ALJDEC decisions subject to certification as final

2011A-1232-ROC · Registrar of Contractors · 2011-06-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 7, 2011 APPEARANCES: Complainant Chad Michaels appeared on his own behalf. John Michel appeared on behalf of Respondent M D Mechanical, Inc. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent M D Mechanical, Inc. (“MD”) is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. MD is the holder of a Class C-39 license (No. 241004) and a Class L-39 license (No. 241005) issued by the Registrar of Contractors (“ROC”). John Michel is the qualifying party for both of MD’s licenses. 2. Complainant Chad Michaels filed a complaint against MD with the ROC generally alleging that MD has failed to pay Mr. Michaels $3,550.00 in wages, vacation time, and “banked time.” Mr. Michaels stated on the complaint form that he “was an employee” of MD and listed MD’s license numbers 241009 and 241005.[1] 3. At hearing, Mr. Michaels testified that he wants to be paid what is owed to him for the time he worked for MD. However, Mr. Michaels could not testify with certainty as to the exact amount of money he believed he was owed. Further, Mr. Michaels acknowledged that he was actually employed by and was qualifying party for MD Mechanical Air Conditioning Heating and Plumbing, L.L.C. (“MD, LLC”), holder of a Class K-11 License Number 260443. On or about November 16, 2010, Mr. Michaels resigned as qualifying party for MD, LLC, and its license was suspended on January 16, 2011, for lack of a qualifying party. 4. Mr. Michel testified that Mr. Michaels was never employed by MD, but rather by MD, LLC. Therefore, Mr. Michel contended, MD does not owe Mr. Michaels any amount of money. 5. The Administrative Law Judge finds, based upon the credible evidence of record, that Mr. Michaels’ complaint against MD is misplaced. Mr. Michaels was employed by MD, LLC, a separate legal and separately licensed entity from MD. The Administrative Law Judge further finds that MD is not the proper entity from which Mr. Michaels should be seeking payment. 6. The Administrative Law Judge finds, based on the weight of the credible evidence of record, that Mr. Michaels failed to establish that MD owes any monies to him. CONCLUSIONS OF LAW In this proceeding, Mr. Michaels bears the burden to prove, by a preponderance of the evidence, that MD is subject to discipline for violations of A.R.S. § 32-1154(A)(11) as charged by the ROC in its March 2, 2011 Citation and Complaint. See Arizona Administrative Code R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that Mr. Michaels failed to prove the alleged violation charged by the ROC. Under A.R.S. § 32-1154(A)(11), a contractor is subject to discipline for the “failure . . . 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 . . .” The Administrative Law Judge concludes, based on the weight of the credible evidence of record, that Mr. Michaels failed to establish that MD owes any monies to him. Therefore, the Administrative Law Judge concludes that MD did not violate A.R.S. § 32- 1154(A)(11). The Administrative Law Judge concludes, based upon the weight of the credible evidence of record, that no grounds exist to impose discipline against MD’s licenses. The ROC’s Citations in Case Numbers 2011-1232 and 2011-356, and the Complaint upon which they are based, should be dismissed.

RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: It is ordered that no discipline be imposed against MD’s licenses, and that the Citations in Case Numbers 2011-1232 and 2011-356, together with the Complaint upon which they are based, 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 forty (40) days from the date of that certification. Done this day, June 20, 2011.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Mr. Michaels incorrectly listed one of the license numbers as 241009, rather than 241004.

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