ALJDEC

99F-UA0211-ROC · Registrar of Contractors · 1999-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 6, 1999 APPEARANCES: The Registrar of Contractors (“Plaintiff”) was represented by Assistant Attorney General, Patti Shelton, and Defendant failed to appear. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Defendant does not hold a contractor’s license issued by Plaintiff. Defendant filed the instant appeal subsequent to his receipt of a civil penalty citation. 2. The following undisputed facts were established at the hearing and are important to note: a. On or about March 5, 1998, Defendant entered into a contract with a manufactured home vendor (“vendor”) to install new carpet in a specified home. The material cost was shown to be $1,070.00 and the installation fee charged by Defendant was $375.00. b. Although Defendant completed the installation of the carpet, the customer and vendor were not satisfied with the installation, due to wrinkling in the carpet that appeared shortly after Defendant completed his installation work. The vendor made several requests to Defendant to correct the deficiency in the carpet installation but received no favorable response from Defendant. The vendor ultimately hired another individual at a cost of $225.00 to repair the deficient carpet installation. c. The vendor filed a complaint with the Registrar of Contractors on December 17, 1998 regarding Defendant’s work on the project in question. The filed complaint was assigned to the Registrar’s investigator in the Prescott, Arizona office. d. The investigator interviewed Defendant and determined that he did not possess a contractor’s license. In addition, the investigator also determined that Defendant had been using a business card for carpet installation work, which did not identify him as an unlicensed contractor. e. As a direct result of the aforementioned investigation, the investigator issued a cease and desist order to Defendant to stop any form of advertising for construction related activity which did not contain the words “not licensed or unlicensed.” In addition, Defendant was issued a civil citation and civil penalty of $1,500.00. The penalty was broken down as $1,200 for contracting without a license and $300.00 for improper advertising. f. Defendant was advised by the investigator to apply for a contractor’s license within sixty (60) days of the issuance of the civil penalty and if same was issued it would then be possible that the civil penalty could be reduced. Defendant failed to apply for a license. 3. By his failure to appear for the scheduled hearing, Defendant failed to present any matters in defense or mitigation. 4. The evidence of record established a violation by Defendant of the applicable charged sections of the State’s Contracting laws.

CONCLUSIONS OF LAW

1. A.R.S. § 32-1151 prohibits contracting without a license and provides, in pertinent part, “it is unlawful for a person...to engage in the business, act, or offer to act in the capacity…of a contractor without having his own license in good standing…” 2. A.R.S. § 32-1121A (14) (c) requires an individual seeking exemption from licensure under the “handyman” exemption to include the words “unlicensed” or “not licensed” in any form of advertising. A.R.S. § 32-1101A (1) provides, in pertinent part, that “advertisement means any written…dissemination, solicitation or circulation which is intended to…induce any person to enter into an agreement for contracting services…including business cards…” (emphasis added). 3. Defendant violated the provisions of A.R.S. §§ 32-1151 and 32- 1121A (14) (c). 4. Pursuant to the provisions of A.R.S. §32-1166, the citation issued to Defendant should be affirmed, thereby properly subjecting Defendant to the imposition of a civil penalty for the violation proven herein. 5. A.R.S. §32-1166 provides for imposition of a civil penalty ranging from a minimum of $250.00 to a maximum of $2,500.00 for each citation. Based on all of the salient facts and circumstances presented herein, it appears that the civil penalty assessed by the Registrar of Contractors was fair and appropriate.

RECOMMENDED ORDER

In view of the foregoing, it is recommended, based upon the entire case record, that the citations issued in this matter be affirmed so as to provide for the imposition of a civil penalty against Defendant in the total amount of $1500.00. This civil penalty shall be paid to the Registrar of Contractors on or before thirty (30) days subsequent to the effective date of the Order entered in this matter.

Done this day, April 14, 1999.

______________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of April, 1999, to:

Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826