ALJDEC decisions subject to certification as final

2021A-00252-CPA-ROC · Registrar of Contractors · 2021-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Brian Kent Berry,

DBA: Berry's Custom Landscapes,

RESPONDENT

No. 2021A-00252-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 15, 2021

APPEARANCES: Respondent Brian Kent Berry appeared on his own behalf via Google Meet. The Arizona Registrar of Contractors was represented by Assistant Attorney General John Tellier appearing via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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Respondent appealed a Civil Citation issued by the Registrar of Contractors (Registrar) for advertising without a license. The Civil Citation imposed aggregate civil penalties in the amount of $1,500.00. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law, and Recommend Order are made, finding a violation and recommending assessment of a $500.00 civil penalty.

FINDINGS OF FACT

Background

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

On or about January 19, 2021, Investigator Daniel Rhodes observed Brian Kent Berry’s (Respondent) vehicle in a parking lot at a Home Depot in Mesa, Arizona. Investigator Rhodes noted that Respondent’s vehicle had signage which stated, “Berry’s Custom Landscaping” and did not include a notation of “Not a Licensed Contractor.”

Investigator Rhodes then searched the internet which revealed a website for Berry’s Custom Landscaping and a Facebook page. Neither of these sites contained the phrase, “Not a Licensed Contractor”.

Investigator Rhodes searched the Registrar’s license records and found no active or pending license status to Respondent, but noted that Respondent had a previous license that expired in 2012.

Investigator Rhodes determined that Respondent had violated the provisions of A.R.S. § 32-1165 (advertising without a license). A Cease & Desist Order was issued to Respondent on January 21, 2021, for violating the provisions of A.R.S. § 32-1165. A total of $1,500.00 in civil penalties was assessed.

At hearing, Investigator Rhodes testified that in 2014 and 2019, Respondent was found guilty of unlicensed contracting, and based upon the pictures in Respondent’s Facebook feed, Investigator Rhodes believed that Respondent’s business was still active.

Respondent testified that since he had lost his son a couple of years ago, he was now working full time at Home Depot and no longer in the landscaping business. Respondent further testified that he believed that he had not run afoul of the Registrar’s rules as he did remove language that he was licensed. He further testified that he was unaware that he needed to include the “Not a Licensed Contractor” language in his signage and web presence.

Further, Respondent testified that he has since removed all signage from his truck and has dropped his Facebook page. As to the website however, Respondent testified that he was trying to remove or edit the website, but he was not the site administrator and could not contact anyone to help him remove the webpage.

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 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 acting as a contractor without a license.

A.R.S. § 32-1165 provides as follows:

Except as authorized by section 32-1121, subsection A, it 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 under the terms of this chapter unless the person first obtains a license under the terms of this chapter.

A.R.S. § 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.”

The evidence established a violation of Arizona contracting laws. The Tribunal finds that Respondent was credible when testifying that his truck no longer contains the signage and that his Facebook page has been removed. While the Tribunal is sympathetic to Respondent’s perceived lack of website technology prowess, the website is still in violation of the Registrar’s rule and as such, concludes that a total civil penalty of $500.00 is warranted in this case.

RECOMMENDED ORDER

Based upon the foregoing, it is recommended that the Registrar affirm the finding that Respondent violated A.R.S. § 32-1165, reverse the decision to assess a civil penalty in the amount of $1,500.00, and assess a civil penalty of $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 thirty (30) days from the date of certification.

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-137160-45720000Done this day, April 27, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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