ALJDEC decisions subject to certification as final

2011A-183-ROC · Registrar of Contractors · 2011-07-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 29, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondent appeared through its authorized representative, John Michel. 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’s License (No. 260443) was administratively suspended on January 16, 2011, for lack of qualifying party. 2. There was no dispute that on July 26, 2010, the parties entered into a employment agreement wherein the Respondent agreed to pay the Complainant the sum of twenty five dollars ($25.00) per hour for his time as a journeyman electrician and to pay the Complainant forty percent (40%) of the Respondent’s profit from all electrical, AC, and plumbing services performed at Wal-Mart or Sam’s Club stores. 3. Undisputed credible testimony and evidence established that the Complainant had been fully paid for all hours that he had worked as a journeyman electrician for the Respondent. 4. The Complainant asserts that the Respondent made $13,325.41 in profit from its work on various Wal-Mart and Sam’s Club stores during his period of employment and that he is entitled to the sum of $5,330.17 as his percentage share of the profits for the various construction projects. 5. The Complainant also asserts that the Respondent owes the Complainant $504.00 as reimbursement for the Complainant’s gas expenses for the various construction projects. 6. The Respondent asserted that the Respondent had made no profit on the various Wal-Mart and Sam’s Club construction projects and that the Respondent had actually lost money on all of the Wal-Mart and Sam’s Club construction projects at issue. 7. The Respondent denied that it owed the Complainant any money for unpaid gas expenses. 8. The credible testimony and evidence of record is insufficient and fails to support a finding that the Respondent made any profits from the Wal- Mart and Sam’s Club construction projects performed during the Complainant’s employment. 9. Credible testimony and evidence established that the parties’ written construction agreement does not contain a provision requiring the Respondent to reimburse the Complainant for his gas expenses. 10. The credible evidence of record adequately demonstrated a dispute between the parties regarding what, if any, amount of money is due and owing to the Complainant from the Respondent. 11. The Respondent’s position in this money dispute is found under all of the circumstances to have been asserted in good faith and therefore, precludes a finding that liquidated sum money is owed to the Complainant.

12. The parties’ good faith money dispute can be resolved in a civil court of competent jurisdiction. 13. Credible testimony and evidence established that the Respondent failed to properly comply with the applicable provisions of A.R.S. § 32-1124B (Display of license). 14. Notice is taken of the Respondent’s 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. 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, has not sustained the burden of proving that the Respondent has violated the charged provisions of A.R.S. § 32-1154 (A) (11) (Failure to pay monies in excess of .seven hundred fifty dollars when due). 5. Credible testimony and testimony supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (13), namely, A.R.S. § 32-1124(B) (Display of license). RECOMMENDED ORDER In view of the foregoing, it is recommended that the Respondent’s License be revoked unless the Respondent submits written proof to the Registrar that the Respondent is in full compliance with the provisions of A.R.S. § 32-1124 (B) (Display of license) and the Registrar accepts such written proof of compliance. It is further recommended that if the Registrar receives written proof of full compliance with the provisions of A.R.S. § 32-1124 (B) acceptable to the Registrar, on or before the effective date of this Order, then the above provided 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, July 12, 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