ALJDEC decisions subject to certification as final

2010A-308476512-ROC · Registrar of Contractors · 2011-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 2, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondents appeared through their authorized representative, Kirk Munio. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made: FINDINGS OF FACT 1. AAA Apartment Restoration Inc is the holder of a Class B (No. 249586) License and a Class B-1 (No. 250288) issued by the Registrar of Contractors. 2. The hearings for these two matters were consolidated because both matters involved the same parties and the same witnesses. 3. There was no dispute that the Complainant is a former employee of AAA Apartment Restoration Inc. 4. After his employment was ended, the Complainant demanded that AAA Apartment Restoration Inc pay him for twenty seven (27) hours that the Complainant had allegedly worked and not been paid for and reimburse the Complainant for three hundred dollars ($300.00) that had been withheld from one of the Complainant’s paychecks. 5. When AAA Apartment Restoration Inc failed to comply with his demands, the Complainant filed formal complaints against both of AAA Apartment Restoration Inc’s licenses with the Registrar of Contractors. 6. The Complainant alleged that AAA Apartment Restoration Inc failed to pay him for twenty seven (27) hours of work that the Complainant had performed and that AAA Apartment Restoration Inc had improperly withheld three hundred dollars ($300.00) from one of his paychecks. 7. Both parties presented testimony and evidence regarding the two complaints. 8. Credible testimony and evidence established that the Complainant was previously an hourly employee of the AAA Apartment Restoration Inc and that he normally made fifteen dollars ($15.00) per hour. 9. Credible testimony and evidence established that the Complainant would keep written timesheets of his own hours worked and submit the written timesheets to AAA Apartment Restoration Inc. 10. AAA Apartment Restoration Inc would then pay the Complainant for the hours that the Complainant actually worked as shown on the time sheets. 11. Credible testimony and evidence established that AAA Apartment Restoration Inc fully paid the Complainant for all worked hours set forth in the Complainant’s time sheets that the Complainant delivered to AAA Apartment Restoration Inc. 12. The credible evidence of record is insufficient and fails to support a finding that AAA Apartment Restoration Inc failed to pay the Complainant for any hours that the Complainant worked for the AAA Apartment Restoration Inc. 13. There was no dispute that AAA Apartment Restoration Inc withheld three hundred dollars ($300.00) from one of the Complainant’s paychecks. 14. AAA Apartment Restoration Inc alleged that the Complainant damaged a bathroom that the Complainant was specifically informed not to use, and as a consequence thereof, AAA Apartment Restoration Inc was required to pay approximately fifteen hundred dollars ($1,500.00) to repair the damages to the bathroom allegedly caused by the Complainant. 15. AAA Apartment Restoration Inc asserted that the Complainant did not contest the monetary deduction at the time the money was actually deducted from the Complainant’s check. 16. The Complainant asserted that he did not use the bathroom and could not have caused the damage to the bathroom. 17. Credible testimony and evidence established that AAA Apartment Restoration Inc was required to pay fifteen hundred dollars ($1,500.00) to correct water damages to the bathroom at issue. 18. The credible testimony and evidence of record adequately demonstrated a dispute between the parties regarding what, if any, amount of the three hundred dollars ($300.00) at issue is due and owing to the Complainant from AAA Apartment Restoration Inc. 19. AAA Apartment Restoration Inc’s position in this monetary dispute over the disputed three hundred dollars ($300.00) is found under all of the circumstances to have been asserted in good faith and therefore, precludes a finding that a liquidated sum is owed to the Complainant. 20. The parties’ good faith money dispute can be resolved in a civil court of competent jurisdiction. 21. Undisputed evidence established that AAA Apartment Restoration Inc violated the charged provisions of A.R.S. § 32-1124 (B) (Proper display of license). 22. Credible testimony and evidence established that AAA Apartment Restoration Inc received a written warning regarding the undisputed violation of A.R.S. § 32-1124 (B) (Proper display of license) and that AAA Apartment Restoration Inc is now in compliance with the provisions of A.R.S. § 32-1124 (B). 23. Notice is taken of AAA Apartment Restoration Inc’s prior good license records with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that AAA Apartment Restoration Inc 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 AAA Apartment Restoration Inc violated the applicable charged sections of the state’s contracting laws. Therefore, the credible evidence of record did not sufficiently sustain a finding of violations by AAA Apartment Restoration Inc of the provisions of A.R.S. §32-1154 (A) (11), as charged in the Citations at issue. 5. Undisputed credible evidence of record established that AAA Apartment Restoration Inc violated the charged provisions of A.R.S. § 32-1154 (A) (13), namely A.R.S. § 32-1124 (B) (Display of license)

RECOMMENDED ORDERS 1. In view of the foregoing, it is recommended that ROC Case No. 2010- [number redacted]-ROC, together with the Complaint upon which it is based, be dismissed. 2. In view of the foregoing, it is recommended that ROC Case No. 2010- [number redacted]-ROC, together with the Complaint upon which it is based, be dismissed. 3. It is further recommended that AAA Apartment Restoration Inc be admonished that compliance with the terms of A.R.S. § 32-1124 (B) is mandatory and that any future violation may result in disciplinary action against AAA Apartment Restoration Inc’s Licenses. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification.

Done this day, March 10, 2011. /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