ALJDEC decisions subject to certification as final

2009A-8331373-ROC · Registrar of Contractors · 2010-09-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 30, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, David Saylor. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent is the holder License No. C-21.201553-R issued by the Registrar of Contractors. 2. Credible testimony and evidence established that the parties entered into an oral agreement wherein the Respondent agreed to sell landscaping maintenance agreements to the Complainant. 3. Credible testimony and evidence established that pursuant to the terms of the oral agreement the Complainant performed maintenance work, both as a supervisor of the Respondent’s employees and as a laborer, on various landscaping maintenance projects for the Respondent during the months of April, May and June 2008. 4. Credible testimony and evidence established that the Respondent then informed the Complainant that due to problems with the Respondent’s ongoing divorce action the Respondent could not sell the maintenance agreements to the Complainant. 5. The Complainant then demanded that the Respondent pay him for his business expenses and for his labor that he performed for the Respondent during the months of April, May and June 2008. 6. When the Respondent refused to pay him for his labor, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 7. The Respondent asserted that the Complainant was never an employee and that the Complainant had performed no work as a subcontractor for the Respondent. 8. The Respondent asserted that the Complainant had performed construction work as a laborer and supervisor on a voluntary basis and that no payment was due to the Complainant for his labor. 9. Credible testimony and evidence established that when the Respondent informed the Complainant that the Respondent was not going to sell the maintenance agreements, the Complainant gave the Respondent the option of either paying the Complainant’s business expenses in the sum of $1,900.00 and then paying the Complainant $15.00 per hour for the hours that the Complainant worked for the Respondent, or paying the Complainant $25.00 per hour for the hours that the Complainant worked and the Complainant would then pay his own business expenses. 10. Credible testimony and evidence established that the Respondent has paid the Complainant a total of $1,900.00 for the Complainant’s business expenses. 11. Credible testimony and evidence established that the Complainant worked a total of sixty (60) hours for the Respondent during the month of April 2008. 12. Credible testimony and evidence established that the Complainant worked a total of one hundred and fourteen (114) hours for the Respondent during the month of May 2008. 13. Credible testimony and evidence established that the Complainant worked a total of sixty seven (67) hours for the Respondent during the month of June 2008. 14. There was no dispute that the Complainant obtained $712.00 from the Respondent for a portion of his wages and that this sum of money should be deducted from the total amount that is found to be due to the Complainant for the Complainant’s unpaid wages. 15. Credible testimony and evidence established that the total sum $2,903.00 (241 hours at $15.00 per hour, less $712.00) is the proper balance due and owing to the Complainant for the Complainant’s unpaid wages. 16. Credible testimony and evidence established that, notwithstanding repeated attempts and billings over a prolonged period of time, said balance of $2,903.00 remains unpaid and is still due and owing to the Complainant from the Respondent for the Complainant’s unpaid wages. 17. The Respondent‘s failure to pay the aforementioned sum of $2,903.00 to the Complainant for the Complainant’s unpaid wages is not found to be in good faith and accordingly, under all of the facts and circumstances presented herein, the Respondent’s conduct is found to constitute a violation of the applicable charged provisions of A.R.S. § 32(1154A (11). 18. Notice is taken of the Respondent’s good past license record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. Credible testimony and evidence supported findings that establish that the Respondent violated the charged provisions of A.R.S. §32-1154A (11) (Failure to pay monies in excess of $750.00 when due). RECOMMENDED ORDER In view of the foregoing, it is recommended, commencing on the effective date of the Registrar of Contractors’ Order, that License No. C- 21.201553-R of Respondent B M S Landscape and Sprinkler Specialists LLC (LLC) be actively suspended until the Registrar of Contractors receives and accepts written proof that the Respondent has paid the sum of $2,903.00 to the Complainant for the Complainant’s unpaid wages. It is further recommended that if the Respondent pays the above described sum of money on or before the effective date of the Registrar’s Order, then the aforementioned indefinite active license suspension shall not take place and that this matter be closed. In the event of certification of this 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 the certification. Done this day, September 3, 2010.

/s/ M. Douglas 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