasted more than a year. Mr. Schlink testified that he was at the Ireland project almost every day and would also go to other jobs. Mr. Schlink testified that Mr. Parra was ill for about four to five months and returned to work January of 2020. Mr. Schlink testified that the only contractor’s license that he held was a plumbing license and has not held a license in a few years.

28. Investigator Fultz testified that the last time that Mr. Schlink was licensed with the Registrar was in 2010.

CONCLUSIONS OF LAW

1. The Registrar bears the burden of proof to establish Mr. Roosen’s violation of A.R.S. § 32-1151 by a preponderance of the evidence.

2. Arizona contracting law prohibits a person from acting as a contractor without a license. The law allows an exemption from licensure, with certain limitations, for a “handyman.” An unlicensed handyman can perform construction work, with certain exclusions, such as that the work does not require a permit, as long as the aggregate price for the job, including labor and materials, does not exceed $1,000.00. 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.

3. 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.

4. Upon consideration review of all the evidence, the Tribunal concludes that the preponderance of the evidence shows that Respondent engaged in contracting without a license.

5. 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.” With respect to the appropriate amount of the civil penalty for Respondent’s violation 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. Evidence received in this matter supports the imposition of a $2,500.00 penalty pursuant to A.A.C. R4-9-131(10).

RECOMMENDED ORDER

Based upon the foregoing, it is recommended that the Registrar affirm the finding that Jefferson B. Roosen violated A.R.S. § 32-1151 and affirm the decision to assess a civil penalty in the amount 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.

Done this day, January 11, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors