ALJDEC decisions subject to certification as final

04F-2193-ROC · Registrar of Contractors · 2004-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 14, 2004

APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its president and qualifying party, Richard Hunt (“Hunt”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

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

FINDINGS OF FACT

1. Complainant contends that he was hired by Respondent to act as a salesman and that Respondent has failed to pay him commissions on specified jobs that he sold for the company. Respondent disputes any claim that Complainant is owed any further money. These issues are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. Complainant worked for Respondent during the period of October 2003 through December 22, 2003. His job was to sell paving and sealcoating work. b. Complainant testified that his payment arrangement with Respondent was to be paid a guaranteed sum of $2,500.00 per month or 10% commission, whichever was greater. In this regard, Complainant submitted into evidence a document entitled “Dynamite Paving and Sealcoat, Inc. Payroll Action Notice.” This document was signed by Complainant and Hunt and provides that Complainant’s pay was to be determined by “2500 or 10% commission.” It does not specify whether the 10% is based on gross sales or profit. c. Complainant contends that the above-described 10% provision was based on gross sales and Hunt testified that it was based on 10% of profit on a job. Moreover, in this regard, Hunt testified that Respondent only works on a profit margin of 15%. d. The parties clearly had a “falling-out” in the latter portion of December and Complainant quit his employment with Respondent. Complainant contends that at the time of leaving Respondent’s employment he had sold $39,098.00 worth of work in December and $24,696.00 in November (which was paid to Respondent in December). Thus, Complainant claims that he should have received a 10% commission on $63,794.00 worth of work sold. According to Complainant this commission payment would be $6,379.40 and since he was paid the sum of $2,500.00 (the guaranteed minimum) in December, plus a check for $625.00 on December 23, 2003, he claims that Respondent still owes him the sum of $3,254.40. e. Complainant could not explain what the aforementioned December check for $625.00 represented but Hunt testified that same was a “settlement” check given to Complainant at the time of his termination of employment to resolve any outstanding claims for further payment by Complainant. Complainant denies that the $625.00 was a settlement check and when asked why he accepted and cashed the check, he testified that it was right before Christmas and he needed the money. f. Complainant presented specified documents into evidence to establish his claim to $63,794.00 in sales for November and December. A number of the documents fail to show that the bids were accepted by the customer. However, Complainant wrote the word “sold” on these unsigned documents. Very little weight can be assessed to the unsigned documents as any proof that Respondent performed and was paid on these jobs. g. Hunt testified that on the “Rodriquez” job, Complainant’s proposal was too low, due to extras provided to the customer. He contends that under the circumstances of this job he and Complainant had agreed to waive any entitlement to a commission by Complainant. He contends that the parties made a similar agreement that there would be no commission paid to Complainant on the “Mona Sullivan” job. Complainant denies that he ever agreed to waive his entitlement to commission on these jobs.

3. As demonstrated by the foregoing findings, sharply conflicting testimony was presented by the parties regarding whether or not any further salary payment is due to Complainant. The testimony was such that no basis exists to disbelieve either parties’ representations. The burden of proof to establish entitlement to further salary related payments was on Complainant and he did not meet that burden.

CONCLUSIONS OF LAW

1. Complainant has the burden of demonstrating by a preponderance of the evidence that Respondent violated the charged sections of the State’s Contracting laws. Proof by “preponderance of the evidence” means that it 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).

2. Complainant failed to sustain his burden of proof to establish that Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that this Citation (no. 04-2193), together with the complaint upon which it is based, be dismissed. 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 in this matter will be forty (40) days from the date of that certification. Done this day, April 16, 2004

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2004, to:

Israel G. Torres, Director Registrar of Contractors ATTN: Jennifer Brown 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