ALJDEC decisions subject to certification as final

09F-2779-ROC · Registrar of Contractors · 2009-07-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 7, 2009 at 1:30 p.m. APPEARANCES: Complainant Juan C. Valverde did not appear; Respondent Best 1 Corp. appeared through its employees, John Vergoprie and Joe Knern. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT On May 25, 2007, the Registrar of Contractors issued License No. ROC233731, Class B- for residential general contracting to Respondent Best 1 Corp., a corporation. On November 5, 2007, the Registrar issued License No. ROC239088, Class L-07 for commercial carpentry to Respondent. On May 22, 2008, the Registrar issued License No. ROC245257, Class B-02 for General Small Commercial Contracting to Respondent. Jack Edward Delmar is Respondent’s president and the qualifying party on all three licenses. On November 10, 2008, the Registrar received a complaint against Respondent’s License No. ROC 245257 from Complainant Juan C. Valverde. The

complaint alleged that Respondent had hired Complainant to perform metal stud framing and drywall hanging and taping work for Respondent at Fashion Square Mall at a rate of $13/hour, that Complainant had worked for Respondent 62½ hours in the week between October 18 and 24, 2008, 48 hours in the week between October 25 and 31, 2008, and 27½ hours in the week between November 1 and November 8, 2008, but that Respondent had not paid him anything. Complainant calculated his claim at $1,976.00, which was comprised of 107½ hours’ regular pay and 30 hours’ overtime. Complainant attached to his complaint copies of handwritten charts for “Horas Pendientes” for the weeks claimed, which showed his name among other individuals having Spanish surnames. Complainant provided his address as 3616 N. 66th Dr., Phoenix, Arizona 85033 on the complaint. The Registrar referred the complaint to Respondent for its immediate attention. On December 2, 2008, the Registrar received Complainant’s request for hearing. On December 22, 2008, the Registrar received Respondent’s initial response to Complainant’s complaint and the complaints of five other individuals who had Spanish surnames, some of whose names appeared on the time charts that Complainant had attached to his initial complaint. Respondent’s president stated that the persons who had filed complaints against Respondent’s license had been employed by Rodriguez and Sons Drywall, one of Respondent’s subcontractors. Respondent had paid Rodriguez and Sons Drywall. In addition, many of the persons who had filed complaints were undocumented immigrants, who did not have a legal right to work in Arizona. Respondent’s president finally stated that it was sending letters to each person who had filed a complaint, inviting them to Respondent’s office on December 29, 2008 “where we will listen to the complaints and help if we can.” Respondent’s president attached to his response to the Registrar copies of letters to each person who had made a complaint, which invited them to Respondent’s office to resolve their complaints and informed them that, “[i]n order to help, you MUST bring with you the following: Valid Arizona Driver’s License; your Social Security Card; Greed Card; and, your Work Authorization Card to be in Arizona and the United States.” On January 2, 2009, the Registrar received Respondent’s motion to dismiss Complainant’s claim because he did not appear at the December 29, 2008 meeting to which Respondent had invited him. On April 2, 2009, the Registrar denied Respondent’s motion to dismiss because “it appears that there exist[] ‘good faith’ disputes over the alleged failure to pay wages.” On April 21, 2009, the Registrar issued a Citation and Complaint against Respondent’s three licenses, charging violations of A.R.S. § 32-1154(A)(7) and (11). On April 29, 2009, the Registrar received Mr. Delmar’s written answer on behalf of Respondent, which denied any statutory violation and affirmatively alleged that Complainant did not appear on any of Respondent’s timesheets for the dates that he claimed to have worked for Respondent. Mr. Delmar attached to his response copies of forms entitled “Best 1 Corp Timesheet” for the weeks Complainant claimed to have been employed by Respondent, which contained handwritten entries of employees’ names but did not include Complainant’s. The Registrar referred this matter to the Office of Administrative Hearings, an independent state agency, for the scheduling of a fair hearing. On May 27, 2009, the Registrar issued a Notice of Hearing, setting a hearing on July 7, 2009 at 1:30 p.m. at the Office of Administrative Hearings. The Registrar mailed a copy of the Notice of Hearing to Complainant at 3616 N. 66th Drive, Phoenix, AZ 85033. On June 24, 2009, Respondent moved to continue the hearing because one of its key witnesses would be unavailable for the hearing. On June 24, 2009, the Administrative Law Judge denied Respondent’s motion to continue under A.A.C. R2-19-110. The Office of Administrative Hearings mailed a copy of the Administrative Law Judge’s order to Complainant at 3616 N. 66th Drive, Phoenix, AZ 85033. The United States Postal Service did not return the copy of the order as undeliverable to the Office of Administrative Hearings. Complainant never provided another address to the Registrar or to the Office of Administrative Hearings. Respondent’s representatives appeared for the duly noticed hearing on July 7, 2007. Although the Administrative Law Judge delayed the beginning of the hearing fifteen minutes to allow Complainant additional travel time, he neither appeared, personally or through an attorney, contacted the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, nor presented any evidence to establish his complaint against Respondent. CONCLUSIONS OF LAW The dispute lies within the Registrar’s jurisdiction to resolve.[1] The notice of the hearing that the Registrar mailed to Complainant at the address he provided on his complaint was reasonable and it is deemed to have received it.[2] Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence.[3] Complainant’s failure to appear at the duly noticed hearing or to offer any evidence to support its claim precludes any finding of a statutory violation against Respondent. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar dismiss Case Nos. 09-2779, 09-2779W, and 09-2779X against Respondent Best 1 Corp.’s License Nos. 245257, Class B-02; 239088, Class L-07; and 233731, Class B-. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, July 7, 2009.

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

By _________________________ ----------------------- [1] See A.R.S. § 32-1101 et seq. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

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