ALJDEC decisions subject to certification as final

2010A-308477180-ROC · Registrar of Contractors · 2011-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 22, 2011, at 1:00 p.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its attorney, John A. Buric. 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 B-6 (No. 090925) License issued by the Registrar of Contractors. 2. There was no dispute that the Complainant was previously employed as a salesperson by the Respondent. 3. Credible testimony and evidence established that the Complainant was to be paid both a monthly salary and agreed upon commissions for the construction projects that he was able to obtain for the Respondent. 4. On November 18, 2010, the Complainant filed a complaint against the Respondent with the Registrar of Contractors alleging that the Respondent had failed to pay the Complainant the sum of $9,866.46 allegedly due to the Complainant for commissions for construction projects that the Complainant obtained for the Respondent. 5. The Respondent answered that the Respondent was entitled to various monetary offsets as a result of the Complainant’s failure to properly bid various construction projects and asserted that the Complainant had referred jobs to a rival contractor while the Complainant was working for the Respondent. 6. Credible testimony and evidence established that the Complainant was employed as a salesperson by the Respondent and as a salesperson for a rival construction company for approximately two months. 7. Credible testimony and evidence established that the Respondent was unaware that the Complainant was working as a salesperson for a rival construction company while he was working as a salesperson for the Respondent until August 17, 2010. 8. Credible testimony and evidence established that the Respondent terminated the Complainant as an employee on August 17, 2010. 9. Credible testimony and evidence established that the Complainant was fully paid his agreed upon salary during his employment with the Respondent and that the only matter in dispute between the parties relates to the payment of commissions that the Complainant alleges are due and owing to him. 10. Credible testimony and evidence established that the Respondent was entitled to offset costs against commissions if the Complainant underbid construction projects for the Respondent. 11. Credible testimony and evidence established that the Complainant underbid some of the construction projects at issue. 12. Credible testimony and evidence adequately demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent. 13. The Respondent’s position in this monetary dispute 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 in this matter. 14. The parties can resolve their good faith monetary dispute in a civil court of competent jurisdiction. 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. A.R.S. § 32-1154 (A) (11) provides as follows: Failure by a licensee or agent or official of a licensee to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee's operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased. 5. The Complainant failed to sustain the requisite burden of proving the existence of a valid liquidated debt properly due and owing by the Respondent, and thus the credible testimony and evidence of record did not sufficiently sustain a finding of a violation by the Respondent of the charged provisions of A.R.S. §32-1154 (A) (11). RECOMMENDED ORDER In view of the foregoing, it is recommended that this Citation, together with the Complaint upon which it is based, 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, August 2, 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