ALJDEC decisions subject to certification as final

2016A-2997-ROC · Registrar of Contractors · 2016-11-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Filiberto Cisneros,

COMPLAINANT,

v.

Jaime Construction Inc.,

License Nos: 95143 and 172319,

RESPONDENT.

No. 2016A-2997-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 18, 2016

APPEARANCES: Filiberto Cisneros (Complainant) was represented by Fidelis Garcia, Esq. Jaime Construction, Inc. was represented by Joe Jaime, its qualifying party.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

FINDINGS OF FACT

Jamie Construction, Inc. (Respondent) is the holder of License Nos. 95143 and 172319 issued by the Registrar of Contractors (Registrar).

Complainant filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay him money he earned while working on draining a lake at the Scottsdale Shadows apartment complex. Complainant alleged that the parties had a verbal agreement whereby Complainant would receive $300.00 a day for his work and that he had worked a total of 26 days from March 3, 2016 to April 15, 2016 to complete the job but Respondent refused to pay him. Complainant believed Respondent owed him $7,800.00.

Respondent agreed that the parties entered a verbal agreement but maintained that Complainant had bid $5,300.00 to drain the lake at Scottsdale Shadows over two to three days. According to Respondent, Complainant was unable to perform the work as promised and prematurely left the job, costing Respondent a total of $13,950.00. Because Respondent lost money on the job, it did not believe it owed Complainant any money.

The parties were unable to resolve their differences, and Complainant requested an administrative hearing. The Registrar then issued a formal Citation charging Respondent with a possible violation of A.R.S. § 32-1154(A)(10).

Complainant testified that he had worked with Respondent on numerous jobs in the past and acknowledged that on some occasions, he had prepared written invoices for Respondent. Complainant said that on other occasions, the parties would come to a verbal agreement.

Complainant noted that Respondent hired him to take out mud and empty pumps at the lake at Scottsdale Shadows apartments. Complainant said the lake was big and there was no way he could complete the work in two or three days. He also stated that he would never agree to work for free for 23 days.

Complainant indicated that Joe Jaime of Respondent agreed to pay him $300.00 a day for every day he worked and never told him he was not working as expected or that he had not finished the work when they corresponded by text message.

Complainant agreed that Respondent had given him several checks, but denied this was payment toward his wages. Complainant said the checks represented reimbursement for expenses and money to pay day labors that Joe Jaime wanted brought to the job.

Joe Jamie (Jamie) denied that he had hired Complainant to work for Respondent as an employee. He noted that Complainant had subcontracted jobs from Respondent for years, primarily via verbal agreement, and they had never had a problem.

Jamie said he called Complainant and asked him to make a bid on the Scottsdale Shadows job. Once he received the bid for $5,300.00 for two to three days’ work, Jamie incorporated it into his proposal to Scottsdale Shadows.

By the second day, it became apparent that Complainant could not do what he had promised and had “bitten off more than he could chew” so Respondent agreed to pay rental fees and gas to get the job done. According to Jamie, Complainant walked off the job with a week of work left and he had to use Jaime Electric employees to finish the job.

Jamie was adamant that Respondent had lost significant money on the job due to Complainant’s “incompetence” and therefore owed him nothing.

Following the hearing Complainant’s counsel filed a motion to designate an exhibit and a portion of the testimony that was already in the record as confidential. That motion was denied because the Office of Administrative Hearings lacks the ability to retroactively designate exhibits and portions of the hearing record confidential. Such requests must be made in advance of the hearing.

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.

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).

A.R.S. § 32-1154(A)(10) 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.

Because the parties’ agreement was only verbal, Complainant has not met his burden of proving he was entitled to $300.00 a day for 26 days for a total of $7,800.00. While Complainant is adamant that he agreed to a daily wage, Respondent was equally adamant that the parties’ verbal agreement was for a set amount and that Respondent spent in excess of that amount finishing Complainant’s work. Where, as here, the evidence is of equally weight, it cannot be determined what the parties’ agreement was and whether Respondent owes Complainant any money. As such, it would inappropriate to discipline Respondent’s license on this record.

RECOMMENDed order

Based on the foregoing, it is recommended that Complainant’s complaint 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 40 days from the date of the certification.

Done this day, November 30, 2016.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors