ALJDEC decisions subject to certification as final

09F-2777-ROC · Registrar of Contractors · 2009-09-22

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 1, 2009

APPEARANCES: Complainant appeared on his own behalf, and was assisted by Spanish-language Interpreter Gabriela Contreras; Respondent was represented by its Vice President Joe Kneen and Managing Director John Vergopia.

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, including testimony from Complainant, Jaime Gallardo, Joe Kneen, and John Vergopia. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding that Respondent has withheld money due Complainant. 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.[1] Respondent is also the holder of a class L-07 specialty commercial carpentry contractor license (No. 239088). That license authorizes Respondent to perform carpentry work for commercial construction.[2] 2. Complainant is a construction worker. He claims that he worked on projects for Respondent from October 18, 2008 through November 5, 2008. He testified that his supervisors when he worked on projects for Respondent during that period were “Jimmy” (last name unknown),[3] Ray Madrid, and Julio Rodriguez. He testified that he worked on a cafeteria project, a Best Buy, and a project in Scottsdale that was a Cartier jewelry store. During the almost three weeks for which he claims wages in this action, he testified that his foreman was Ray Madrid and the two projects were the cafeteria job and Cartier job. He testified that he was not paid wages for that period (which includes regular and overtime hours) for a total of $2,883.75. 3. The record contains a letter dated November 6, 2008, from Joe Kneen as Vice President for Respondent to Ray Madrid. The letter states that Respondent will pay Ray Madrid for labor “at the Cartier job” from October 18 through November 7, 2008, but that he might not be paid until November 14, 2008. 4. The record also contains lists, both handwritten and typewritten, showing employees for the Cartier job. These lists were submitted by Complainant and are not labeled or otherwise identified as belonging to Respondent, but do contain the names of Complainant, Ray Madrid, and Jaime Gallardo, one of Complainant’s witnesses who corroborated Complainant’s testimony. The lists also show hours worked for the dates at issue here and rates of pay for the workers listed. These lists are consistent with Complainant’s testimony as to the dates worked, hours worked, and people on the job. As such, they support Complainant’s testimony, although they are not entitled to a great amount of weight. 5. Respondent’s position, supported by testimony from Joe Kneen and John Vergopia, is that there is not a signed timesheet from a supervisor for the hours Complainant is claiming that he worked. Mr. Kneen confirmed that Complainant had worked for Respondent as a worker up to October 17, 2008 and had been paid by Respondent for those hours. He also presented examples of Respondent’s timesheets, which show Respondent’s name at the top of the form and are signed by a foreman. Mr. Kneen testified that Respondent would pay Complainant if an appropriate timesheet existed. 6. Mr. Kneen testified that Julio Rodriguez was the foreman for the Cartier job. He did not present any time sheets that were turned in for the Cartier job by Julio Rodriguez.[4] Thus, Respondent presented nothing that showed that Complainant was not a worker on the Cartier job or that Complainant did not work on the Cartier job. 7. Complainant credibly testified in support of his claim. 8. The evidence establishes that Complainant was a worker for Respondent and not some other contractor. It also establishes that Ray Madrid was a worker for Respondent during the same time as Complainant and that Respondent acknowledged that it owed Ray Madrid for wages for that period. It appears that Complainant’s foreman did not turn in a timesheet as he was supposed to, but this is not Complainant’s fault and Complainant should not be penalized for the foreman’s failure. 9. The evidence supports Complainant’s claim. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[5] Further, the standard of proof at hearing is by preponderance of the evidence.[6] 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.[7] Complainant has met that burden. 2. The evidence shows that $2,883.75 is due and owing by Respondent to Complainant for wages. This is a violation of Arizona Revised Statutes (“A.R.S.”) § 32-1154(A)(11) for failure to pay more than $750.00 when due for services rendered in connection with Respondent’s operation as a contractor. This conclusion is based on the following findings. 3. The letter from Respondent to Ray Madrid shows that Respondent acknowledges payment for labor “at the Cartier job” and to Ray Madrid for the same time frame. Complainant has shown by a preponderance of evidence that he worked for Respondent and with Ray Madrid during the same time. Respondent has not shown that there is any material difference between Ray Madrid and Complainant as employees. Therefore, Complainant has shown entitlement to wages in the amount that his documents substantiate. 4. Respondent owes Complainant for wages in the amount of $2,883.75.

. . .

RECOMMENDED ORDER IT IS RECOMMENDED that Class B-02 license 245257 and Class L-07 license 239088, both held by Respondent Best 1 Corp., be suspended beginning the effective date of the Registrar’s Order until Respondent provides written proof of payment of $2,883.75 to Complainant and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent makes full payment on or before the effective date of the Registrar’s Order, and the Registrar accepts proof of payment, the license suspension shall not take place.

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 22nd day of September 2009.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

Copy mailed this ___ day of September 2009 to:

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

By ___________________________ ----------------------- [1] 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. [2] Id. [3] This is likely Jim Fink, one of foremen shown on Respondent’s documentation. [4] In fact, Mr. Kneen testified that neither Jim Fink nor Julio Rodriguez turned in time sheets for the Cartier project (9/1/09 Hearing Record at 1:00), even though they were the foremen on the job, according to Respondent, and were responsible for signing time sheets and turning them in. The record does contain one time sheet on Respondent’s form that is signed by Jim Fink and shows some hours for work that was done on the Cartier project by three workers for the week of October 25-31, 2008. There is no evidence that this is the complete record for the hours of the work done at the Cartier job. [5] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [6] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [7] 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