ALJDEC decisions subject to certification as final

2010A-308475829-ROC · Registrar of Contractors · 2011-04-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 13, 2011

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by President and Qualifying Party James Cordeiro.

WITNESSES: Donald Scinta James Cordeiro

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming that he is owed $1,600.00 from Respondent for services Complainant performed when Respondent hired him as a laborer to work on two projects. Respondent admits the employment contract but denies owing Complainant more than $300.00. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Complainant’s Exhibit A. 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-34.227550-D, a dual specialty contracting license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to perform preparation of surfaces and painting of surfaces for both residential and commercial properties. The Qualifying Party for the license is James Cordeiro.[1] 2. The parties agree that Complainant was hired by Respondent to provide labor on two jobs in September 2010. The agreement was a verbal agreement and the parties differ in their understanding of the terms of the agreement. Complainant testified that he was hired at $20.00 per hour and worked for 40 hours on each job. He has no documentation to corroborate his testimony. He admits that Respondent paid a cell phone bill in return for services from Complainant, but testified that this was a separate transaction from the labor agreement. 3. Respondent admits that there was an employment agreement between the parties, but claims different terms. Mr. Cordeiro testified that he loaned Complainant six hundred dollars in cash just before the two projects. He testified that Complainant was working for Respondent to pay back the loan at $10.00 an hour. He denies that Complainant worked 80 hours, but he did not keep documentation of the hours. He admits that he may owe Complainant up to $300.00 for the work Complainant did. 4. Complainant submitted a statement signed by “Don Goodwin” regarding one of the jobs Complainant worked on for Respondent, entered as Exhibit A. The statement says that Don Goodwin was a supervisor on one of the jobs that Complainant worked. However, this tribunal does not give Exhibit A much weight because Complainant admitted that he wrote the statement and had Mr. Goodwin sign it. Complainant signed it as well. The statement was written on April 2, 2011 and signed by Mr. Goodwin on April 13, 2011, relating to events that occurred in September 2010. Furthermore, Mr. Goodwin was not present at the hearing to explain the statement and the statement was not given under oath. 5. The evidence shows a good faith dispute between parties, based on the verbal agreement for labor.

CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] 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.[4] 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 $750.00 is due and owing from Respondent. 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 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 Lasaka Painting, Inc. 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, April 29, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Hereinafter, “Respondent” will refer to both the entity and Mr. Cordeiro as he is the sole person on the license. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] 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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