ALJDEC decisions subject to certification as final

2010A-308473438-ROC · Registrar of Contractors · 2011-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 20, 2011

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by attorney Allyson Del Vecchio, Tarascio & Del Vecchio, PLLC, accompanied by Managing Member and Qualifying Party Rick Cleasby and Member Kristi Love-Cleasby.

WITNESSES: Isidro “Abe” Gloria Rick Cleasby Kristi Love-Cleasby

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming that he is owed $25,000.00 in wages and expenses from Respondent for services Complainant performed as a laborer for Respondent’s contracting business. Respondent admits the employment contract and that he owes Complainant $2,103.77 for reimbursable expenses and one week’s wages. Respondent asserts that he has tried to pay Complainant but Complainant has refused to accept payment for less than the amount he claims is owed. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Complainant’s Exhibits 1 though and Respondent’s Exhibits A through K. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding no violation of contractor licensing laws. FINDINGS OF FACT 1. Respondent is the holder of license K-8.188553-D, a dual specialty contracting license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to install and repair floor coverings for both residential and commercial properties. The Qualifying Party for the license is Rick Cleasby. 2. The parties agree that Complainant worked as a full-time laborer for Respondent from 2007 through January 2010 under a verbal employment contract. His last day of work was February 6, 2010. They agree that Respondent provided a truck for Complainant to use primarily for work but also for personal transportation. They also agree that Complainant was to be paid gross wages of $1,200.00 per week. They disagree as to what expenses were to be reimbursed by Respondent. 3. Complainant testified that the agreement provided that Respondent would reimburse him for gasoline for the truck, his telephone bills, and other expenses that included materials and tools used for work. The bulk of Complainant’s claim is that Respondent owes him for gasoline expenses from the period of June 2007 through January 2010 in the amount of $15,000.00. He also claims that Respondent owes him $3,600.00 for telephone expenses incurred from June 2007 through January 2010. He claims other expenses for that period as well.. In support of his claim for these reimbursable expenses, Complainant provided a large amount of documentation consisting of bank statements that include debit/credit transactions and copies of receipts.[1] 4. Complainant also claims that Respondent owes him wages for his last week of work. Respondent agrees. At the time that Complainant was let go, Rick Cleasby told Complainant that he could keep the truck for a few weeks and he would be paid his final week’s wages upon return of the vehicle. The evidence shows that Complainant kept the truck until June 2010 before returning it to Respondent. 5. Rick and Kristi Cleasby testified that Respondent was to reimburse Complainant only for materials and tools used in the flooring work that Complainant was doing. They testified that Complainant submitted receipts after he was let go that show he is entitled to reimbursement of $903.77 for those expenses. Combined with the wages that Respondent agrees are owed to Complainant for his final week of employment, Respondent admits that it owes Complainant $2,103.77. The Cleasby’s deny that there was ever an agreement to pay Complainant for gasoline or telephone expenses. For travel expenses when Complainant had to travel out of town for the business, the evidence shows that Respondent paid Complainant $100.00 per day for travel expenses.[2] 6. Rick Cleasby testified that he was ready and willing to pay Complainant the wages for the last week of work as soon as Complainant returned the truck. Evidence submitted by Respondent shows that Respondent wrote a check to Complainant in early June 2010, just after the truck was returned, in the amount of $1,738.16,[3] which included the final week’s wages and expenses that had been proven at that time. Complainant refused that check. 7. The evidence shows that Respondent attempted to pay what Respondent believes it owes to Complainant, but that Complainant refused the payment. Respondent has reviewed the receipts and other documentation provided by Complainant and made a good faith attempt to determine whether they show reimbursable expenses that have not been paid to Complainant.[4] 8. The evidence shows, at best, a good faith contractual dispute between parties.

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 not met that burden. 2. Per the Citation and Complaint, this case focuses on the “no pay’ provision found in Arizona Revised Statutes (A.R.S.) § 32-1154(A)(11) that prohibits the failure of a licensee to pay monies in excess of $750 “when due for materials or services” rendered in connection with a licensee’s operations when the licensee has the capacity to pay or when the licensee has been paid for the project. 3. The evidence shows only a good faith contractual dispute between the parties that does not warrant finding a violation of the no pay provision. This tribunal cannot find that more than the amount Respondent admits is owed to Complainant, nor that Respondent has failed to pay the amount that Respondent admits it owes Complainant. The Registrar of Contractors, acting through an administrative disciplinary hearing, is not empowered by law to adjudicate amounts alleged to be due and owing in the face of a good faith contractual dispute on such amounts. Until and unless any claimed obligation is reduced to judgment by a civil court of competent jurisdiction, no violation by Respondent of the no pay provision can be supported. 4. This matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that the Citation and Complaint against Respondent Griffin Floor Covering, LLC in case 2010- [number redacted] 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 day, June 8, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibits 1 through 20. The Administrative Law Judge has reviewed Complainant’s Exhibits and has noticed some duplication (i.e., Exhibit 1 is the same as Exhibit 3, Exhibit 7 duplicates part of Exhibit 6, etc.). [2] Exhibit A [3] Exhibit D. [4] Exhibit K. [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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