ALJDEC decisions subject to certification as final

2022A-05763-CPA-ROC · Registrar of Contractors · 2022-12-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Curtis Richard Kolesar

License No. ,

RESPONDENT

No. 2022A-05763-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 1, 2022

APPEARANCES: Assistant Attorney General Justin Larson appeared via Google Meet on behalf of Complainant Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

Respondent appealed a Civil Citation issued by the Registrar of Contractors (Registrar) for contracting without a license. The Civil Citation imposed aggregate civil penalties in the amount of $2,500.00. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law, and Recommend Order are made, finding a violation and recommending assessment of a $2,500.00 civil penalty.

FINDINGS OF FACT

Background

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

On or about July 15, 2022, the Registrar received a complaint from Randall Jadlot regarding Curtis Richard Kolesar (Respondent). The complaint alleged that Respondent entered into a contract to construct a deck in Mr. Jadlot’s backyard for $32,139.00 and included a copy of a business card Respondent.

On or about July 22, 2022, Investigator Miles Crosby placed a phone call to Respondent. During the phone call, Respondent stated that he was operating under his father’s contracting license.

On August 1, 2022, Investigator Crosby contacted Respondent via email for further information and/or proof of father’s authorization to allow Respondent to use the license.

On or about August 10, 2022, Investigator Crosby contacted Respondent’s father via telephone. Respondent’s father stated during the call that he did not allow Respondent to use his license.

Investigator Crosby determined that Respondent had violated the provisions of A.R.S. § 32-1151 (Engaging in contracting without a license) and A.R.S. § 32-1165 (Advertising without a license). A Cease & Desist Order was issued to Respondent on August 19, 2022, for violating the provisions of A.R.S. § 32-1151 and A.R.S. § 32-1165. A total of $2,500.00 in civil penalties was assessed.

The Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on December 1, 2022. The Registrar mailed copies of the Notice of Hearing to Respondent at its address and email address of record. Further, the Office of Administrative Hearings also issued an order converting the hearing to Google Meet, which was emailed to Respondent at his email address of record.

A hearing was held on December 1, 2022. Complainant offered the testimony of Investigator Crosby and submitted 14 exhibits.

At hearing, Investigator Crosby testified as to the above timeline and believed that the civil penalties of $2,500.00 were appropriate in this case.

Investigator Crosby also testified that both through his observations of the work as well as the photographs contained in Complainant’s Exhibit 4, the unfinished deck could be a safety hazard.

Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, per counsel’s avowal at hearing, he spoke with Respondent at the outset of the case and re-sent Respondent a copy of the Notice of Hearing as well as the OAH’s Order setting the matter for Google Meet. Consequently, Respondent did not present any evidence to support his position.

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 violations 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 acting as a contractor without a license. The Registrar can order a person who performs contracting 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, but not more than $2,500.00 per day.

A.R.S. § 32-1151 provides as follows:

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. Evidence of securing a permit from a governmental agency or the employment of a person on a construction project shall be accepted in any court as prima facie evidence of existence of a contract.

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 two hundred dollars for each violation but not more than two thousand five hundred dollars for the multiple violations committed on the same day.” With respect to the appropriate amount of civil penalties for violations of A.R.S. § 32-1151, A.R.S. § 32-1166.01(G) 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.

The evidence established a violation of Arizona contracting laws. As to the aggravating factors identified in A.A.C. R4-9-131, Respondent falsely represented that he was a licensed contractor on his business card, and left the decking in an unfinished state which had the potential to become hazardous to the health, safety and or general welfare of the public. Thus, the assessed civil penalty of $2,500.00 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. § 32-1151 and A.R.S. § 32-1165, and assess a civil penalty of $2,500.00 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.

-54864001

001

-137160-45720000Done this day, December 12, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically or by mail to:

Jeffrey Fleetham, Director

Registrar of Contractors

Curtis Richard Kolesar

[email redacted]

Justin Larson

[email redacted]

By Miranda Alvarez

Legal Secretary

-54864001

001

-137160-45720000