ALJDEC decisions subject to certification as final

2013A-2424-ROC · Registrar of Contractors · 2015-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 14, 2015 APPEARANCES: Kimberly Martinez, Complainant; Barry Bennett, Respondent’s representative; Jim Dimond, Registrar of Contractors Inspector ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________ After filing a complaint against Respondent, Complainant offered insufficient evidence to establish that Respondent knew or should have known that the man who contracted with her and worked on her project was claiming to work under Respondent’s license. Therefore, Respondent’s appeal should be sustained and the Citation and its underlying complaint should be dismissed in their entirety. FINDINGS OF FACT 1. On or about May 14, 2013, the Registrar of Contractors received a complaint regarding Respondent. Pursuant to a job site inspection, Inspector Jim Dimond identified 7 areas of work that required correction. Respondent was not represented at the inspection. 2. On November 13, 2014, Inspector Dimond issued a Directive from the Registrar directing Respondent to repair the work.[1] No corrective work was completed however. 3. By letter dated June 11, 2015,[2] Respondent’s Qualifying Party, Barry Bennett, informed the Registrar of Contractors that he was not the contractor on Complainant’s job and the man who did the work, Gino Prisco, was not an employee of his. He summarized some conversations with Inspector Dimond and Complainant. He said Complainant refused to allow Mr. Prisco to return to her home and complete the work unless Respondent accepted responsibility for it. Respondent declined to accept responsibility for the job. 4. It is clear from emails by Mr. Prisco that he claimed to be using Respondent’s license.[3] At the hearing, Complainant also argued that Mr. Bennett admitted to her in a recorded phone call that he had hired Mr. Prisco in the past.[4] Mr. Bennett argued that he had worked on the same jobs as Mr. Prisco in the past but had never hired him directly and never claimed to. He argued that the conversation should be considered in context. He said he tried to facilitate Complainant’s relationship with Mr. Prisco because he did not want him to go to jail, but he was not willing to hire him and risk his own license. 5. Inspector Dimond stated that he thought Respondent knew that Mr. Prisco was working under his license, which would be aiding and abetting an unlicensed contractor. This impression appears to be based on Mr. Bennett admission to hiring Mr. Prisco in the past, which is not relevant to this matter because it is undisputed that Respondent was not cited or charged with aiding and abetting. 6. Inspector Dimond stated that he did a “wage check” by contacting the Department of Economic Security and found that Respondent does not pay unemployment insurance for Mr. Prisco. Therefore, there is no documentary evidence whatsoever that Mr. Bennett has hired Mr. Prisco at any time or that he knew Mr. Prisco was claiming to be working under his license. The entirety of Complainant’s case was only that Mr. Bennett admitted to hiring Mr. Prisco in the past and later said he did not. 7. Other than statements made by Mr. Bennett that he knows Mr. Prisco and that he either has or has not hired him in the past, no evidence whatsoever was presented to show that Mr. Prisco had permission to state that he was working under Respondent’s license or that Mr. Bennett knew of Mr. Prisco’s claims at the time the work was done. 8. Complainant has not offered sufficient evidence to establish that Respondent has in any way been involved in the work done at her home other than to be the victim of misrepresentation by Mr. Prisco. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to the Arizona Revised Statutes (“A.R.S.”) §§ 32-1104(A)(4), 32-1154(B) and 32-1156. Complainant has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See A.A.C. 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). 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). 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32- 1154(A)(3) and (22) and Arizona Administrative Code (“A.A.C.”) R4-9- 108. 3. A.R.S. § 32-1154(A)(3) provides grounds for suspension or revocation of a contractor’s license for “[v]iolation of any rule adopted by the registrar”. The Arizona Administrative Code requires contractors to meet minimum workmanship standards in the projects they undertake. A.A.C. R4-9-108. 4. A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. 5. In this case, the Complainant has not established that Respondent violated A.R.S. § 32-1154(A)(3) or (22) because she did not establish that Respondent was in any way involved in any contracting activities at her home. An allegation alone, in the face of a denial, cannot meet the standard of evidence, even when the accused has been established to have contradicted himself on another matter. Complainant offered no legal support for finding that a former employee can work under the license of any licensed contractor he or she has worked for in the past and there is no legal authority that warns licensed contractors that they are responsible for work performed by every person they have ever hired. No evidence was presented that Mr. Bennett or anyone working for Respondent was aware the Mr. Prisco was doing the job while claiming to work under Respondent’s license. 6. Although it was undisputed that the project did not meet minimum workmanship standards, Respondent is not responsible for a project that it had no knowledge of and did not agree to perform. RECOMMENDED DECISION Based on the foregoing, it is hereby recommended that this Citation (case no. 2013-2424), together with the Complaint upon which it is based, be dismissed.

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be 5 days from the date of certification. Done this day, September 23, 2015.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Lg Site Doc1.pdf in the agency record electronically filed on July 17, 2015. [2] Lg Citation1.pdf in the agency record electronically filed on July 17, 2015. [3] Insp Correspondent From Complainant9.pdf in the agency record electronically filed on July 17, 2015. [4] Exhibit A is a transcript of the recorded conversation. Mr. Bennett does state therein that he has hired Mr. Prisco in the past.

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