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2021A-00752-CPA-ROC · Registrar of Contractors · 2022-01-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors, No. 2021A-00752-CPA-ROC

COMPLAINANT, ADMINISTRATIVE LAW JUDGE DECISION v.

Steven Pishdad

RESPONDENT. HEARING: October 6, 2021 APPEARANCES: Respondent Steven Pishdad appeared on behalf of himself. Assistant Attorney General Sarah A. Asta appeared on behalf of the Arizona Registrar of Contractors. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. Respondent Steven Pishdad is not a licensed contractor in the State of Arizona. 2. In April of 2021, Registrar Investigator David Thomas discovered that Mr. Pishdad advertised premium business signs, fine carpentry, and home remodeling on his business website, “professionalbusinesssigns.com.” The website did not include the language “not a licensed contractor.” See Exhibits 3 and 4. 3. On June 15, 2021, the Arizona Registrar of Contractors (Registrar) issued a CEASE & DESIST ORDER (ORDER) to Mr. Pishdad. Thorough the ORDER, the Registrar alleged that Mr. Pishdad had engaged in advertising without a license and assessed a civil penalty in the amount of $1,000. 4. On August 26, 2021, the Registrar issued a Notice of Hearing setting the above-captioned matter for hearing on October 6, 2021. 5. A hearing was held on October 6, 2021.

6. At hearing, the Registrar presented the testimony of Investigator Thomas and submitted exhibits 1 through 6. Mr. Pishdad testified on behalf of himself. 7. Mr. Pishdad did not dispute that “professionalbusinesssigns.com” is the domain for his business. However, Mr. Pishdad asserted that he was not aware that the website was “still up.” Mr. Pishdad stated that he does not know how to remove the language on the website because he did not create the website. Mr. Pishdad stated that he does not receive any business from the website because he no longer conducts business with the contractor who performed the construction work. Mr. Pishdad also contended that the Registrar’s ORDER violates his right to free speech and expression under the First Amendment of the United States Constitution. 8. Investigator Adams opined that Mr. Pishdad would need a contractor’s license to advertise work related to fine carpentry and home remodeling. Additionally, Mr. Pishdad did not qualify for an exemption under ARIZ. REV. STAT. § 32-1121 because Mr. Pishdad did not include in his advertising that he is not a licensed contractor. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. 2. The Registrar bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See ARIZ. REV. STAT. (“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). 3. Arizona contracting law prohibits a person from advertising without a license.1 The Registrar can order a person who advertises 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.2 A.R.S. § 32-1165. A.R.S. § 32-1166(A). 2 4. Regarding the appropriate amount of civil penalties for violations 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. R4-9-131.3 5. The Registrar established by a preponderance of the evidence that Respondent advertised without a license in violation of A.R.S. § 32-1165. 6. Because Pishdad’s website did not include the required disclaimer, he does not qualify for the “handyman” exception to Registrar’s licensing requirements. See ARIZ. REV. STAT. § 32-1121(A)(14). 7. Mr. Pishdad has presented no legal authority to support his claim that the ORDER violates the First Amendment of the United States Constitution. 8. Consequently, the Tribunal concludes that a civil penalty of $1,000 for advertising without a license is warranted in this case.

3 A.A.C. R4-9-131 sets forth permissible aggravating factors to be considered, in relevant part as follows: In assessing a civil penalty as provided for under A.R.S. § 32-1166(A), the Registrar shall give due consideration to whether the person cited or any individual acting on that person’s behalf has committed one or more of the following acts in determining the gravity of the cited violation: 1. Falsely represented to be a licensed contractor. 2. Failed to perform any work for which money was received. 3. Executed or used any false or misleading documents for the purpose of inducing a person to enter into a contract or to pay money for work to be performed. 4. Made false or misleading statements for the purpose of inducing a person to enter into a contract or to pay money for work to be performed. 5. Failed or neglected to apply funds which were received for the purpose of obtaining or paying for services, labor, materials, or equipment. 6. Performed work that was or had the potential to become hazardous to the health, safety, or general welfare of the public. 7. Performed work that deliberately was in violation of building codes, safety laws, labor laws, workers’ compensation laws, or unemployment insurance laws. 8. Performed work that failed to meet minimum acceptable trade or industry standards or practices or was not performed in a good and workmanlike manner. 9. Has committed any other act which would otherwise be cause for disciplinary action if the person cited had been properly licensed pursuant to A.R.S. Title 32, Chapter 10. 10. Has committed two or more prior violations. 11. Performed work that has caused loss or damage to the structure, its appurtenances, or property being worked upon or has caused loss or injury to any person. 3 RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar affirm the finding that Respondent Steven Pishdad violated A.R.S. § 32-1165 and affirm the imposition of a civil penalty in the amount of $1,000.00 for advertising without a license. The $1,000.00 civil penalty shall be paid 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 shall be forty (40) days from the date of certification. Done this day, October 26, 2021. /s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors