ALJDEC decisions subject to certification as final

2015A-1923-ROC · Registrar of Contractors · 2016-01-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 5, 2015, at 10:00 a.m. APPEARANCES: Valerie Lynn Winchell (hereinafter “Complainant” or “Ms. Winchell”) appeared telephonically on her own behalf. Alexon Design and Landscaping LLC (hereinafter “Respondent”) was represented by its qualifying party/member Thomas Wilcoxson (hereinafter “Mr. Wilcoxson”). ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ The hearing was convened to determine whether Respondent violated the charged provisions A.R.S. §§ 32-1154(A)(10) as alleged by Complainant and as cited by the Registrar of Contractors (hereinafter “Registrar”). Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT Background and Procedure 1. Respondent is the holder of License Nos. CR21.226757-D, B-5.265721-R, and R-11.272826-R issued by the Registrar. License No. CR21.226757-D was voluntarily canceled on January 24, 2014. License No. B-5.265721 was voluntarily canceled on January 24, 2014. License No. R-11.272826-R was voluntarily canceled on November 15, 2013.[1] 2. On or about May 4, 2015, the Registrar received a Complaint from the Complainant against the Respondent alleging that the Respondent had failed to pay the Complainant her commissions for work that she last work that she had performed at several construction projects identified as the 4/14/13 Lapre contract date, the 4/5/13 Heller contract) and the February, 2013 Trailov contract. Complainant stated that she had an oral agreement with Respondent to receive 9% of the total contract price for each of the three named projects. The Complaint provided, in relevant part, as follows: 1. Lack of payments on final jobs, even though promised. 2. Unable to finish jobs due to harassment and the violation of Alexon’s own independent contractor agreement stating Alexon “will not combine business operations with the person performing the services rather than maintaining these operations separately” (61-519 #8). My files for all customers were controlled by Alexon through a Go Daddy account which disable my ability to proceed.

3. On June 16, 2015, the Registrar issued a Citation for an Alleged Violation of A.R.S. § 32-1154(A). That Citation contained one charge: A violation of A.R.S. § 32-1154(A)(10).[2]

4. On August 11, 2015, the Registrar received a response from the Respondent which stated that the Heller and Trailov contracts were not awarded and nothing was due to Complainant as a commission. Respondent response provide, in relevant part, as follows: ….As for the Lapre project, the commission agreement was that the salesperson/designer would also be the project manager which included site visits, material selections and communication with our construction department throughout the construction process. Because this was not done by Valerie, I offered to pay her a “Design Fee” on the Lapre project in a text message that she refers to in the last paragraph. This payment was never made to Valerie, and we have no problem paying a design fee. There was no contact from Valerie after she left….

Testimony 5. Ms. Winchell testified that she did not close on the Lapre contract because she was uncomfortable with the measurements and pricing. Ms. Winchell stated that she informed the Respondent that she was rescheduling with the homeowner. Ms. Winchell said that when she started to go into the details and the phone conversation became escalated. Ms. Winchell said that the escalated conversation felt like an attack and she became upset. Ms. Winchell said that her employment with Respondent ended and that Respondent agreed to close out her projects and pay her. 6. Ms. Winchell testified that when Respondent closed down her Go Daddy account it was impossible for her to do any more work for Respondent. Ms. Winchell said that she received a text message from Respondent stating that the measurements for the Lapre project would have to be changed but that Respondent would still pay her for the project. Ms. Winchell said that was the last she heard from Respondent. 7. Ms. Winchell testified that when she did not receive payment for the Lapre project she asked her fiancée to contact Respondent because she was uncomfortable with speaking with Mr. Wilcoxson. Ms. Winchell said that Respondent was not willing to speak with her fiancée. 8. Ms. Winchell testified that she then waited to see if Mr. Wilcoxson would do the right thing and pay her. Ms. Winchell stated that she then contacted the Registrar of Contractors. 9. Ms. Winchell testified that Respondent owed her the sum of $4,368.19 which is 9% of the total contract of $48,535.86 for the Lapre project. Ms. Winchell stated that she had several meetings with the homeowner and that she designed the project. Ms. Winchell said that the project was ready to go when she was let go. 10. Ms. Winchell testified that she had also performed work on the Heller and Trailov contracts and wanted confirmation from Respondent that the Heller and Trailov contracts were not awarded. Ms. Winchell stated that she had many hours of work involved in both projects. 11. Ms. Winchell denied that she had ever represented to Respondent that she had experience as a project manager. Ms. Winchell said that she had experience as a designer not a project manager. Ms. Winchell denied that she had ever represented that she had experience as a project manager. 12. Mr. Wilcoxson testified that the Complainant’s design for the Lapre project could not be constructed as designed. Mr. Wilcoxson stated that he informed Complainant of the problem. Mr. Wilcoxson said that Respondent was already accepted a deposit from the homeowner and was contracted to construct a project that Respondent could not construct as designed by the Complainant. Mr. Wilcoxson said that there was a lot of frustration and the next day the parties agreed that their employment relationship would end during a telephone conversation. Mr. Wilcoxson acknowledged that he raised her voice. Mr. Wilcoxson said that Complainant was not entitled to 9% for the Lapre project because she did not function as a project manager for the construction project. 13. Mr. Wilcoxson testified that 9% of the Lapre contract would have been $4,128.00 not the sum claimed by Complainant. Mr. Wilcoxson said that Complainant only did the design part of the job was not entitled to 9% for the construction project. Mr. Wilcoxson said that Complainant failed to take the drainage and soil conditions into account for her design. Mr. Wilcoxson said that Respondent was required to spend three or four extra days working on drainage. 14. Mr. Wilcoxson said that the Heller and Trailov contracts were not awarded to the Respondent and nothing was due to Complainant for them. Mr. Wilcoxson presented an email from Peter Trailov and David Heller indicating that no work was performed by Respondent on the Heller and Trailov projects.[3] 15. Mr. Wilcoxson’s testimony is found to be credible. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[4] 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.[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] In this matter credible testimony established that the parties had an oral employment agreement wherein Complainant would receive 9% of the total contract price for construction projects were Complainant performed work as a project designer and project manager. No work was performed by Respondent on the Heller and Trailov projects and no percentage would have been due to Complainant for her work on the Heller and Trailov projects. Mr. Wilcoxson credibly testified that the Complainant’s design for the Lapre project could not be constructed as designed. Mr. Wilcoxson stated that Complainant only did the design part of the Lapre project. Mr. Wilcoxson said that Complainant failed to take the drainage and soil conditions into account for her design and that she did not act as the construction manager for the construction project. This Tribunal concludes that the preponderance of the evidence is insufficient and fails to support a finding that the Respondent violated the charged provisions of A.R.S. § 32-1154(A)(10). Consequently, this matter should be dismissed. RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. 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 five days from the date of the certification. Done this day, January 11, 2016.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] Mr. Wilcoxson currently appears as a member on current License Nos. KB- 2.300535-D, B-5.289045-R, and CR21.289046-D. [2] A.R.S. § 32-1154(A)(10) provides, in relevant part, as follows: A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: 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. [3] See Exhibits 1 and 2 (12/4/15 Email and 12/2/15 Email). [4] See A.R.S. § 32-1154(A). [5] See A.A.C. R2-19-119. [6] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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