ALJDEC - Licensing

2022A-11267-CPA-ROC · Registrar of Contractors · 2023-03-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors

COMPLAINANT

Rene Paulino Nunez

License No.

RESPONDENT

No. 2022A-11267-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 8, 2023

APPEARANCES: Assistant Attorney General Scott Donald appeared on behalf of the Arizona Registrar of Contractors (Registrar). Respondent Rene Paulino Nunez appeared on behalf of himself.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. At all times relevant to this matter, Respondent Rene Paulino Nunez was a member of Elements of Design Construction, LLC (Elements).

2. Elements holds licensed number 322149 issued by the Registrar.

3. On June 5, 2019, Respondent owned a home located at 2911 N. Estrella Ave., Tucson, AZ, 85705 – 1538 (the home). See Exhibit 1 and 2. At the time, there was a porch lattice on the northeast corner of the home. See Exhibit 2, Bates 009.

4. On June 5, 2019, Respondent submitted an application for a permit to demolish the porch lattice to the City of Tucson. See Exhibit 2, Bates 004, 005, and 009.

Respondent signed the permit application as “Rene Nunez”. Respondent did not list ROC license name or number on the application.

5. Respondent demolished the porch lattice.

6. On June 16, 2019, Respondent listed the home for sale for the amount of $169,000. See Exhibit 5, Bates 027. The list price for the home was changed to $159,000 effective August 7, 2019, and $144,000 effective August 27, 2019.

7. In September of 2019, Respondent sold the home to Marianne Kasparian for $137,000. See Exhibit 5, Bates 027 and 036-038.

8. On July 1, 2022, Steve Hammons, an investigator for the Registrar of Contractors, conducted an investigation into Respondent’s application for permits as an owner rather than an Arizona licensed contractor.

9. During his investigation, Investigator Hammons discovered that

Respondent was a member of Elements. Investigator Hammons learned for the City of Tucson and Pima County building departments that Respondent pulled five permits as a contractor and four permits as an owner.

10. Investigator Hammons contacted Respondent and inquired with Respondent regarding the permits that Respondent obtained as “owner/builder.” Respondent reported that he believed that he could obtain the permits as an “owner/builder” because he owned the homes. Respondent told Investigator Hammons that the home was for his daughter.

11. On December 12, 2022, the Registrar issued a Cease and Desist Order to Respondent. See Exhibit 4. Through the Order, the Registrar ordered Respondent to cease and desist all unlicensed and advertising in the State of Arizona. The Registrar further notified Respondent through the Order that it had reason to believe that Respondent acted as an unlicensed contractor, in violation of A.R.S. section 32-1151 when he pulled a permit for work performed at the home without being exempt from the licensing under A.R.S. section 32-1121(A). The Registrar assessed a civil penalty against Respondent in the amount of $2,500. See id.

12. Respondent requested a hearing regarding the Cease and Desist Order and the civil penalty.

13. Respondent explained at hearing that his daughter was living in the home but decided later to purchase a different house near the home.

CONCLUSIONS OF LAW

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

Complainant bears the burden of proof to establish Respondent’s statutory violation 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 Vazanno 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).

Under Ariz. Rev. Stat. section 32-1101(A)(3), “Contractor” is synonymous with the term “builder” and means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that, for compensation, undertakes to or offers to undertake to, purports to have the capacity to undertake to, submits a bid or responds to a request for qualification or a request for proposals for construction services to, does himself or by or through others or directly or indirectly supervises others to:

(a) Construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or any other structure or work in connection with the construction.

(b) Connect such structure or improvements to utility service lines and metering devices and the sewer line.

Ariz. Rev. Stat. section 32-1121(A)(5) provides:

This chapter shall not be construed to apply to:

Owners of property who improve such property or who build or improve structures or appurtenances on such property and who do the work themselves, with their own employees or with duly licensed contractors, if the structure, group of structures or appurtenances, including the improvements thereto, are intended for occupancy solely by the owner and are not intended for occupancy by members of the public as the owner's employees or business visitors and the structures or appurtenances are not intended for sale or for rent. In all actions brought under this chapter, except an action against an owner-occupant as defined in section 33-1002, proof of the sale or rent or the offering for sale or rent of any such structure by the owner-builder within one year after completion or issuance of a certificate of occupancy is prima facie evidence that such project was undertaken for the purpose of sale or rent. For the purposes of this paragraph, "sale" or "rent" includes any arrangement by which the owner receives compensation in money, provisions, chattels or labor from the occupancy or the transfer of the property or the structures on the property.

5. Ariz. Rev. Stat. section 32-1151 provides:

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.

6. The preponderance of the evidence shows that Respondent listed the home for sale approximately two weeks after he pulled the permit for demolition work. Respondent demolished the porch lattice and sold the home within the following four months. Respondent’s conduct is prime facie evidence under 32-1121(A)(5) that he pulled the permit and demolished the porch lattice with intent to sell the home.

7. A.R.S. § 32-1166(A) 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 the violations of A.R.S. § 32-1151, A.R.S. § 32-1166(A) 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.

8. The preponderance of the evidence shows that Respondent acted as an unlicensed contractor, which is a violation of Ariz. Rev. Stat. section 32-1151.

9. Therefore, the Tribunal concludes that the assessed civil penalty of $2,500.00 was appropriate.

RECOMMENDED ORDER

Based upon the foregoing, it is recommended that the Registrar affirm the finding that Respondent violated A.R.S. § 32-1151 and the assessed civil penalty of $2,500 to be paid in certified funds to the Registrar on or before the effective date of the Registrar’s final Order in this matter.

Done this day, March 28, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Martín Quezada, Director

c/o Legal Department

Registrar of Contractors

1700 W. Washington St., Ste. 105

Phoenix, AZ 85007

[email redacted]

Rene Paulino Nunez, Respondent

705 W. Alameda St.

Tucson, AZ 85713

[email redacted]

Scott Donald, Assistant Attorney General

Office of the Attorney General, Counsel for the Registrar

1275 W. Washington St.

Phoenix, AZ 85007

[email redacted]