ALJDEC decisions subject to certification as final

2010A-308471775-ROC · Registrar of Contractors · 2010-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 8, 2010 at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Ernesto Rodriguez. 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 of a Class K-5 (No. 180569) License issued by the Registrar of Contractors. 2. The Complainant is the office manager of a dental office in Tucson Arizona. 3. There was no dispute that on November 11, 2009, one of the Respondent’s employees, identified as Ray Leon, brought a friend of his into the Complainant’s dental office and requested that the Complainant provide dental services for the friend. 4. Credible testimony and evidence established that Ray Leon (”Mr. Leon”) informed the Complainant that he would be personally responsible for the payment of the cost of performing the requested dental services for Mr. Leon’s friend. 5. The Complainant’s dental office then performed a dental examination for Mr. Leon’s friend and advised Mr. Leon of the expected cost of the required dental work. 6. Credible testimony and evidence established that Mr. Leon then passed out the Respondent’s business cards and stated that he was the owner of Old El Dorado Stone Inc., and proposed a barter agreement wherein he would perform construction work for the Complainant in exchange for the performance of the dental work for Mr. Leon’s friend. 7. The Complainant and Mr. Leon then entered into negotiations as to exactly what services Mr. Leon would provide in exchange for the needed dental work. 8. The negotiation process was completed, and the Complainant and Mr. Leon entered into an oral agreement wherein the Complainant agreed to perform $1,872.00 worth of dental work on Mr. Leon’s friend and Mr. Leon agreed to provide various construction services for the Complainant in exchange for the performance of the agreed upon dental work. 9. The Complainant’s dental office then completed $1,872.00 worth of dental work on Mr. Leon’s friend. 10. Once the dental work was completed, the Complainant repeatedly attempted to contact Mr. Leon to obtain performance of the agreed upon construction work. 11. Credible testimony and evidence established that Mr. Leon would rarely answer the telephone, and when he did answer the telephone, he would indicate that he was too busy to talk and that he would get back to the Complainant. 12. Credible testimony and evidence established that Mr. Leon never called the Complainant back and that Mr. Leon then actively avoided the Complainant’s telephone calls. 13. When Mr. Leon denied the existence of an oral agreement with the Complainant to perform construction work in exchange for the completed dental work on Mr. Leon’s friend, as well as any personal responsibility for paying the sum of $1,872.00 for his friend’s completed dental work, the Complainant filed a formal complaint against the Respondent with the Registrar of Contractors. 14. The Respondent did not dispute that Mr. Leon is employed as a salesman by the Respondent. 15. Credible testimony and evidence established that the business card that was presented to the Complainant by Mr. Leon does not identify him as an owner or manager of Old El Dorado Stone Inc. 16. Credible testimony and evidence established that the Complainant’s communications with the Respondent were always directly with Mr. Leon. 17. Credible testimony and evidence established that Mr. Leon does not have an ownership interest in the Old El Dorado Stone Inc. 18. Credible testimony and evidence established that Mr. Leon does not have authority from the Respondent to enter into barter relationships with prospective clients. 19. Credible testimony and evidence established that Mr. Leon does not have authority from the Respondent to enter into oral contracts with prospective clients. 20. Credible testimony and evidence established that the Respondent was unaware that Mr. Leon had represented himself as the owner of the Respondent. 21. Credible testimony and evidence established that the Respondent was unaware of the oral agreement between the Complainant and Mr. Leon for the performance of construction work in exchange for the performance of dental work for Mr. Leon’s friend until the Complainant filed a complaint with the Registrar of Contractors. 22. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent is responsible for the performance of the construction work required by an oral agreement that was entered into by the Complainant and one of the Respondent’s employees without the Respondent’s knowledge or consent. 23. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent, Old Eldorado Stone Inc., entered into any type of agreement with the Complainant for the performance of construction work in exchange for the performance of dental work for Mr. Leon’s friend. 24. The credible evidence of record is insufficient and fails to support a finding that the Respondent is responsible for paying for the dental work that was performed on Mr. Leon’s friend pursuant to Mr. Leon’s oral agreement with the Complainant. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it 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, 654 (9th Cir. BAP (Ariz.) 1994). 3. Proof by preponderance of the evidence “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). 4. The Complainant failed to sustain his burden of proof to establish that the Respondent violated the applicable charged sections of the state’s contracting laws. Therefore, the evidence of record does not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation. RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. 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, December 10, 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