ALJDEC decisions subject to certification as final
2022A-02244-CPA-ROC · Registrar of Contractors · 2022-07-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Arizona Registrar of Contractors,
COMPLAINANT
v.
Daniel Elliot Dean Sr.
RESPONDENT
No. 2022A-02244-CPA-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: July 26, 2022
APPEARANCES: Seamus Monaghan, Esq. for the Registrar of Contractors; Daniel Elliot Dean Sr. on his own behalf
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On April 28, 2022, the Registrar of Contractors (“ROC”) issued a Notice of Hearing on Appealable Agency Action setting the above-captioned matter for hearing on May 31, 2022 at the Office of Administrative Hearings in Phoenix, Arizona. The matter was continued and the hearing was conducted on July 26, 2022.
Through its Notice of Hearing, ROC alleged that Respondent Daniel Elliot Dean Sr. had engaged in an act of contracting that required a license, and that ROC had issued a Citation to Mr. Dean that included assessment of a civil penalty under Ariz. Rev. Stat. section 32-1166.01(C).
Mr. Dean appeared and testified on his own behalf. Mr. Dean is not an Arizona licensed contractor.
ROC presented the testimony of Sheldon White, one of its investigators, who is also ROC’s custodian of records.
Mr. White’s duties include checking various sources for any instances of unlicensed contracting. While performing that task he found two advertisements for electrical services under the name Fixed Income Electrical Services that Mr. Dean had placed in the Facebook Marketplace.
Nether advertisement included a disclaimer showing that Mr. Dean was not a licensed contractor. The advertisements show that Mr. Dean is a retired electrical contractor from southern California.
Mr. White’s review of ROC’s records show that in 2013, Mr. Dean received a warning for advertising construction services without a license.
On March 31, 2022, ROC issued to Mr. Dean a Cease and Desist Order and Civil Citation (the “Citation”) charging him with one count of advertising without a license in violation of Ariz. Rev. Stat. section 32-1165, and assessing against him a civil penalty of $1000.
Mr. Dean requested a hearing. In his request, Mr. Dean explained that he assumed what he was doing was allowable because his advertisement shows that he was a retired electrician and that the types of jobs he was doing did not require a permit.
In his request for hearing, Mr. Dean also explained that he suffers from Parkinson’s disease and that he requires very costly medications. In his request for hearing and at the hearing, Mr. Dean explained that he did not recall the warning he had previously received for advertising without a license, asserting that his health issues have affected his memory.
Mr. White testified to the effect that based on his discussions with Mr. Dean, the work Mr. Dean was performing would have fallen under the handyman exception but for the fact that Mr. Dean’s advertisements did not include the required statement that he was not licensed.
Mr. White testified that ROC assessed the $1000 civil penalty as a matter of policy based on the fact that Mr. Dean is a repeat offender with less than two prior offenses.
Mr. White verified that as of a week before the hearing date, Mr. Dean was no longer advertising on Facebook.
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).
The preponderance of the evidence shows that Mr. Dean, who is not licensed, advertised for contracting services without including the statement that he was not a licensed contractor as required to qualify for the “handyman” exception to ROC’s licensing requirements. See Ariz. Rev. Stat. § 32-1121(A)(14). Consequently, Mr. Dean has violated Ariz. Rev. Stat. section 32-1165.
Because Mr. Dean violated section 32-1165, ROC had authority to issue its Cease and Desist Order and to assess against Mr. Dean a civil penalty of between $200 and $2500. Ariz. Rev. Stat. §§ 32-1166 and 32-1166.01.
In this case there are factors that militate in favor of reducing the penalty from $1000 to $200. In particular, the work Mr. Dean was performing did exceed the value of the handyman exception and none of the aggravating factors found in Ariz. Admin. Code section R4-9-131 apply to Mr. Dean.
RECOMMENDED ORDER
IT IS RECOMMENDED that the Registrar of Contractors’ Cease and Desist Order be affirmed;
IT IS FURTHER RECOMMENDED that civil penalty against Mr. Dean be reduced to $200;
IT IS FURTHER RECOMMENDED that Mr. Dean be required to pay that civil penalty within 45 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.
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-137160-45720000Done this day, July 27, 2022.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
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-137160-45720000By Miranda Alvarez
Legal Secretary