ALJDEC decisions subject to certification as final

09F-2775-ROC · Registrar of Contractors · 2009-10-13

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 30, 2009

APPEARANCES: Complainant appeared on his own behalf,[1] and was assisted by Spanish-language Interpreter Sylvia Gallegos; Respondent was represented by its Managing Director John Vergopia and Joe Kneen, Business Office.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action to force Respondent Best 1 Corp to pay remaining wages that he claims are due for labor as a worker for Respondent. Respondent denies that any wages are due Complainant. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision recommending dismissal of the complaint. FINDINGS OF FACT 1. Respondent is the holder of a class B-02 general small commercial contractor license (No. 245257) issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general small commercial construction, except for certain specialty contracting such as electrical, plumbing, swimming pools, etc.[2] Respondent is also the holder of a class B- general residential contractor license (No. 233731). That license authorizes Respondent to perform residential construction. 2. Complainant came to the hearing and signed in as “Isabel Garcia.” He then presented himself to the tribunal as “Isabel Garcia” and was sworn in under that name. About 45 minutes into the hearing, Complainant stated that his name was Gabriel Hernandez and that his wife’s name was Isabel Garcia Gonzalez. He stated that he worked under his wife’s name because she had the bank account in her name. 3. Immediately thereafter, Respondent moved for dismissal. This tribunal granted Respondent’s motion because Complainant had not worked under his own name and presented to this tribunal under a name not his own. Complainant has no credibility with this tribunal. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[5] Complainant has not met that burden. 2. This matter should be dismissed.

. . .

RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that the Citation and Complaint against Respondent Best 1 Corp. in case 09-2775 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 will be 40 days from the date of that certification.

Done this 13th day of October 2009.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

Copy mailed this ___ day of October 2009 to:

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

By ___________________________ ----------------------- [1] See Finding of Fact 2 below. [2] See, Arizona Revised Statutes (“A.R.S.”) § 32-1102 and Arizona Administrative Code (“A.A.C.”) R4-9-102 for a description of commercial license classifications. [3] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] See Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996) (moving party bears burden of proof by preponderance of evidence in an administrative hearing).

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