ALJDEC decisions subject to certification as final

2020A-03782-CPA-ROC · Registrar of Contractors · 2021-06-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Michael Luis Valdez,

RESPONDENT

No. 2020A-03782-CPA-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 11, 2021

APPEARANCES: Assistant Attorney General Sarah Asta represented the Arizona Registrar of Contractors. Investigator John Smith appeared as a witness. Respondent Michael Luis Valdez did not appear.

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 4, 2020, the Registrar received a “hotline tip” concerning unlicensed contracting by Michael Luis Valdez (“Respondent”) at a jobsite located at 349 East Ocean View Drive, Casa Grande, Arizona.

Registrar Investigator John Smith was assigned to investigate the matter and on August 5, 2020, went to the jobsite address to investigate the allegation of unlicensed contracting by Respondent. Investigator Smith spoke with Respondent at the jobsite and Respondent admitted to performing contracting, including irrigation and installation of pavers, with a total contract price of $6,500.00.

On or about August 18, 2020, the Registrar issued a Cease & Desist Order to Respondent for violating Ariz. Rev. Stat. § 32-1151. The Registrar did not assess a civil penalty. 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. The hearing was continued multiple times at the Registrar’s request in order to afford Respondent the opportunity to obtain a contractor’s license. A hearing was held on June 11, 2021. The Registrar presented the testimony of Investigator Smith and submitted four exhibits. Respondent failed to appear, and consequently, did not present any controverting evidence on his behalf.

Hearing Evidence

Investigator John Smith’s testimony

Investigator Smith testified consistently with the above Findings of Fact. Investigator Smith testified that when he spoke with Respondent, he explained that the work Respondent was performing required Respondent to be licensed, specifically a CR-21 hardscape and irrigation license, and Respondent admitted he did not have a contractor’s license. Investigator Smith explained the handyman exception to Respondent, and that it would not apply to this project because it was over the monetary limit.

Investigator Smith explained that a civil penalty was not assessed against Respondent because this was Respondent’s first verified allegation of unlicensed contracting and there was no victim as the investigation was based on a hotline report rather than a filed complaint.

Investigator Smith testified that pursuant to the Cease and Desist Order, Respondent had the option of either obtaining a contractor’s license or requesting a hearing. Investigator Smith explained that Respondent advised that he intended to obtain a contractor’s license and was informed that he should also request a hearing and a settlement conference in order to allot himself more time in which to obtain a contractor’s license.

The hearing of this matter was continued multiple times in order to afford Respondent the opportunity to obtain a contractor’s license, and as of the hearing date, Respondent was not licensed and there was no pending licensure for Respondent.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Registrar bears the burden of proof to establish Respondent’s statutory violation 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.

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 Michael Luis Valdez violated Ariz. Rev. Stat. § 32-1151, and uphold the Cease and Desist Order.

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, June 29, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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-137160-45720000