ALJDEC decisions subject to certification as final

09F-S0233-ROC · Registrar of Contractors · 2010-02-12

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 29, 2010

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by Office Manager Tammy Linden and Qualifying Party Kerry Feldman.

WITNESSES: None

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action making several different claims as described below, the main claim being that he is owed money from Respondent. Respondent denies the allegations. The hearing commenced with an opening statement by Complainant in which Complainant was asked to clarify the bases for his claims. Complainant is a former employee of Respondent and his claims are based on that relationship. The Citation and Complaint issued by the Registrar of Contractors (“ROC”) designates three possible violations based on A.R.S. § 32-1154(A): subsection (A)(4), failure to comply with social security, workers’ compensation, or unemployment insurance law; subsection (A)(7), doing a wrongful or fraudulent act that substantially harms another; and subsection (A)(11), failure of a licensee to pay monies in excess of $750 when due for materials or services provided in connection with construction activities. Complainant clarified what he was claiming under each of those provisions. With regard to subsection (A)(4), Complainant claims that Respondent did not comply with unemployment insurance law. Complainant and Respondent have been in a dispute before the Arizona Department of Economic Security (“ADES”) concerning unemployment benefits that Complainant received, and Respondent prevailed in that case. Complainant clarified that he did not have a ruling from ADES stating that Respondent had not complied with unemployment insurance law. Based on that, this tribunal dismissed that claim without prejudice. This tribunal ruled that ADES regulates unemployment insurance and has primary jurisdiction to determine whether state unemployment insurance laws have been complied with. A claim that unemployment insurance laws have been violated must be taken to ADES in the first instance. If ADES finds a violation, an action against a contractor’s license can then be brought to the ROC. With regard to subsection (A)(7), Complainant stated that he was claiming a wrongful act in that his medical insurance was not maintained after he left employment. He admitted, however, that he suffered no harm because of it. Therefore, he did not have evidence to support a claim of substantial injury, one of the necessary elements of an (A)(7) claim. That claim was then dismissed for failure to state a claim. Finally, regarding subsection (A)(11), Complainant identified a claim for $750 for lost wages. He also claims that Respondent owes him for $6,300 of unemployment benefits he received from ADES and now has to pay back to ADES because he lost the unemployment case. However, this tribunal ruled that the $6,300 claim does not meet the requirements of (A)(11) because it is not for materials or services in connection with the contracting business. Complainant also identified a claim for damages against Respondent based on the use of his name on the license. That claim was also ruled to be outside the scope of (A)(11). Therefore, the only claim within the scope of (A)(11) is for $750 for wages. However, this amount does not meet the minimum requirement stated in (A)(11), which must be more than $750. Therefore, it too is dismissed. There being no claim left that is within the jurisdiction of the ROC, the following recommended order of dismissal is made. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint S09-0233 against Respondent Bisbee Glass, LLC 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 12th day of February 2010.

Office of Administrative Hearings

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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