ALJDEC decisions subject to certification as final

2021A-00805-CPA-ROC · Registrar of Contractors · 2021-06-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Kenneth J. Skiby

DBA: Custom Concrete Creations,

RESPONDENT

No. 2021A-00805-CPA-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 21, 2021

APPEARANCES: Assistant Attorney General Sarah Asta represented the Arizona Registrar of Contractors. Investigator Sheldon White appeared as a witness. Respondent Kenneth J. Skiby, doing business as Custom Concrete Creations, failed to appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

1. At all times relevant to this matter, Respondent Kenneth J. Skiby, doing business as Custom Concrete Creations, (“Respondent”) was not a licensed contractor in the State of Arizona.

2. On or about February 11, 2021, Arizona Registrar of Contractors (“Registrar”) Investigator Sheldon White conducted a routine inspection of business cards for advertising compliance at a Sherwin-Williams location at 225 West Willis Street, in Prescott, Arizona. During the course of the inspection, Investigator White discovered a business card that contained the name, Ken Skiby, and identified Mr. Skiby as the owner of “Custom Concrete Creations.” The business card contained the address 7550 Dreamcatcher Drive, Prescott Valley, AZ 86315. The business card did not contain a valid contracting license number, nor the phrase, “Not a Licensed Contractor.”

3. Investigator White testified that a Registrar database search was conducted to determine Respondent’s license status. Upon review, it was discovered that Respondent had never been licensed by the Registrar. Investigator White also conducted a Google search for Respondent, and based upon his findings, he opened a case.

4. Arizona Corporation Commission records were reviewed and revealed that Ken Skiby is the agent for K & M Skiby & Sons, LLC, a corporate entity formed in 2004 with the same address contained on the business card found by Investigator White.

5. During his investigation, Investigator White also discovered an advertisement on the Houzz website for Skiby & Sons, that states, “[c]ustom woodworking: We are a family business that designs and builds furniture, cabinets, wine cellars, doors, and much more.” Investigator White testified that the advertisement and photographs, as well as the reviews contained on the website were verification that Respondent was advertising construction services. The website indicates that “typical job costs” range from $100.00 to $100,000.00.

6. Investigator White testified that Respondent’s work and advertising exceeds the $1,000.00 limit for the handyman exception. Investigator White acknowledged that the reviews within the advertisement date back to 2013, however, the advertisement is current.

7. Investigator White also testified about a Linkedin profile for Ken Skiby which identified him as the owner of Skiby & Sons Custom Woodworking that indicates: “I am a Custom Woodworker that builds anything from doors, Cabinets and Furniture to wine cellars, tasting rooms and remodels.”

8. On or about March 2, 2021, the Registrar issued a Cease & Desist Order (“Order”) whereby Respondent was ordered to immediately cease and desist all advertising without a license in Arizona. Respondent was charged with violating A.R.S. § 32-1165, Advertising Without a License. Respondent was assessed a civil penalty in the amount of $1,500.00 for Advertising Without a License. Investigator White testified that he only charged Respondent with a violation for advertising without a license because he did not find Respondent in the act of contracting without a license. Investigator White further testified that Respondent was assessed the maximum civil penalty for advertising without a license pursuant to the Registrar’s policy, because Respondent had previously received a warning in another matter, and continued to advertise without a license despite the warning.

9. Upon receipt of the Order, Respondent was provided three options: i) pay the civil penalty; ii) obtain a contractor’s license; or iii) request a hearing to dispute the Order.

10. On or about March 11, 2021, Respondent requested a hearing to “reconsider the fine . . .”

11. On April 19, 2021, the Registrar issued a Notice of Unlicensed Hearing setting the above-captioned matter for hearing on May 21, 2021, at 9:00 a.m. On May 4, 2021, the Office of Administrative Hearings issued an Order to the parties containing the Google Meet information for the hearing.

12. A hearing was held on May 21, 2021, at 9:00 a.m. The Registrar presented the testimony of Investigator White who testified consistently with the above delineated findings. Respondent did not appear, and therefore did not present any controverting evidence or factors in mitigation of the civil penalty.

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 violation(s) 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 Vazzano 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 advertising as a contractor without a license. The Registrar can order a person who advertises as a contractor 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.

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(B)(4) authorizes the Registrar to assess a civil penalty in an amount of at least $200.00 for each violation but not more than $2,500.00 for multiple violations committed on the same day. With respect to the appropriate amount of a civil penalty for a violation of A.R.S. § 32-1165, A.R.S. § 32-1166.01(G) empowers the Registrar to “adopt rules relating to the 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.

The evidence established that Respondent violated A.R.S. § 32-1165 and had previously been issued a warning for advertising without a license. Based on the circumstances presented by this matter, the Tribunal concludes that a civil penalty of $1,500.00 for Respondent’s violation of A.R.S. § 32-1165 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 and assess a total civil penalty of $1,500.00 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 forty (40) days from the date of certification.

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-137160-45720000Done this day, June 4, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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