ALJDEC decisions subject to certification as final

07F-L0277-ROC · Registrar of Contractors · 2007-08-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 14, 2007 APPEARANCES: Tamerah Sigler, Complainant; Rex Wolterman, on behalf of Respondent. ADMINISTRATIVE LAW JUDGE: Michael K. Carroll _____________________________________________________________________

On January 22, 2007, a Complaint was filed with the Registrar of Contractors alleging that Respondent failed to pay sales commissions owed to Complainant. On April 3, 2007, a Citation was issued by the ROC alleging that Respondent had violated A.R.S. §32-1154A (7), (11), (15) and (13), namely A.R.S. §32-1124 (B). FINDINGS OF FACT AND CONCLUSIONS OF LAW Findings of Fact: (1) In July, 2006, Complainant was hired by Respondent as a sales associate. In that capacity, Complainant’s responsibilities included obtaining new customers, negotiating and drafting sales contracts, drawing rough plans, obtaining permits, and handling payments and customer concerns in connection with the construction of new pools by Respondent in northern Arizona.

(2) Initially, Complainant was paid a salary, reimbursement for gas and a 3% commission on the sales price of any pools she sold on behalf of Respondent. (3) Sometime around the beginning of October, Respondent informed Complainant that it intended to end their employment relationship. After some discussion, it was agreed that Complainant would continue as a sales associate, but that her compensation would be changed to a straight 5% commission on the sales price of any pools sold by Complainant. According to Rex Wolterman, Respondent’s owner, Complainant was also informed that she would no longer receive a salary or compensation for the gas she used. (4) Between September 28, 2006, and November 13, 2006, Complainant obtained signed contracts to build four pools. Complainant testified that she earned a total commission of $1,690 on one of the sales, for which she had been paid $1,000; that she earned a total commission of $1,624.75 for another sale, for which she had been paid $500; and that she had earned a total commission of $1,544.75 for a third sale, for which she had been paid $500. Finally, Complainant testified that she was still owed commission in the total amount of $93.20 for the sale made on September 28, 2006. (5) In addition to the commissions, Complainant also testified that she was owed $356.52 for gas used to travel in connection with her employment. (6) With the exception of the pool for which she claimed to be owed $93.20, both parties agreed that Complainant was no longer working for Respondent at the time the other three pools were completed. Additionally, Rex Wolterman testified that Complainant was working on straight commission and was no longer being compensated for her gas expenses at a time she charged $356.52 for gas on Respondent’s account. That amount was later deducted from one of Complainant’s paychecks. (7) Rex Wolterman testified that Complainant did not receive the full commission on three of the sales because she left the company and did not complete the tasks required to earn the full commission – i.e. obtaining permits, handling payments and addressing customer concerns. He acknowledged that he did owe Complainant a total of $1,267.61 in unpaid commissions.

Conclusions of Law: Complainants have the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. A “preponderance of the evidence” is proof sufficient to persuade the fact finder that a proposition is more likely true than not. Alleged violation of A.R.S. §32-1154A (7): Violations of this statutory provision are classified as criminal offenses under A.R.S. §32-1164A (1). As such, they are outside the purview of this administrative proceeding. Alleged violation of A.R.S. §32-1154A (11): The ROC, through an administrative license proceeding, is not the appropriate forum to adjudicate good faith disputes regarding performance of a contract. In this case, Respondent claimed that Complainant had not earned the full commission for each of the sales because she did not see the jobs through to completion. The evidence was insufficient to establish that Respondent had a contractual obligation to pay Complainant more than the $1,267.61 that Respondent acknowledged was owed to Complainant. Respondent’s failure to pay Complainant the $1,267.61 owed in commissions was a violation of A.R.S. §32-1154A (11). Alleged violations of A.R.S. §32-1154A (15) and (13), namely A.R.S. §32-1124B: There was no evidence presented at the hearing regarding either of these allegations.

RECOMMENDED ORDER It is recommended that, beginning on the effective date of the Order in this case,[1] that Respondent’s Class B-05 license be suspended until Respondent has paid Complainant $1,267.61 owed in commissions. If Respondent pays the commission amount owed prior to the effective date of the Order, no suspension should take place and this matter should be closed. Done this day, August 15, 2007.

______________________________________ Michael K. Carroll Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Pursuant to A.R.S. §41-1092.08D, failure by the Registrar of Contractors to accept, reject or modify this Decision within 30 days of receipt by the agency will result in this Decision being certified by the Office of Administrative Hearings as the final administrative decision. In the event of certification of this Decision by the Office of Administrative Hearings, the effective date of the Order in this matter will be 40 days from the date of that certification.

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