ALJDEC

99F-UF0127-ROC · Registrar of Contractors · 1999-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 26, 1999. APPEARANCES: Harlan W. Green appeared representing Barbara M. Felzer, Defendant doing business as Interior Design by Barbara. Patti Shelton, Assistant Attorney General, appeared representing the Registrar of Contractors (“Registrar”).

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether the Registrar is justified in assessing a civil penalty against Defendant for contracting without a proper license. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Barbara M. Felzer, Defendant doing business as Interior Design by Barbara, is an interior designer, unlicensed by the Registrar. 2. On or about April 7, 1998, Ms. Felzer agreed to oversee the replacement of carpet in the home of Patrick and Betty Grant. 3. Ms. Felzer subsequently contacted Ken Schneider, doing business as Schneider Floor Coverings, to replace the carpet. The preponderance of the evidence establishes that Mr. Schneider’s contractor’s license was revoked at the time, but that Ms. Felzer was unaware of the revocation. 4. In July 1998, Mr. Schneider proceeded to install carpet in the Grants’ home. However, completion of the job was delayed because of a shortage in the amount of carpet ordered. After Mr. Schneider installed the remaining carpet, the Grants complained that two different carpets were installed. Mr. Schneider agreed to remedy the problem. In addition, the Grants complained that some of the carpet, at least, was substandard. The preponderance of the evidence establishes that Mr. Schneider failed to complete the job as he promised the Grants, and that the carpet he installed was, indeed, substandard. 5. Dissatisfied with Mr. Schneider’s performance, the Grants contacted the Registrar. Dan Fishel, an investigator with the Registrar, conducted an investigation into the matter. He discovered information concerning Ms. Felzer’s role in this matter. The information included the fact that Ms. Felzer hired Mr. Schneider and that she paid him the sum of $2,000.00 in advance for his work. When he failed to perform, Ms. Felzer, to her credit, returned to the Grants the sum of $3,482.00 that they paid her to oversee the project and perform other decorating services. Nevertheless, based on the investigation, the Registrar concluded that Ms. Felzer engaged in contracting without a proper license. Accordingly, on October 16, 1998, the Registrar ordered that Ms. Felzer Cease and Desist such activity, and issued a citation against her for violating state law. 6. The preponderance of the evidence demonstrates that Ms. Felzer entered an agreement with the Grants to oversee the replacement of their carpet for compensation. The preponderance of the evidence demonstrates also that Ms. Felzer hired a subcontractor. Ms. Felzer assumed, therefore, responsibility for the subcontractor performing satisfactory work. Indeed, the preponderance of the evidence demonstrates that Ms. Felzer managed efforts to ensure that the work was done to the satisfaction of her clients.

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §32-1151 states: It is unlawful for a person, firm, partnership, corporation, association or other organization, or a combination of any of them, to engage in the business, act or offer to act in the capacity, or purport to have the capacity of contractor without having his own license in good standing in his own name therefor as provided in this chapter . . . .

Merely supervising or managing others engaged in contracting is included in “contracting.” A.R.S. §§32-1101(A)(3) and (B).

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to §32- 1104(A). 2. The Registrar has the burden of demonstrating by a preponderance of the evidence that it may take disciplinary action against Defendant. Cf. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the 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 1182 (rev. 6th ed. 1990). 3. With respect to Defendant’s alleged unlicensed activity, the Registrar sustains its burden of demonstrating that Defendant engaged in contracting without a proper license; that is, the Registrar demonstrates sufficient evidence that Defendant committed a technical violation of A.R.S. §32-1151. Contrary to Defendant’s belief, it makes no difference whether her agreement with the Grants to oversee the project was oral or written, an agreement still existed. In mitigation, however, Defendant’s violation was unintentional and she acted beyond what was reasonably necessary to make her clients, the Grants, whole. Furthermore, there is nothing in this matter indicating that Defendant committed any act increasing the gravity of the violation. See Arizona Administrative Code (“A.A.C.”) R4-9-131.

RECOMMENDED DECISION In view of the foregoing, it is recommended that the Director invoke his discretion and assess a civil penalty against Defendant for the minimum sum allowed by law for a . . . citation. Done this day, February 10, 1999.

_________________________________ Kip M. Micuda Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 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 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826