ALJDEC decisions subject to certification as final

2022A-06019-ROC · Registrar of Contractors · 2023-11-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Don Aunthony Flynn

License No. ,

RESPONDENT

No. 2022A-06019-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 1, 2023

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

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

______________________________________________________________________

Respondent appealed a Cease & Desist Order issued by the Registrar of Contractors (Registrar) for contracting without a license. The Cease & Desist Order imposed a civil penalty 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 is not a licensed contractor in the State of Arizona.

On or about July 21, 2022, Investigator Sheldon White observed Don Aunthony Flynn (Respondent) in the midst of a remodeling project at 5312 Rabbit Brush Rd., Parks, Arizona 86018.

Investigator White searched the Registrar’s license records and found no active or pending license status for Respondent.

Investigator White determined that Respondent had violated the provisions of A.R.S. § 32-1151 (contracting without a license). On July 22, 2022, a Warning Letter was issued to Respondent informing him that civil or criminal action may be taken against him for contracting without a license.

A Cease & Desist Order was issued to Respondent on July 21, 2022, for violating the provisions of A.R.S. § 32-1151. A civil penalty was assessed in the amount of $2,500.00.

Respondent timely requested a hearing and the Registrar issued a Notice of Hearing on September 2, 2022. After several continuances, a hearing was held on November 1, 2023.

At hearing, Investigator Brian Binkney testified as to the above timeline and action taken by the Registrar. Investigator Binkney also testified that the cost of the project was $160,270.00 which was well over the $1,000.00 limit for unlicensed contractors.

Respondent failed to appear at the hearing and therefore failed to present any testimony or evidence as to why the Cease & Desist Order and/or amount of the civil penalty should be issued. It is also noted that Respondent had an attorney during the pendency of this matter and the tribunal granted a Motion to Withdraw on September 5, 2023, and that a Minute Entry granting a continuance to November 1, 2023 with the Google Meet information was electronically mailed to Respondent at his e-mail address of record on August 18, 2023.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The Respondent bears the burden of proof to establish that the Registrar should not have issued the Cease & Desist Order by a preponderance of the evidence. See A.R.S. § 41-1092.07(G); A.A.C. R2-19-119; 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.

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. § 32-1166.01(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.”

Because Respondent failed to appear, he did not meet the burden to establish that the Cease & Desist Order and/or the imposition of the Civil Penalty was inappropriate or otherwise contradictory to law.

RECOMMENDED ORDER

Based upon the foregoing, it is recommended that the Registrar affirm the finding that Respondent violated A.R.S. § 32-1151, and affirm the civil penalty in the amount 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 will be forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, November 16, 2023.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Don Aunthony Flynn

[email redacted]

Mona Baskin

[email redacted]

By: OAH Staff