ALJDEC - Licensing

2022A-05361-CPA-ROC · Registrar of Contractors · 2023-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT,

v.

Jesus G. Diaz

DBA: M & J Landscaping, LLC

License No. ,

RESPONDENT.

No. 2022A-05361-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 17, 2023

APPEARANCES: Assistant Attorney General Wesley Cox represented Complainant Arizona Registrar of Contractors. Investigator Alex Figueroa appeared as a witness. Respondent

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

Background and Procedure

On or about July 1, 2022, the Arizona Registrar of Contractors (“Registrar”) received an unlicensed contractor complaint (“Complaint”) from Sambit Roy (“Homeowner”), wherein Homeowner alleged that on December 22, 2021, he contracted with M & J Landscaping, LLC to construct a flower bed with a stone finish. The Complaint indicates that the contract price was $2,350.00 and Homeowner paid $3,400.00 to M & J Landscaping, LLC. In the Complaint, Homeowner alleged that M & J Landscaping, LLC abandoned the project.

On or about November 3, 2022, the Registrar issued to Jesus G. Diaz, doing business as M & J Landscaping, LLC (“Respondent”), a Cease & Desist Order and a civil citation for violating Ariz. Rev. Stat. § 32-1151, imposing a civil penalty in the amount of $1,500.00 for the violation. Respondent requested a hearing on the charged violation.

The Registrar referred the matter to the Office of Administrative Hearings, an independent State agency, for an evidentiary hearing. A hearing was held on April 17, 2023. The Registrar presented the testimony of Investigator Alex Figueroa and submitted eight exhibits. Respondent failed to appear, and consequently, did not present any controverting evidence.

Hearing Evidence

Investigator Alex Figueroa’s testimony

Investigator Figueroa testified that he was assigned to investigate this Complaint by the Registrar.

Investigator Figueroa conducted interviews with Homeowner and Jesus Diaz. Homeowner informed Investigator Figueroa that a friend had recommended Respondent and an individual named Jesus came to the property to bid the job. Jesus was at the property for approximately 30 to 45 minutes and he failed to disclose that he was not a licensed contractor. Homeowner received an invoice from Francisco Garcia, doing business as MJ Landscaping, LLC, in the amount of $3,700.00. Homeowner had never met Francisco Garcia. The scope of work delineated on the invoice included the installation of a barbeque, a flower bed, stone work, and irrigation, as well as plant installation. Homeowner paid MJ Landscaping $3,400.00. Respondent failed to complete the project.

Investigator Figueroa conducted a records search of Corporation Commission records for M & J Landscaping, LLC and found that Jesus Diaz is a member.

On September 7, 2022, Investigator Figueroa spoke with Jesus Diaz by phone. Mr. Diaz acknowledged working with Homeowner and expressed that he wanted to obtain a contractor’s license.

On September 19, 2022, Investigator Figueroa met in person with Mr. Diaz. During that meeting, Mr. Diaz acknowledged contracting with Homeowner and that his business name is M & J Landscaping, LLC. Mr. Diaz further acknowledged that the work he performed included constructing a flower bed and installing irrigation. Regarding the invoice, Mr. Diaz explained that he contracted for the work, accepted the payment, and that Francisco Garcia is a friend of his.

Mr. Diaz refunded $530.00 to Homeowner.

Investigator Figueroa testified that he issued the Cease & Desist Order to Respondent for contracting without a license. Based upon his investigation, Investigator Figueroa determined that the work Respondent contracted to perform would have required an R-21 Residential Hardscaping and Irrigation license. Investigator Figueroa further determined based upon his investigation that the project performed by Respondent was in excess of the handyman exemption limit of $1,000.00.

Investigator Figueroa assessed a $1,500.00 civil penalty as authorized by statute.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Registrar bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.

“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 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.”

Ariz. Rev. Stat. § 32-1151 prohibits contracting without a license, providing in relevant part:

It is unlawful for any person, firm, partnership, corporation, association or other organization, or a combination of any of them, to engage in the business of, submit a bid or respond to a request for qualification or a request for proposals for construction services as, act or offer to act in the capacity of or purport to have the capacity of a contractor without having a contractor's license in good standing in the name of the person, firm, partnership, corporation, association or other organization as provided in this chapter, unless the person, firm, partnership, corporation, association or other organization is exempt as provided in this chapter.

Ariz. Rev. Stat. § 32-1121(A)(14) sets forth a “handyman’s exemption” to licensure requirements and provides in relevant part:

Any person other than a licensed contractor engaging in any work or operation on one undertaking or project by one or more contracts, for which the aggregate contract price, including labor, materials and all other items . . . is less than $1,000.

Ariz. Rev. Stat. § 32-1166.01(A)(4) authorizes the Registrar to assess a civil penalty against a person who has been found to have contracted without a license in violation of Ariz. Rev. Stat. § 32-1151 of “at least $200 for each violation but not more than $2,500 for multiple violations committed on the same day.”

The credible, substantial, probative, and uncontroverted evidence established that Respondent violated Ariz. Rev. Stat. § 32-1151.

RECOMMENDED ORDER

Based on the foregoing,

it is recommended that the Registrar affirm the finding that Respondent Jesus G. Diaz, doing business as M & J Landscaping, LLC, violated Ariz. Rev. Stat. § 32-1151.

IT IS FURTHER RECOMMENDED that the Registrar affirm its decision to assess against Respondent Jesus G. Diaz, doing business as M & J Landscaping, LLC, a civil penalty in the amount of $1,500.00 for contracting without a license.

it is FURTHER recommended that the $1,500.00 civil penalty be paid by Respondent Jesus G. Diaz, doing business as M & J Landscaping, LLC, in certified funds payable to the Registrar on or before the effective date of the Final Order in this matter.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 will be forty (40) days from the date of that certification.

Done this day, April 26, 2023.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Martín Quezada, Director

Registrar of Contractors

[email redacted]

Alex Figueroa

[email redacted]

Seth T. Hargraves

Wesley Cox

Assistant Attorneys General

[email redacted]

[email redacted]

Jesus G. Diaz

DBA: M & J Landscaping, LLC

[email redacted]

By: OAH Staff