ALJDEC decisions subject to certification as final

2020A-03719-CPA-ROC · Registrar of Contractors · 2021-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Jeffrey Okuley,

DBA: I Am Handyman,

RESPONDENT

No. 2020A-03719-CPA-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 28, 2021

APPEARANCES: Assistant Attorney General Sarah Asta represented the Arizona Registrar of Contractors. Jeffrey Okuley, doing business as I Am Handyman, failed to appear. Investigator Michael Wiskow appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

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 Arizona Registrar of Contractors (“Registrar”).

FINDINGS OF FACT

Background and Procedure

On or about August 3, 2020, the Registrar received an unlicensed contractor complaint (“Complaint”) from Molly Phalen (“Homeowner”), wherein Homeowner alleged that on April 1, 2020, she contracted with Jeffrey Okuley, doing business as I Am Handyman (“Respondent”), to repair her roof, install a carport/roof extension, install a window and kitchen skylight, and other odd jobs, including landscaping, painting, and fixing a leak. The Complaint indicates that the contract price was $7,500.00 and Homeowner paid Respondent $8,302.81. Homeowner was not dissatisfied with Respondent’s workmanship, but rather, Homeowner focused her Complaint on Respondent’s “ethics.”

On or about October 13, 2020, the Registrar issued a Cease & Desist Order and a civil citation for violating of Ariz. Rev. Stat. § 32-1151, with a civil penalty in the amount of $1,500.00 for the violation. Respondent requested a hearing on the charged violation.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on April 28, 2021. The Registrar presented the testimony of Investigator Michael Wiskow and submitted eight exhibits. Respondent failed to appear, and consequently, did not present any controverting evidence on his behalf.

Hearing Evidence

Investigator Michael Wiskow’s testimony

Investigator Wiskow testified that he was assigned to investigate this Complaint by the Registrar.

Investigator Wiskow conducted interviews with Homeowner and Respondent, and conducted a records search of the criminal justice system and Registrar records, and obtained evidence of payments Homeowner had paid to Respondent. Homeowner provided screenshots and bank account documentation substantiating the amounts paid to Respondent, all during May 2020. A payment on May 17, 2020, was in the amount of $1,088.50, and a payment on May 28, 2020 was in the amount of $1,180.00.

Investigator Wiskow testified that he issued the Cease & Desist Order to Respondent for contracting without a license. Based upon his investigation, Investigator Wiskow determined that the work Respondent contracted to perform would have required an R-61 Carpentry, Remodeling and Repairs license. Investigator Wiskow further determined based upon his investigation that the project performed by Respondent was in excess of the handyman exemption limit of $1,000.00.

Investigator Wiskow assessed a $1,500.00 civil penalty as authorized by statute.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Registrar bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.

“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 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.”

Ariz. Rev. Stat. § 32-1151 prohibits contracting without a license, providing in relevant part:

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.

Ariz. Rev. Stat. § 32-1121(A)(14) sets forth a “handyman’s exemption” to licensure requirements and provides in relevant part:

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 $1,000.

Ariz. Rev. Stat. § 32-1166.01(A)(4) authorizes the Registrar to assess a civil penalty against a person who has been found to have contracted without a license in violation of Ariz. Rev. Stat. § 32-1151 of “at least $200 for each violation but not more than $2,500 for the multiple violations committed on the same day.”

The credible, substantial, probative, and uncontroverted evidence established that Respondent violated Ariz. Rev. Stat. § 32-1151.

RECOMMENDED ORDER

Based on the foregoing,

it is recommended that the Registrar affirm the finding that Respondent Jeffrey Okuley, doing business as I Am Handyman, violated Ariz. Rev. Stat. § 32-1151.

IT IS FURTHER RECOMMENDED that the Registrar affirm its decision to assess against Respondent Jeffrey Okuley, doing business as I Am Handyman, a civil penalty of $1,500.00 for contracting without a license.

it is FURTHER recommended that the $1,500.00 civil penalty be paid by Respondent 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 is forty (40) days after the date of that certification.

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-137160-45720000Done this day, May 6, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000