ALJDEC

99F-UA0252-ROC · Registrar of Contractors · 1999-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 19, 1999 at 9:00 a.m. APPEARANCES: The Arizona Registrar of Contractors appeared through his attorney, Montgomery Lee, Esq., Assistant Attorney General; Defendant appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

The issues on which evidence was presented at the hearing in this matter are whether Defendant violated Arizona statute by contracting without a license and, if so, the civil penalty that the Registrar of Contractors should assess against him. Based upon the entire record, the undersigned makes the following Findings of Fact, Conclusions of Law, and Recommended Order.

FINDINGS OF FACT

On January 22, 1999, at approximately 3:00 p.m., the Registrar’s investigator John D. Garner saw Defendant performing demolition work at a commercial building, located at 1090 Iron Springs Road in Prescott, that formerly had housed a Taco Bell restaurant. The individual was removing the Taco Bell emblem from the masonry facade on the building. Investigator Garner stopped, introduced himself, and inquired about the job and whether Defendant had a contractor’s license. Defendant told him that did not have a contractor’s license and that “Dave” had hired him to do the work for $1,000.00, but that he did not know Dave’s last name or information regarding how Dave could be reached. Investigator Garner asked Defendant to cease and desist the unlicensed contracting activity and come by his office, both of which Defendant did. At that time, Defendant expressed to Investigator Garner an interest in obtaining a contractor’s license. Investigator York testified that Defendant cooperated with the Registrar’s investigation. On January 25, 1999, Investigator Garner returned to photograph the Taco Bell and learned that Vista Foods oversaw the demolition project. Vista Foods’ Director of Operations was Dave Aykers. Investigator York also researched the Registrar’s records, but could not find any license issued to Defendant or license on which he was named. Investigator York later obtained from Vista Foods copies of two checks, both payable to Defendant in the amount $500.00 and dated February 1, 1999. Defendant had written his Arizona driver’s license number and put his thumbprint on the front of and endorsed the back of both checks to cash them. Defendant testified at the hearing that he works six days a week as an automobile mechanic and tow truck driver, making about $30 per day, and that he needed extra money because his wife is seven months’ pregnant. He is not interested at this time in becoming a contractor because he already has a job. Defendant also testified that Joe Casterina, the manager of the Taco Bell, had asked him to do the demolition job as a one-time project for some extra money. Defendant told Mr. Casterina that he did not have any special license. Because he did not believe the job could be done by one person working alone, Defendant paid his younger brother, his sister’s boyfriend, and his boss to help him. The check was made payable to Defendant because it was easier. After paying his helpers and about $200 for use of a truck and other equipment rental, Defendant made $400.00 for the job. Defendant testified that, when he undertook the job, he did not believe he needed a license to perform it and that he would not have undertaken it had he known it required a license. He did not work on the job after Investigator Garner ordered him to cease and desist, although his helpers later completed the project. CONCLUSIONS OF LAW

1. In this administrative proceeding, the Registrar bears the burden of proof and must establish a statutory violation by a preponderance of the evidence. See Arizona Administrative Code (“A.A.C.”) R2-19-119; see also Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (App. 1996). “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). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary at page 1064 (6th ed. 1990). The evidence establishes that Defendant violated Arizona Revised Statutes (“A.R.S.”) § 32-1101(A)(2)(a)[1] by undertaking to perform and actually performing himself and having others perform the demolition work at the Taco Bell on Iron Springs Road for $1,000.00 in compensation. The evidence does not establish that, in undertaking and performing the demolition work at the Taco Bell, Defendant fell within the so-called “handyman exception” set forth at A.R.S. § 32-1121(A)(14)[2] because the aggregate cost of labor and materials for the job exceeded $750.00. As the Registrar’s attorney pointed out in the hearing, the fact that Defendant may have spent $200 on equipment and paid $400 to his helpers does not lessen the aggregate cost of the job. None of the factors listed in the rules that the Registrar has adopted covering assessment of a civil penalty increase the gravity of Defendant’s violation. See A.R.S. § 32-1166(A). This is his first offense, he did not know he needed a contractor’s license to do the work, and there is no evidence that he obtained the Taco Bell job under false pretenses or failed to complete the job adequately. See A.A.C. R4-9-131.[3]

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Registrar assess a civil penalty against Defendant in the amount of $500.00.

Done this day, April 20, 1999.

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

By ___________________________

----------------------- [1] This statute defines a “Commercial Contractor,” who must be licensed, as any “person, firm, partnership, corporation, association or other organization, or any combination, that, for compensation, undertakes to or offers to undertake to, or purports to have the capacity to undertake to, submits a bid to, does himself or by or through others, or directly or indirectly supervises others . . . to . . . [c]onstruct, 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.” [Emphases added.]

[2] This statute exempts from the requirement of a license “[a]ny 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 seven hundred fifty dollars. . . .” [Emphasis added.]

[3] This regulation provides as follows:

In assessing the civil penalty as provided for under A.R.S. § 32-1166.A, the registrar shall give due consideration to whether the person cited or any individual acting on that person’s behalf has committed one or more of the following acts in determining the gravity of the cited violation: 1. Falsely represented to be a licensed contractor. 2. Failed to perform any work for which money was received. 3. Executed or used any false or misleading documents for the purpose of inducing a person to enter into a contract to pay money for work to be performed. 4. Made false or misleading statements for the purpose of inducing a person to enter in to a contract or to pay money for work to be performed. 5. Failed or neglected to apply funds which were received for the purpose of obtaining or paying for services, labor, materials or equipment. 6. Performed work that was or had the potential to become hazardous to the health, safety or general welfare of the public. 7. Performed work that deliberately was n violation of building codes, safety laws, labor laws, workers’ compensation laws or unemployment insurance laws. 8. Performed work that failed to meet minimum acceptable trade or industry standards or practices or was not performed in a good and workmanlike manner. 9. Has committed any other act which would otherwise be cause for disciplinary action if the person cited had been properly licensed pursuant to Chapter 10 of A.R.S., Title 32. 10. Has committed two or more prior violations. 11. Performed work that has caused loss or damage to the structure, its appurtenances or property being worked upon or has caused loss or injury to any person.

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