ALJDEC decisions subject to certification as final

2010A-308477677-ROC · Registrar of Contractors · 2011-05-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 17, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, Steve Robinson. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommendation are made: FINDINGS OF FACT 1. The Respondent’s Class KB-2 (No. 265002) License was voluntarily canceled on December 22, 2010. 2. There was no dispute that the Complainant was employed as a manager for the Respondent. 3. Undisputed credible testimony and evidence established that the Complainant was supposed to be paid the sum of twenty three dollars ($23.00) per hour for each hour that he provided labor services for the Respondent. 4. There was no credible evidence of any agreement regarding overtime or holiday pay. 5. Undisputed credible testimony and evidence established that the Respondent failed to pay the Complainant for the Complainant’s final one hundred and sixty eight (168) hours of work that he performed as an employee of the Respondent. 6. Undisputed credible testimony and evidence established that the Respondent owed the Complainant the sum of $3,864.00 for the one hundred and sixty eight (168) hours of unpaid labor. 7. The Complainant’s claim for reimbursement for alleged business expenses in the sum of $155.55 is found to be a claim for damages and should be resolved in a civil court of competent jurisdiction. 8. Undisputed credible testimony and evidence established that the sum of $3,864.00 is the proper balance due and owing to the Complainant from the Respondent for the Complainant’s one hundred and sixty eight (168) hours of unpaid labor that he provided for the Respondent. 9. There was no dispute that notwithstanding repeated attempts over a prolonged period of time that the said balance of $3,864.00 remains unpaid to the Complainant despite the fact that the Respondent does not dispute that it owes the money to the Complainant for the Complainant’s unpaid labor. 10. The Respondent‘s failure to pay the aforementioned sum of $3,864.00 to the Complainant for the Complainant’s labor is not found to be in good faith and accordingly, under all of the facts and circumstances presented herein the Respondent’s conduct is found to constitute a violation of the applicable charged provision of A.R.S. § 32-1154 (A) (11) (Failure to pay monies in excess of seven hundred fifty dollars ($750.00) when due). 11. Notice is taken of the Respondent prior license record with the Registrar of Contractors. 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. Undisputed credible testimony and evidence established that the Respondent violated the charged provisions of A.R.S. §32-1154 (A) (11) (Failure to pay monies in excess of seven hundred fifty dollars ($750.00) when due). RECOMMENDED ORDER In view of the foregoing, it is recommended that the Respondent’s License be revoked unless the Registrar of Contractors receives and accepts written proof that the Respondent has paid the sum of $3,864.00 to the Complainant for the Complainant’s unpaid labor. It is further recommended that if the Respondent pays the above described sum of money on or before the effective date of the Registrar’s Order then the aforementioned license revocation shall not take place and that this matter be closed. 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, May 31, 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