ALJDEC decisions subject to certification as final

2024A-04927-CPA-ROC · Registrar of Contractors · 2025-02-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Clyde Russell Neville

DBA: GC Consultants

RESPONDENT

No. 2024A-04927-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 24, 2025

APPEARANCES: Complainant Arizona Registrar of Contractors was represented by Assistant Attorney General Charles Hover III. Respondent Clyde Russell Neville appeared on his own behalf.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s Exhibits 1-25 were admitted into evidence.

____________________________________________________________________

FINDINGS OF FACT

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

On or about April 29, 2024, Investigator Jim Dimond observed Clyde Russell Neville (Respondent) in the midst of a construction project at 833 N. Cochise Drive, Dewey, Arizona 86327.

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

Investigator Dimond determined that Respondent had violated the provisions of A.R.S. § 32-1151 (contracting without a license). A Cease & Desist Order was issued to Respondent on May 15, 2024, 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 June 21, 2024. After several continuances, a hearing was held on January 24, 2025.

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

Investigator Dimond testified that initially, members from the Yavapai County Development Services Office e-mailed him, informing Investigator Dimond that they believed that Respondent was working as a contractor on a project. The Development Services Office also shared a couple of voicemails from Respondent which appeared to demonstrate that Respondent was taking a more active role rather than a consultant.

Based upon this, Investigator Dimond began his investigation and examined the building permits in this matter, and while Respondent was not listed as the general contractor on the project, he was listed as a “Designing Engineer” for the project.

Investigator Dimond testified that he also researched the Board of Technical Registration, to determine if Respondent was a registered engineer or architect, and found that Respondent did not have such designation.

In addition, Investigator Dimond reviewed the Registrar’s database and found that Respondent had two previous licenses revoked, and that there were no pending applications for Respondent to obtain a license.

Investigator Dimond also researched Department of Economic Security Records for and social security wages paid to Respondent and found none. Likewise, Investigator Dimond searched the Arizona Corporations Commission database to determine if there was an active company named “GC Consultants”, and found none.

Further, Investigator Dimond testified that Respondent was also issued a Cease and Desist Order on March 5, 2024 in cause number 2024-02658. Investigator Dimond also testified that the matter had been brought before the Office of Administrative Hearings, and that the Registrar ultimately accepted the Administrative Law Judge’s decision finding that Respondent engaged in unlicensed contracting and imposed a $200.00 fine.

Investigator Dimond also reviewed the inspection history on the project and noticed that there were many inspection failures which were concerning.

Finally, drove to the property where he saw Respondent engage in conversation with several workers. Investigator Dimond testified that it appeared that Respondent was supervising the crew and instructing the crew as to what work to perform.

Investigator Dimond concluded that Respondent’s actions on this jobsite went way beyond a typically consulting role and also noted that even as a consultant, one would still have to be a licensed contractor under the statutes.

Respondent testified that he was not the owner on the project, but did the drawings and supplemental drawings on the project. He testified further that he had over 50 years of construction experience, and received many calls to assist on projects where there are problems.

In addition, Respondent testified that he was at the jobsite many times but just provided advice to Mr. Orton.

Finally, Respondent testified that he was 77 years old and that this was his last year in the business, and wanted the Registrar to go after contractors who are trying harm customers, rather than those trying to help.

Frank David Orton was the property owner and testified that Respondent was just there to consult on the project and did not observe him providing any direction to the workers. Mr. Orton also testified that Respondent did not pay for any materials, but just made recommendations as to what he needed.

Gary Fortune and testified that he was a licensed contractor with CQH Contracting and that Respondent was not an employee of the company. Randy Instine also testified that he was unaware of Respondent engaging in any decision making or scheduling with the workers.

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. § 32-1101(A)(b) defines “contractor” as including:

subcontractors, specialty contractors, floor covering contractors, hardscape contractors and consultants who represent that they are able to supervise or manage a construction project for the property owner's benefit, including hiring and firing specialty contractors, scheduling work on the project and selecting and purchasing construction material.

In this case, the greater weight of the evidence demonstrated that Respondent was engaging in unlicensed contracting on this project. Moreover, the evidence was clear that Respondent was attempting to skirt the Arizona statutes by claiming he was merely “consulting”. Because of that, the tribunal finds that the Cease and Desist Order was appropriate as Respondent was engaging in contracting without a license.

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.”

Given the fact that Respondent had at least two known projects under this arrangement, at about the same time, the tribunal believes that the imposition of the $2,500.00 fine 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 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, February 7, 2025.

/s/ Adam D. Stone

Administrative Law Judge

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

Tom Cole, Director

Registrar of Contractors

Clyde Russell Neville

DBA: GC Consultants

[email redacted]

Charles S. Hover, III

Office of the Attorney General

[email redacted]

By: OAH Staff