ALJDEC decisions subject to certification as final

2021A-01215-CPA-ROC · Registrar of Contractors · 2021-06-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT,

v.

Christian Omar Limon,

dba A&K Remodel Services LLC,

RESPONDENT.

No. 2021A-01215-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 04, 2021 at 9:00 AM.

APPEARANCES: Assistant Attorney General John Tellier, Esq. appeared on behalf of the Arizona Registrar of Contractors (“Registrar”) with Mike Nation – Investigator as a witness. Christian Omar Limon appeared on behalf of A&K Remodel Services LLC (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

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

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

On October 10, 2019, the Registrar issued Respondent a Warning Letter in Case No. 2019-05088 for advertising without a license. Correspondence was sent to 11710 W. Shaw Butte Dr. El Mirage, AZ 85335, and was not returned by the United States Postal Service (“USPS”) as undeliverable.

On March 22, 2021, at 13817 W. Springdale Drive, Sun City West, AZ 85375, Registrar investigator Mike Nation (“Investigator Nation”) observed an advertisement on Respondent’s truck for “plumbing, electrical, painting and drywall” that failed to disclose that Respondent was “not a licensed contractor.” Seven (7) photographs were taken of the signage on Respondent’s truck. Investigator Nation also discovered that Respondent posted online advertisements, in both English and Spanish, on his website and social media which also failed to disclose that he was not a licensed contractor.

All of the advertisements listed the following contact information for Respondent:

A&K Remodel Service LLC

(602) 419-0738

11710 W. Shaw Butte Dr. El Mirage, AZ 85335

[email redacted]

On March 22, 2021, Investigator Nation also ran a query of the Registrar’s license records and could not locate an active, inactive, or pending license for Respondent.

On March 22, 2021, Investigator Nation also obtained Respondent’s entity information from the Arizona Corporate Commission (“ACC”). ACC records reflected that Respondent’s business was approved for incorporation on May 15, 2012, to Christian Limon, Statutory Agent, at 11710 W. Shaw Butte Dr. El Mirage, AZ 85335.

As a result of his observations, Investigator Nation created Case No. 2021-01215.

On March 30, 2021, Investigator Nation issued a Cease & Desist Order to Respondent in Case No. 2021-01215 for an alleged violation of Arizona Revised Statutes (“Ariz. Rev. Stat.) § 32-1165. Respondent was assessed a $1,000.00 civil penalty.

On April 05, 2021, the Registrar received an appeal request from Respondent.

On April 26, 2021, the Registrar referred the matter to the Office of Administrative Hearings (“OAH”) for an independent evidentiary hearing on June 04, 20201. The sole issue for hearing was to determine whether grounds exist for the Registrar to assess a Civil Penalty against Respondent based on an alleged violation(s) of Ariz. Rev. Stat. § 32-1165, as established by the evidence.

Hearing Evidence

The Registrar called Investigator Nation as a witness and submitted Exhibits 1-12 into the record. Christian Limon testified on behalf of Respondent. The Notice of Hearing was also admitted into the record as its own exhibit. The substantive evidence of record is as follows:

Christian Limon is the sole owner and proprietor of A&K Remodel Services LLC. The business is registered with the ACC at Mr. Limon’s residence; 11710 W. Shaw Butte Dr. El Mirage, AZ 85335, where he has resided for the past 11yrs.

Mr. Limon owns a dark blue 2002 Ford F-150 pickup truck. The truck bears the following Arizona license plate number: BWY9457.

On March 22, 2021, Mr. Limon’s truck was parked in front of 13817 W. Springdale Drive, Sun City West, AZ 85375 with signage advertising contracting services. No disclaimer was provided in the advertisement.

Mr. Limon’s online advertisements, in both English and Spanish, promoted “[O]ne stop service for all your home remodeling needs.” Mr. Limon also advised that he “provides services from simple handyman jobs all the way to complete layout remodels!” Mr. Limon further advertised that “[N]o job too big or small”

Upon receipt of the Registrar’s March 30, 2021, Cease & Desist Order Mr. Limon added a disclaimer to his online advertisements.

Mr. Limon denied receiving the Registrar’s prior warning, and further denied contracting on project in excess of $1,000.00.

Mr. Limon is currently studying to take his licensed contractor exam.

Closing Arguments

In closing, the Registrar argued that Respondent knew or should have known about the Registrar’s unlicensed contractor disclaimer requirements and Handyman Exception provisions because he was issued a prior written warning in October of 2019. The Registrar opined, pursuant to the Mailbox Rule, that Respondent indeed received the disciplinary correspondence because it was not returned as undeliverable. The Registrar concluded by noting that Respondent was impeached by more credible evidence in the record, and asked that its $1,000.00 Civil Penalty levied against Respondent be affirmed.

Respondent declined to provide a closing argument.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction and was properly brought before OAH for adjudication.

The Registrar bears the burden of proof to establish Respondent’s statutory violation(s) by a preponderance of the evidence.

“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 as 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.”

In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.” “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”

Arizona contracting law prohibits a person from acting as a contractor without a license.

Ariz. Rev. Stat. § 32-1165 provides, in pertinent part, as follows:

[I]t 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 ... unless the person first obtains a license.

Ariz. Rev. Stat. § 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.”

Here, the evidence of record clearly establishes that on March 22, 2021, Respondent violated Ariz. Rev. Stat. § 32-1165 for a second time. Respondent’s alleged ignorance of relevant rules and regulations is not a suitable justification or excuse for his conduct in this matter. Most notably, Respondent’s impeachment regarding his truthfulness, or lack thereof, regarding receipt of the Registrar’s October 10, 2019, Warning Letter and contracting for projects under $1,000.00 are factors in aggravation.

As such, the undersigned concludes that ground exist for the Registrar to assess a Civil Penalty against Respondent for his violation of Ariz. Rev. Stat. § 32-1165.

RECOMMENDED ORDER

Based upon the foregoing,

it is recommended that the Registrar affirm the Cease & Desist Order as issued on March 30, 2021.

IT IS FURTHER RECOMMENDED that the Registrar increase the Civil Penalty assessed against Respondent in Case No. 2021-01215 from $1,000.00 to $2,000.00.

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.

Done this day, June 17, 2021.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors