ALJDEC decisions subject to certification as final

09F-2776-ROC · Registrar of Contractors · 2009-10-09

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 10 and October 5, 2009 APPEARANCES: Complainant: Ray Oswaldo Madrid appeared at the September 10, 2009 hearing, pro per. Mr. Madrid failed to appear at the October 5, 2009 hearing. Respondent: John Vergopia, managing member, appeared, pro per. 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. These consolidated matters originally convened for hearing at the time, date and place set forth in the June 11, 2009 Notice of Hearing issued by the Registrar of Contractors (“ROC/Registrar”). The parties did not conclude the presentation of evidence at that time and the matter was set for further hearing on October 5, 2009 as set forth in this tribunal’s September 10, 2009 Order Re: Further Hearing Date. 2. Complainant Ray Oswaldo Madrid (“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 Licenses Nos. 245257, Class B-02 (General Small Commercial) and 239088, Class L07 (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. On November 10, 2008, Complainant filed a Complaint with the Registrar wherein he alleged non-payment of $4,531.00 for framing, hanging and taping (drywall) work performed at Fashion Square Mall in Scottsdale, Arizona (“premises/project”). 5. On April 21, 2009, the Registrar issued a Citation and Complaint in Case Nos. 09-2776, 09-2776W and 09-2776X charging Respondent with possible violations of A.R.S. § 32-1154 (A) (7) and (11). 6. Respondent filed an Answer on April 29, 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…[and]…the handwritten documents showing names and hours provided in the complaint by [Complainant] are not recognized as timesheets used by [Respondent].” (Emphasis in original.) 7. On August 19, 2009, the Registrar issued its Order Denying Request to Dismiss (“Order”) wherein it “determined that it erroneously cited License No. 233731. Such License should not have been cited, as it is a residential license, and the project at issue is a commercial project. As such, IT IS ORDERED that the Citation and Complaint as against License NO. 233731 shall be dismissed.” (Emphasis in original.) 8. At the hearing, Complainant testified on direct examination on September 10, 2009, and submitted Exhibits C-1, C-2, C-3, C-6 and C-10 which were marked, admitted and considered. Exhibits C-4, C-7 through C-9 and C-11 through C-14 were admitted over objection. Marcelo Vega (“Vega”) also testified on behalf of Complainant. 9. Complainant failed to appear at the further hearing on October 5, 2009, to be cross examined and present the remainder of his evidence. As a result of his non-appearance for cross examination, Complainant’s testimony and evidence presented at the initial hearing will be disregarded. 10. Joseph Kneen (“Kneen”), business office employee, testified on behalf of Respondent and but submitted no exhibits. 11. Kneen testified that the evidence relied upon by Complainant is not the payroll documentation utilized by Respondent and that Respondent’s payroll records do not indicate that Complainant was present on the project for the time periods in issue.

APPLICABLE LAW The Citation and Complaint issued by the Registrar in Case Nos. 09- 2776 and 09-2776W 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 $4,531.00, or any amount, for framing, hanging and/or taping (drywall) work performed on the project. Although Complainant appeared and testified on direct at the initial September 10, 2009, hearing, his failure to be present at the further hearing precluded Respondent from having an opportunity to proceed with cross examination and/or otherwise contest the evidence presented thereby and, therefore, must be disregarded. 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. 09-2776 and 09-2776W be dismissed.[1] Done this day, October 9, 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] 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