ALJDEC decisions subject to certification as final

2023A-13890-CPA-ROC · Registrar of Contractors · 2024-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Kevin Coleman

DBA: Dialed In Epoxy Systems

RESPONDENT

No. 2023A-13890-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 2, 2024

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

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Arizona Registrar of Contractors Exhibits 1-7.

_____________________________________________________________________

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 $1,500.00. 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 $1,500.00 civil penalty.

FINDINGS OF FACT

Background

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

In December 2023, the Registrar received a complaint from the Coopers that Respondent installed an epoxy floor on the garage.

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

Investigator Fultz determined that Respondent had violated the provisions of A.R.S. § 32-1151 (contracting without a license), and on a Cease & Desist Order was issued to Respondent on May 10, 2023, for violating the provisions of A.R.S. § 32-1151. A civil penalty was assessed in the amount of $1,500.00.

Respondent timely requested a hearing, and the Registrar issued a Notice of Hearing on June 11, 2024.

By an Order Granting Continuance entered on September 26, 2024, the hearing was set for December 2, 2024. The Order was emailed to Respondent at the email address of record as listed in its request for hearing.

Although the start of the hearing was delayed approximately 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Further, Respondent did not request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.

At hearing, Investigator Fultz testified as to the above timeline and action taken by the Registrar.

Investigator Fultz also testified that there had been at least 2 other instances of Respondent contracting without a license. In the first matter, the homeowner did not want to proceed with its complaint. In the second matter however, a Warning Letter was issued to Respondent on or about January 12, 2024.

In addition, Investigator Fultz testified that the matter had been referred to the Maricopa County Attorney’s Office for prosecution. On or about November 5, 2024, a Direct Complaint was filed with the White Tank Justice Court. Investigator Fultz testified further that Respondent had an initial appearance scheduled on December 3, 2024.

Finally, Investigator Fultz testified that he believed that the $1,500.00 civil penalty was appropriate given the circumstances of Respondent’s prior actions. Investigator Fultz testified that the Registrar attempts to use “Progressive Discipline” in these matters, and because of the 2 prior complaints, was how he determined the amount of the civil penalty.

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. § 32-1164 provides as follows:

Commission by a contractor of any of the following acts is a class 1 misdemeanor:

1. Any act specified in section 32-1154, subsection A, paragraph 6 or 9.

2. Acting in the capacity of a contractor within the meaning of this chapter without a license.

B. For the first offense under subsection A of this section, a contractor shall be fined not less than one thousand dollars. For the second or any subsequent offense under subsection A of this section, a contractor shall be fined not less than two thousand dollars.

C. If a person is convicted of a misdemeanor pursuant to subsection A of this section and the court sentences the person to a term of probation, the court shall order that as conditions of probation the person do all of the following:

1. Pay in full all transaction privilege tax or use tax amounts that are due under title 42, chapter 5, article 2 or 4 and that arise from the acts or omissions constituting the offense.

2. Pay in full all transaction privilege or use tax amounts that are due to the county in which the offense occurred and that arise from the acts or omissions constituting the offense.

3. Pay in full all transaction privilege or use tax amounts that are owed to the local municipal government, city or town in which the offense occurred and that arise from the acts or omissions constituting the offense.

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.

Further, the tribunal believes that the civil penalty requested by the Registrar is just under the circumstances.

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 $1,500.00 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, December 16, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Kevin Coleman Coleman

[email redacted]

Mona Baskin Esq.

Office of the Attorney General

[email redacted]

By: OAH Staff