ALJDEC decisions subject to certification as final

2022A-11447-CPA-ROC · Registrar of Contractors · 2023-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Torray Newton Gray

DBA: Gray's Dependable Home Services

RESPONDENT

No. 2022A-11447-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 22, 2023

APPEARANCES: Assistant Attorney General Wesley Cox represented the Arizona Registrar of Contractors (“Registrar”). Torray Newton Gray dba Gray's Dependable Home Services (“Respondent”) represented himself. Investigator Miles Crosby appeared as a witness.

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

FINDINGS OF FACT

Background and Procedure

The Registrar received an unlicensed contractor complaint (“Complaint”) from Sherrene Caley, wherein Ms. Caley alleged that on August 7, 2022, she entered into a contract with Respondent to perform some home repairs, some demolition work, and install cabinets. The Complaint indicates that the contract price was $13,000.00 and Homeowner paid Respondent 50% upfront. Ms. Caley became dissatisfied with Respondent’s workmanship and also the delays she believed were geared to get more hours in on the job, Respondent borrowing her tools, Respondent’s carelessness and not cleaning up after he performed work.

In February 2023, the Registrar issued a Cease & Desist Order and a civil citation for violation of Ariz. Rev. Stat. § 32-1151 with a civil penalty in the amount of $1,500.00 for the violation along with a civil citation for violation of Ariz. Rev. Stat. § 32-1165 with a civil penalty in the amount of $1,000.00 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. The Registrar presented the testimony of Investigator Miles Crosby and submitted six exhibits along with copies of applicable law. Respondent provided no further exhibits.

At hearing, Investigator Miles Crosby indicated that the imposition of penalties was discretionary on the Investigator’s part, but proffered that the charged penalties were appropriate because the $13,000.00 contract amount had been far above what’s known as the “handyman” exemption.

At hearing, Respondent indicated that he did not disagree with the Registrar’s investigation, but explained that when he had read through the contracting laws, he had understood that a homeowner did not need to use a licensed contractor. Respondent argued that Ms. Caley had specifically sought him out as an unlicensed worker and that he had made clear to her that he was not licensed.

By the time of the hearing, Respondent had not yet become licensed, citing some studying yet to be completed and tight finances.

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 the multiple violations committed on the same day.”

Ariz. Rev. Stat. § 32-1165 provides as follows:

[E]xcept 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.

The credible, substantial, probative, and uncontroverted evidence established that Respondent violated Ariz. Rev. Stat. §§ 32-1151 and 32-1165.

RECOMMENDED ORDER

Based on the foregoing,

it is recommended that the Registrar affirm the finding that Respondent Torray Newton Gray dba Gray's Dependable Home Services has violated Ariz. Rev. Stat. §§ 32-1151 and 32-1165.

IT IS FURTHER RECOMMENDED that the Registrar affirm its decision to assess against Respondent Torray Newton Gray dba Gray's Dependable Home Services, a civil penalty of $1,500.00 for contracting without a license and a civil penalty of $1,000.00 for advertising to perform, for compensation, work that is subject to the Registrar’s jurisdiction without first obtaining such license.

it is FURTHER recommended that the total of $2,500.00 civil penalty be paid by Respondent in certified funds to the Registrar on or before the effective date of the 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 (40) days after the date of that certification.

-54864001

001

-137160-45720000Done this day, June 11, 2023

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Registrar of Contractors

c/o Legal Department

1700 W. Washington Street, Suite 105

Phoenix, AZ 85007

[email redacted]

Torray Newton Gray

DBA: Gray's Dependable Home Services

[email redacted]

Arizona Registrar of Contractors

[email redacted]

By: OAH Staff