ALJDEC decisions subject to certification as final

2011A-1186-ROC · Registrar of Contractors · 2011-10-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 19, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Terry D. Wien. Respondent Azteca Electrical Construction inc. (Corp.) appeared through its authorized representative, Carols V. Yado. Respondent Pillar Builders, Inc. appeared through its attorney, Fidelis V. Garcia. 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. Respondent Azteca Electrical Construction, Inc., (“Azteca” herein) is the holder of a Class L-11 (No. 096205) License issued by the Registrar of Contractors. 2. Respondent Pillar Builders, Inc., (“Pillar Builders” herein) is the holder of a Class B-1 (No. 224168) License issued by the Registrar of Contractors. 3. These matters are commercial matters wherein the Complainant furnished temporary electrical workers to perform electrical work on a commercial construction project identified as the Walmart construction project located at Charleston Crossing, 480 N. Highway 90, Sierra Vista, Arizona. 4. The Complainant furnished temporary electrical workers to perform electrical work at the above Walmart construction project for eleven (11) weeks and submitted its invoice for the temporary labor to both of the named Respondents. 5. When both of the Respondents indicated that they were not responsible for the Complainant’s invoices, the Complainant filed formal complaints against both of the named Respondents with the Registrar of Contractors. 6. The matters were consolidated for hearing since both matters involved the same Complainant, the same work location, and identical complaints. 7. There was no dispute that Respondent Pillar was the general contractor for all of the construction work performed at the Walmart construction project at issue. 8. Credible testimony and evidence established that Respondent Azteca was the electrical subcontractor for all of the electrical work performed at the Walmart construction project at issue. 9. There was no dispute that the Complainant did not have a written construction agreement with either of the Respondents. 10. Credible testimony and evidence established that the Complainant’s usual requirement for providing temporary construction workers to construction sites does not require the use of written contracts. Instead, such requests are made on the telephone, and the Complainant then sends temporary workers to perform the requested construction work at the construction site specified in the telephonic request. 11. Credible testimony and evidence established that the Complainant did provide several temporary electrical workers and that the construction workers performed electrical work for approximately twelve weeks at the Walmart construction site. 12. Credible testimony and evidence established that the hourly wages owed to the Complainant for the electrical work performed by the Complainant’s temporary workers is the total sum of $9,712.49. 13. There was no credible evidence that Respondent Pillar Builders had any involvement in contacting the Complainant and asking for temporary electrical workers to assist in performing electrical work at the Walmart construction site. 14. There was no credible evidence that Respondent Pillar Builders had, or should have had, any knowledge that the Complainant’s temporary electrical workers were performing electrical work at the construction site. 15. Credible testimony and evidence established that Respondent Pillar Builders was unaware that any temporary electrical workers had performed electrical work at the construction site until the Complainant presented it with an invoice for the labor performed by the temporary electrical workers provided by the Complainant. 16. Credible testimony and evidence established that Respondent Pillar Builders fully paid Respondent Azteca for all electrical work that had been performed at the Walmart Construction project. 17. Undisputed testimony and evidence established that Respondent Azteca furnished Respondent Pillar Builders with a written waiver and release that provides that all monies owed for the electrical work performed at Walmart construction site had been fully paid to Respondent Azteca. 18. Respondent Azteca asserted that it was not responsible for any monies claimed by the Complainant because Respondent Azteca had no written contract with the Complainant. In addition, Respondent Azteca asserts that it was not responsible for any monies claimed by the Complainant because the temporary electrical workers performing electrical work at the Walmart construction project were employed directly by Respondent Pillar Builders. 19. Respondent Azteca denied that it had approved any of the hours that the Complainant’s temporary electrical workers allegedly worked at the Walmart construction project and denied any responsibility for paying the Complainant for the electrical work provided by the Complainant’s temporary electrical workers. 20. Credible testimony and evidence established that Respondent Azteca was fully aware of the fact that Complainant had furnished temporary electrical workers to perform electrical work at the Walmart construction project. 21. Credible testimony and evidence established that Respondent Azteca supervised the electrical work performed by the Complainant’s temporary electrical workers at the Walmart construction site. 22. Credible testimony and evidence established that Respondent Azteca was paid by Respondent Pillar Builders for all of the electrical work performed at the Walmart construction project, including the electrical work performed by the temporary electrical laborers furnished by the Respondent. 23. Credible testimony and evidence established that pursuant to an oral agreement with Respondent Azteca, the Complainant provided temporary electrical workers for a construction project wherein Respondent Aztecta was performing electrical work as an electrical subcontractor. 24. Credible testimony and evidence established that the temporary electrical workers furnished by the Complainant performed their construction work in a professional and workmanlike manner and that their electrical work was accepted by Respondent Azteca. 25. Credible testimony and evidence established that the Complainant then presented Respondent Azteca for the electrical work performed by the temporary electrical workers provided by the Complainant and that Respondent Azteca refused to pay the Complainant for the labor provided by the Complainant’s temporary electrical workers. 26. Credible testimony and evidence established that sum of $9,712.49 is the proper balance due and owing to the Complainant from Respondent Azteca. 27. Credible testimony and evidence established that notwithstanding repeated attempts and billings over a prolonged period of time, said balance of $9,712.49 remains unpaid by Respondent Azteca. 28. The failure of Respondent Azteca to pay the aforementioned sum of $9,712.49 to the Complainant for the labor performed by the temporary electrical workers provided by the Complainant is not found to be in good faith, and accordingly, under all of the facts and circumstances presented herein, the conduct of Respondent Azteca is found to constitute a violation of the applicable charged provisions of A.R.S. § 32-1154 (A) (11) (failure to pay monies in excess of seven hundred fifty dollars when due for services rendered). 29. Credible testimony and evidence established that Respondent Azteca failed to comply with the applicable provisions of A.R.S. § 32-1124 (B) (display of license). 30. The credible testimony and evidence of record is insufficient and fails to support a finding that Respondent Pillar Builders failed to pay monies when due in this matter. 31. The credible testimony and evidence of record is insufficient and fails to support a finding that Respondent Pillar Builders performed or contracted to perform work beyond the scope of the Respondent’s License. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondents 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 its burden of proof to establish that Respondent Pillar Builders violated the applicable charged sections of the state’s contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent Pillar Builders of the provisions of A.R.S. § 32-1154 (A) (11) (failure to pay monies in excess of seven hundred fifty dollars when due), and A.R.S. § 32-1154 (A) (17) (knowingly contracting beyond the scope of the license of the licensee), as charged in the Citation and Complaint. 5. Credible testimony and evidence supported findings which establish that Respondent Azteca violated the charged provisions of A.R.S. § 32-1154 (A) (11) (failure to pay monies in excess of seven hundred and fifty dollars when due) and A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124 (B) (display of license). RECOMMENDED ORDER (Case No. 2011-1186, Docket No. 2011A-1186-ROC) 1. In view of the foregoing, it is recommended commencing on the effective date of the Registrar of Contractors’ Order that the License of Respondent Azteca Electrical Construction, Inc., be suspended until the Registrar of Contractors receives and accepts written proof that Respondent Azteca Electrical Construction Inc. has paid the sum of $9,712.49 to the Complainant and that Respondent Azteca Electrical Construction Inc. is in full compliance with the provisions of A.R.S. § 32-1124 (B) (display of license). It is further recommended that if Respondent Azteca Electrical Construction Inc., pays the above described sum of money and provides acceptable proof that it is in full compliance with the applicable provisions of A.R.S. § 32-1124 (B), on or before the effective date of the Registrar’s Order, then the aforementioned license suspension shall not take place and this matter shall be closed. RECOMMENDed order (CASE NO. 2011-1187, DOCKET NO. 2011A-11867-ROC) In view of the foregoing, it is recommended that the Complaint and Citation against Respondent Pillar Builders Inc. (Corp.) 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 these Orders will be 40 days from the date of the certification. Done this day, October 5, 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