ALJDEC decisions subject to certification as final

2013A-5360-ROC-res · Registrar of Contractors · 2014-09-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 25, 2014, at 8:00 a.m. APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General, Seth Hargraves. James Dwight Salisbury dba Dexon Construction (hereinafter “Dexon” or “Mr. Salisbury”) appeared on his own behalf. 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 Background Dexon is the holder of License No. B-2.226275-C issued by the Registrar. License No. B-2.226275-C is a small commercial construction license limited to the construction of any new structure or addition built, being built, or to be built for the support, shelter and enclosure of persons, animals, chattels, or movable property of any kind for which the total amount paid to the licensee does not exceed $750,000.00. On or about September 10, 2013, the Registrar received a Complaint against Dexon from Edward Rivera (hereinafter “Mr. Rivera”) alleging that Dexon owed Mr. Rivera $12,300.00 for unpaid wages for services rendered at one of Dexon’s construction projects.[1] The Complaint included a Determination and Direction for Payment from the Labor Department of the Industrial Commission of Arizona directing Dexon to pay $4,100.00 for Mr. Rivera’s unpaid wages to the State Labor Department within ten (10) days of June 11, 2013.[2] The Determination and Direction for Payment further provided as follows: Pursuant to A.R.S. § 23-360, an employer who fails to pay the wages found to be owed within ten (10) days after this order becomes final is liable to pay the employee an amount which is equal to treble the amount of unpaid wages, namely an amount of $12,300.00 which shall be subject to interest at the legal rate.

On or about January 14, 2014, the Registrar issued a Citation and Notice of Hearing charging Dexon with an alleged violation of A.R.S. § 32- 1154(A)(11).[3] Testimony of Edward Rivera Mr. Rivera testified that he responded to an advertisement placed on Craigslist by Dexon that requested experienced tapers and painters for a commercial construction project in New Mexico. Mr. Rivera stated that he was hired by Dexon as a painter and that he performed painting work on a construction project in New Mexico for Dexon. Mr. Rivera testified that he was an hourly employee and that he maintained records for the hours that the worked for Dexon.[4] Mr. Rivera testified that Dexon failed to pay him for the construction work that he performed for Dexon at the agreed-upon hourly rate. Mr. Rivera stated that he repeatedly attempted to obtain his wages from Dexon. Mr. Rivera testified that when Dexon failed to pay his back wages, he filed a complaint with the Labor Department of the Industrial Commission of Arizona. Mr. Rivera testified that on June 11, 2013, the Labor Department of the Industrial Commission of Arizona issued a Determination and Directive for Payment directing Dexon to pay Mr. Rivera the net amount of $4,100.00 in unpaid wages that were owed by Dexon to Mr. Rivera.[5] Mr. Rivera stated that Dexon failed to comply with the Determination and Directive for Payment and that pursuant to the terms of the Determination and Directive for Payment, Dexon is now obligated to pay Mr. Rivera an amount which is equal to treble the amount of unpaid wages, resulting in a total amount owed of $12,300.00. Mr. Rivera testified that Dexon failed to pay him anything for his back wages despite the Determination and Directive for Payment from the Labor Department of the Industrial Commission of the Arizona. Mr. Rivera’s testimony is found to be credible. Testimony of Jose Gill, Esq. Jose Gill, Esq., (hereinafter “Mr. Gill”) testified that he is a staff attorney with the Legal Department for the Registrar of Contractors. Mr. Gill stated that he was familiar with Mr. Rivera’s complaint against Dexon. Mr. Gill testified that Dexon’s License No. B-2.226275-C is current. Mr. Gill testified that Dexon’s failure to pay the back wages that it owed to Mr. Rivera is a violation of the charged provision of A.R.S. § 32- 1154(A)(11). Mr. Gill stated that as of July 24, 2014, Arizona Revised Statutes Title 32, Chapter 10 had been changed and the provisions of A.R.S. § 32-1154(A)(11) are now found within A.R.S. § 32-1154(A)(10). Mr. Gill’s testimony is found to be credible. Although Mr. Salisbury appeared at the hearing on Dexon’s behalf, he did not offer nay evidence. CONCLUSIONS OF LAW The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.[6] 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). Dexon failed to pay Mr. Rivera the agreed-upon hourly rate for the construction work that he performed for Dexon. When Dexon failed to pay Mr. Rivera his back wages, he filed a complaint with the Labor Department of the Industrial Commission of Arizona. On June 11, 2013, the Labor Department of the Industrial Commission of Arizona issued a Determination and Directive for Payment directing Dexon to pay Mr. Rivera the net amount of $4,100.00 for unpaid wages that were owed by Dexon to Mr. Rivera. Dexon has failed to comply with the Determination and Directive for Payment issued by the Labor Department of the Industrial Commission of Arizona. This Tribunal concludes that Dexon violated the charged provision of A.R.S. § 32-1154(A)(11), which has been renumbered as A.R.S. § 32-1154(A)(10).[7] RECOMMENDed order In view of the foregoing, it is recommended that License No. B- 2.226275-C of James Dwight Salisbury dba Dexon Construction shall be suspended for a period of five (5) days. 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, September 10, 2014.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit 2 (Complaint form and supporting documents). [2] See Exhibit 2 (6/11/13 Determination and Direction for Payment). [3] On July 24, 2014 A.R.S. § 32-1154(A) was revised and the provisions of A.R.S. § 32-1154(A)(11) are now found in A.R.S. § 32-1154(A)(10). A.R.S. § 32-1154(A)(10) provides as follows:

Failure by a licensee or agent or official of 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

[4] See Exhibit 2 (Complaint and Attachments). [5] See Exhibit 2 (Complaint and Attachments). [6] A.A.C. R2-19-119 provides as follows: A. Standard of proof. Unless otherwise provided by law, the standard of proof is a preponderance of the evidence. B. Burden of proof. Unless otherwise provided by law: 1. The party asserting a claim, right, or entitlement has the burden of proof; 2. A party asserting an affirmative defense has the burden of establishing the affirmative defense; and 3. The proponent of a motion shall establish the grounds to support the motion.

[7] On July 24, 2014 A.R.S. § 32-1154(A) was revised and the provisions of A.R.S. § 32-1154(A)(11) are now found in A.R.S. § 32- 1154(A)(10).

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