ALJDEC decisions subject to certification as final

2021A-00698-CPA-ROC · Registrar of Contractors · 2022-02-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Joshua James Punko,

DBA: JP's Painting and Remodeling,

RESPONDENT

No. 2021A-00698-CPA-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 31, 2022

APPEARANCES: John Tellier, Esq. for the Registrar of Contractors; Joshua James Punko on his own behalf

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On May 5, 2021, the Registrar of Contractors (“ROC”) issued a Notice of Unlicensed Hearing setting the above-captioned matter for hearing on June 7, 2021 at the Office of Administrative Hearings in Phoenix, Arizona.

Through its Notice, ROC alleged that Respondent Joshua James Punko had engaged in an act of contracting that required a license, and that ROC had issued a Citation to Mr. Punko that included assessment of a civil penalty under Ariz. Rev. Stat. section 32-1166.01(C).

By agreement of the parties the matter was continued and the hearing was conducted on January 31, 2022.

Mr. Punko appeared and testified on his own behalf; ROC presented the testimony of Sheldon White, one of its investigators.

ROC received from Wendy Stevenson a complaint showing that Mr. Punko had engaged in unlicensed contracting. In her complaint, Ms. Stevenson acknowledged that Mr. Punko told her that he was not licensed before she hired him.

Mr. Stevenson alleged a number of workmanship deficiencies and that some of the work had not been completed, but ROC did not investigate the quality or completeness of Mr. Punko’s work. The contract price was $21,000 and Ms. Stevenson paid Mr. Punko $20,500.

Mr. Punko acknowledged that he had contracted without a license as alleged.

Mr. Punko testified to the effect that Ms. Stevenson was out of state when the work was being performed and that the air conditioning was not working. After Ms. Stevenson learned that someone had been peeking in her windows, she demanded that he finish the project before the agreed upon date.

Mr. Punko walked the property with a realtor who was apparently representing Ms. Stevenson. Although there were some punch list items and some work that was not finished, the work was not deficient.

ROC issued to Mr. Punko a Cease and Desist Order and Civil Citation charging him with one count of contracting without a license in violation of Ariz. Rev. Stat. section 32-1151, and assessing against him a civil penalty of $2500.

Mr. Punko requested a hearing. After ROC issued the Notice of Unlicensed Hearing, the parties agreed to continue the hearing to allow Mr. Punko to complete the steps required to obtain a license.

At the hearing, Mr. Punko testified that he had passed the required examination for a license that would cover painting and drywall work.

Mr. Punko had not however applied for a license, which he explained was because the person at the school he had been working with told him that she would not (or should not) file the application until this matter was resolved.

Mr. Punko testified that ROC’s original investigator in the matter had informed him that if he obtained his license, ROC would reduce the civil penalty to $200.

Mr. Punko expressed his confusion as to what he saw as a dichotomy between what the school was telling him and what ROC’s investigator had told him.

Mr. White testified that the work Mr. Punko performed would have required B-3, R-37 and R-11 licenses.

ROC’s exhibits show that in 2014, Mr. Punko was found to have advertised without a license and paid a civil penalty.

CONCLUSIONS OF LAW

ROC bears the burden persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(3).

A party raising an affirmative defense bears the burden of proving that defense. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

Mr. Punko acknowledges that he did contract without a license, which is a violation of Ariz. Rev. Stat. section 32-1151.

Because Mr. Punko violated section 32-1151, ROC had authority to issue its Cease and Desist Order and to assess against Mr. Punko a civil penalty of between $200 and $2500. Ariz. Rev. Stat. §§ 32-1166 and 32-1166.01.

Because Mr. Punko was not licensed as of the hearing date, section 32-1166.07 that allows ROC to waive part of a civil penalty is not applicable. Nevertheless, ROC has discretion in setting the civil penalty as seen by the fact that section 32-1166.01 allows for a range of civil penalties from $200 to $2500.

In this case, ROC did not prove that any of the factors set out in Ariz. Admin. Code section R4-9-131 are applicable in determining the gravity of Mr. Punko’s violation, although Mr. Punko may not have performed all the work for which he was paid. In mitigation is the fact that Mr. Punko has made an effort to obtain a license as seen by his testimony that he has passed the required examination.

Considering, the above, the civil penalty assessed against Mr. Punko should be reduced to $500.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors’ Cease and Desist Order be affirmed;

IT IS FURTHER RECOMMENDED that civil penalty against Joshua James Punko be reduced to $500;

IT IS FURTHER RECOMMENDED that Mr. Punko be required to pay that civil penalty within 30 days of the 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 is forty days after the date of that certification.

-54864001

001

-137160-45720000Done this day, February 2, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

-54864001

001

-137160-45720000