ALJDEC decisions subject to certification as final

2011A-6475-ROC · Registrar of Contractors · 2012-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 5, 2012, at 1:00 p.m. APPEARANCES: Complainant John Scoggins appeared on his own behalf; Respondent Ingenious, L.L.C. dba Ingenious Remodeling appeared through Brian Christopher Bondi, its qualifying party and member. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure The Arizona Registrar of Contractors (“the Registrar”) issued License No. B- 3.269987-R for residential general remodeling and repair to Ingenious, L.L.C. doing business as (“dba”) Ingenious Remodeling (“Respondent”). On November 14, 2011, the Registrar received a complaint from John Scoggins (“Complainant”) against Respondent that alleged that Respondent owed Complainant for 119.5 hours that he worked between October 10, 2011, and October 25, 2011, at $21.50/hour, and that Respondent also owed Complainant for 19.5 hours that he worked during the week ending September 23, 2011, at $21.50/hour, for a total amount owed of $2,988.50. The Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32-1154(A)(11). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violation. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. A hearing was held on April 5, 2012. Complainant submitted two exhibits and presented the testimony of two witnesses: (1) Himself; and (2) Edward Prestwood, the owner of the residence where Complainant performed most of the work for which Respondent had not paid him. Respondent submitted seven exhibits and presented the testimony of its qualifying party and member, Brian Christopher Bondi. At the hearing, Respondent tendered and Complainant accepted a check in the amount of $1,450.89, the amount that Mr. Bondi acknowledged Respondent owed to Complainant for unpaid wages. Complainant did not withdraw his complaint to the Registrar because he claimed that Respondent owed him more money and that its initial refusal to pay him for his work showed bad faith. Hearing Evidence The Parties’ Contract and Course of Dealing On or about May 10, 2011, Respondent hired Complainant as an independent contractor to act as superintendent on Respondent’s jobs. On that date, Complainant signed an Independent Contractor Construction Worker Contract for an hourly rate of $19.50/hour. On or about May 25, 2011, Complainant signed an Independent Contractor Construction Worker Contract for an hourly rate of $21.00/hour. Although Complainant testified that by September 2011, his hourly rate had been raised to $21.50/hour, he did not submit any documentation, such as an Independent Contractor Construction Worker Contract or pay stub, to establish the increased hourly rate. On or about July 12, 2011, Complainant signed Respondent’s Job Clock Policy, acknowledging that he was required to punch in at the jobsite at the beginning of his work and after lunch and to punch out at the beginning of his lunch hour and at the end of his work day. Respondent’s Job Clock Policy did not require employees to take lunch. On or about October 27, 2011, Complainant submitted his resignation letter to Respondent, effective immediately, because “[d]ue to work slow down I have been offered another job.” Complainant testified that the real reason he quit was that Mr. Bondi treated Respondent’s employees and customers so poorly. Mr. Prestwood testified that after Respondent abandoned his project, he hired Complainant to complete the project. Mr. Prestwood acknowledged that he had a pending complaint before the Registrar against Respondent. Although Respondent’s Job Clock Policy provided that it would pay employees based on their punch times, until Complainant quit, Respondent did not strictly enforce the time clock policy, but paid Complainant for time that he claimed on his time sheet, even though he had not punched in or out on the time clock. Complainant testified that the time clock policy was not suited to the circumstances of his work for Respondent because on most days, he stopped to purchase materials for the job before he arrived at and after he left the jobsite. Complainant testified that he included this time on his time sheet and that before he quit, Respondent paid him for time he spent purchasing materials for jobs. Mr. Prestwood testified that he works from home, and that Complainant arrived at his house in the early morning hours before he awoke, except for one day, and that on the days Complainant worked at the residence, he worked until 5:00 or 6:00 p.m. Complainant testified that between October 10, 2011, and October 25, 2011, he worked every day at Mr. Prestwood’s residence, with the exception of October 13, 2011, when he worked on Respondent’s project at the Fink residence. Mr. Bondi testified that because Complainant did side jobs during the time that Respondent employed him, Mr. Bondi did not know where Complainant was working or how long he worked if the information was not included in the time clock summary. / / / / / / / / Complainant’s Hours and Respondent’s Attempts to Pay Complainant Complainant did not submit a time sheet or paycheck to establish the 19.5 hours that Respondent allegedly did not pay him for the week ending September 23, 2011. Complainant submitted a time sheet with descriptions of the work that he performed each day between October 10, 2011, and October 25, 2011, and the number of hours that he worked each day, rounded to .5. Respondent submitted a time clock summary printout from its job clock showing the exact times that Complainant punched in and out and the exact time between those times to a hundredth of an hour. The relevant information from Complainant’s time sheet and Respondent’s time clock summary are set forth on the following chart: |Complainant’s Time |Respondent’s Time Clock | |Sheet |Summary Printout | |Date |Hours |Time In - Time Out |Hours | |October 10, 2011| 11.0|6:46 a.m. – 5:08 | 10.37| | | |p.m. | | |October 11, 2011| 11.0|6:43 a.m. | 0. | |October 12, 2011| 11.0| | 0. | |October 13, 2011| | | 0. | | |9.5 | | | |October 14, 2011| 11.5|7:34 a.m. – 5:46 | 10.20| | | |p.m. | | |October 17, 2011| |6:44 a.m. – 3:27 | | | |9.5 |p.m. |8.72 | |October 18, 2011| 10.5|7:04 a.m. – 4:57 | | | | |p.m. |9.88 | |October 19, 2011| 10.5|6:52 a.m. – 4:48 | | | | |p.m. |9.93 | |October 20, 2011| 10.0|7:33 a.m. – 4:13 | | | | |p.m. |8.67 | |October 21, 2011| |8:09 a.m. – 1:54 | | | |8.0 |p.m. |5.75 | |October 24, 2011| |4:03 p.m. – 4:03 | 0. | | |9.0 |p.m. | | |October 25, 2011| |8:14 a.m. – 1:48 | | | |8.0 |p.m. |5.57 | |Total Hours |119.5 | | 69.09|

Even though Respondent’s time clock summary showed that Complainant was punched into the time clock for 69.09 hours, Respondent did not immediately pay Complainant anything for his work on Respondent’s jobs between October 10, 2011, and October 25, 2011. On or about December 2, 2011, after Complainant filed the complaint to the Registrar, Mr. Bondi offered Complainant’s wife $1,000.00 and stated that if Complainant did not accept the offer, Mr. Bondi would pursue a claim against Complainant for tools and materials that he allegedly stole from the jobsite and would make a complaint for his unlicensed contracting activity. Mr. Bondi did not present any evidence to establish that Respondent was entitled to an offset against any amounts otherwise owed for stolen tools or materials.[1] On or about January 17, 2012, Respondent sent Complainant a check for the $1,450.89 that Mr. Bondi acknowledged was due for wages earned between October 10, 2011, and October 25, 2011.[2] As noted above, Complainant did not accept the check until the date of the hearing. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on April 17, 2012. Such prior License record reflects that Respondent’s license was current, four complaints were pending against the license, and one complaint had been closed as resolved, settled, or withdrawn. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[3] Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence.[4] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[5] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[6] Mr. Bondi acknowledged that Respondent did not pay anything to Complainant for his work between October 10, 2011, and October 25, 2011, until after Complainant filed a complaint to the Registrar, and that by his calculations, Respondent owed $1,450.89 to Complainant. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(11).[7] With respect to the additional amount claimed, Complainant and Mr. Prestwood credibly testified that Complainant worked full days remodeling Mr. Prestwood’s residence every work day between October 10, 2011, and October 25, 2011, with the exception of October 13, 2011. Respondent’s time clock summary for most days that Complainant punched in and out is consistent with Complainant’s and Mr. Prestwood’s testimony about Complainant’s long work days. Respondent’s time clock summary shows that Complainant actually was at the jobsite on October 11, 2011, and October 24, 2011, but it appears that Complainant failed to log out on October 11, 2011, and failed to log in on October 24, 2011. Respondent’s time clock summary also showed that Complainant punched out on the time clock on October 21 and October 25, 2011, during the time when workers who take a lunch break. Mr. Bondi acknowledged that he lacked first-hand knowledge or a specific recollection about the amount of time that Complainant worked for Respondent on the Prestwood project between October 10, 2011, and October 25, 2011. Mr. Bondi argued that based on Respondent’s Job Clock Policy, however, Complainant should not get paid for time that was not recorded by Respondent’s job clock. Complainant established that he worked the hours shown on the time sheet he submitted. Complainant also established that before he quit, Respondent’s practice was to pay him based on the times shown on his time sheet, regardless of whether he correctly punched in and out on the time clock. Therefore, Complainant established that Respondent violated A.R.S. § 32- 1154(A)(11) by failing to pay him for the difference between his time sheet and Respondent’s time clock summary, or 50.41 hours,[8] at $21.00/hour, for a total of $1,058.61. The Notice of Hearing stated that on the Registrar’s standing motion with the OAH, the Administrative Law Judge may properly consider Respondent’s prior disciplinary record and current license status as a factor in mitigation or aggravation of the recommended discipline.[9] The Administrative Law Judge considers the four open complaints and one closed complaint against Respondent as factors in aggravation of the recommended discipline. Mr. Bondi’s threats against Complainant to force him to accept less than the amount that was shown as due on Respondent’s own records are also considered as a factor in aggravation of the recommended discipline. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar revoke Respondent Ingenious, L.L.C. dba Ingenious Remodeling’s License No. B- 3.269987-R. It is further recommended if on or before the effective date of the Registrar’s final order, the Registrar receives satisfactory proof in writing from Respondent that it has paid Complainant John Scoggins the sum of $1,058.61 by certified or cashier’s check, the Registrar not revoke Respondent’s license but, instead, close the complaint in Case No. 2011- 6475. It is further recommended that, in addition to any license revocation that may result from this matter, Respondent’s Class B-3 license be placed on disciplinary probation for a period of 60 days, commencing on the effective date of the Registrar’s order or the date on which Respondent files notice of compliance, whichever is later. 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 40 days from the date of that certification. / / / / / / / / Done this day, April 18, 2012. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] The record does not reflect whether Mr. Bondi made a complaint for unlicensed contracting to the Registrar against Complainant. If he did not, the Registrar may initiate an investigation about whether Complainant violated A.R.S. § 32-1151 when he completed the Prestwood project. Complainant’s alleged unlicensed contracting activity subsequent to the termination of his employment is not relevant to the issue of whether Respondent owed Complainant wages for the time he worked under Respondent’s license. [2] 69.09 hours x $21.00/hour = $1,450.89 [3] See 32-1101 et seq. [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] See A.A.C. R2-19-119(B)(2). [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [7] A.R.S. § 32-1154(A)(11) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure by 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.” [8] 119.5 hours – 69.09 hour = 51.41 hours [9] See A.A.C. R4-9-117.

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