ALJDEC decisions subject to certification as final

09F-2773-ROC · Registrar of Contractors · 2009-10-06

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 22, 2009 APPEARANCES: Complainant: Jaime Gallardo appeared, pro per. Respondent: John Vergopia, managing director, appeared, pro per. Court Appointed Interpreter Gabriela Contreras was also present. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. This matter convened for hearing at the time, date and place set forth in the Notice of Hearing issued by the Registrar of Contractors (“ROC/Registrar”) on July 28, 2009. 2. Complainant Jaime Gallardo (“Complainant”) is an individual who asserts he was employed by Respondent and is entitled to compensation. 3. Respondent Best 1 Corporation (“Respondent”) is a corporation which holds Arizona Contractor’s License Nos. 245257, Class B-02 (General Small Commercial) and 239088, Class L-07 (Commercial Carpentry) issued by the ROC on May 22, 2008, and November 5, 2007, respectively. Jack Edward Delmar is a corporate officer and the qualifying party for both licenses. 4. Complainant filed a Complaint with the ROC on November 10, 2008, wherein he asserts he is owed $2,152.00 for framing and hanging drywall at Fiesta Mall, in Mesa, Arizona (“Fiesta”) and/or Fashion Square Mall in Scottsdale, Arizona (“Fashion”) (“premises/projects”) between approximately October 20 and November 4, 2008. 5. Complainant filed a request for hearing on January 20, 2009. 6. On April 28, 2009, the Registrar issued a Citation and Complaint in Case No. 09-2773 charging Respondent with possible violations of A.R.S. § 32-1154 (A) (7) and (11). 7. Respondent filed an Answer on May 6, 2009, wherein it asserted, inter alia, that Complainant “does not appear on any jobsite timesheet as work at a Best 1 Corp. project for the dates indicated on his complaint.” (Emphasis in original.) 8. On August 24, 2009, the Registrar issued its Order Denying Request to Dismiss and Notice of Amendment (“Order/Notice”) wherein it “determined that License No. 239088 issued to Best 1 Corp. should have also been named as an additional Respondent, and the Citation and Complaint and Notice of Hearing are amended to include License No. 239088.” 9. At the hearing, Complainant testified and submitted Exhibit C-4 which was marked, admitted and considered. Exhibits C-1, C-2, C-3 and C-5 were admitted over objection. Marcelo Vega (“Vega”) also testified on behalf of Complainant. 10. Joseph Kneen (“Kneen”), business office employee, testified on behalf of Respondent and submitted Exhibit R-1 which was marked, admitted and considered. 11. On the testimony and evidence of record, the following is found: a. From sometime prior to and up October 10, 2008, Complainant was employed and paid by Respondent (Exhibit C-5); b. Complainant was paid $16.00 per hour for work performed on behalf of Respondent at least for the period September 27 through October 10, 2008 (Exhibit C-5); c. A good faith factual dispute exists between the parties regarding whether Complainant was employed by Respondent on either project from October 18 through November 4, 2008. Complainant contends that he was hired by a Julio Rodriguez, Jr. (“Rodriguez”) on behalf of Respondent to work on the Fiesta Mall project on October 20 and 21, 2008. Complainant further asserted that he worked under the supervision of a Ray Madrid (“Madrid”) on behalf of Respondent at the Fashion Square location from October 22 through November 4, 2008. Complainant contends he is entitled to compensation in the amount of $2,152.00 (Exhibits C-1, C-2 and C-3) for such work. Conversely, Kneen testified that every employee of Respondent must be listed on a company timesheet and other payroll documentation in order to be paid. Kneen further asserted that the documentation relied upon by Complainant is not the payroll documentation utilized by Respondent and that Respondent’s payroll records (Exhibit R-1) do not indicate that Complainant was present on either project for the time periods in issue; and d. During cross examination, Kneen testified that he did not know who Madrid was.[1]

APPLICABLE LAW The Citation and Complaint issued by the Registrar in Case Nos. 09- 2773 and 09-2773W charged Respondent with possible violations of A.R.S. § 32-1154 (A) (7) and (11). Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

7. The doing of a wrongful act by the licensee as a contractor resulting in another person being substantially injured.

…

11. Failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with his operations as a contractor when he has the capacity to pay or, if he lacks the capacity to pay, when he has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154 (A). 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” 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 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). 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. It is determined and concluded that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154 (A) (11) by failing to remit payment to him in the amount of $2,152.00, or any amount, for framing and/or drywall work performed on either the Fiesta or Fashion projects. Although evidence established that Complainant had previously worked for Respondent even as late as October 10, 2008, there was insufficient evidence to establish Complainant’s employment during the period in question, i.e., October 18 through November 4, 2008. In addition, notwithstanding the questionable credibility of Kneen, Complainant failed to provide any evidence of the actual and/or apparent authority of either Madrid or Rodriguez to act on Respondent’s behalf to hire Complainant for the projects and/or period in question. 4. It is further determined and concluded that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. § 32-1154 (A) (7).

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that the Citation and Complaint in Case Nos. 09-2773 and 09-2773W be dismissed.[2] Done this day, October 6, 2009.

______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2009, to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] It must be noted that this tribunal questions the credibility of Mr. Kneen. Although disavowing any knowledge of or familiarity with Mr. Madrid, it need be pointed out that Mr. Kneen was present in a similar hearing on September 10, 2009 wherein Mr. Madrid was the complainant. [2] 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.

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