ALJDEC decisions subject to certification as final

2016A-81-ROC · Registrar of Contractors · 2016-05-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 12, 2016 APPEARANCES: Garth M. Bell (Complainant) appeared on his own behalf. J & L Flooring Inc. was represented by Delmi Lorely Plumney, its former co-owner and representative. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT 1. J & L Flooring, Inc. (Respondent) is the holder of License No. 261735 issued by the Registrar of Contractors (Registrar). That license is currently suspended until compliance through June 3, 2016.[1] 2. On January 7, 2016, Complainant filed a Complaint against Respondent with the Registrar alleging that Respondent had failed to pay $3,200.00 in commissions on the Honeycutt job he had brought in while working as a commissioned sales person for Respondent. 3. Complainant indicated in the attachments to the Complaint that he had filed a wage claim with the Industrial Commission of Arizona, but that it was unable to make a determination due to the lack of written documentation. 4. Specifically, on December 2, 2015, the Labor Department of the Industrial Commission of Arizona issued its Dispute Determination as follows: In accordance with the provisions of A.R.S. 23-357, the Labor Department has completed its investigation of the above-captioned wage claim and finds that a dispute exists which cannot be resolved by the Department's investigation.

The employer said the claimant was to be paid commissions on a sliding scale. The claimant said he was to be paid on a flat seven percent of the job sold. Documentation provided does not support either assertion.

5. Complainant acknowledged that he had no written contract with Respondent, but maintained that the parties orally agreed the he would receive $400.00 a week plus a seven precent commission, which would entitle him to $3,214.00 on the Honeycutt job, which the parties agreed totaled $43,600.00. 6. Respondent’s position was that it owed Complainant nothing because Complainant was paid commission on a sliding scale only if the job was profitable. Respondent maintained that it lost money on the Honeycutt job due to Complainant selling the job short and miscounting what was needed to complete it. 7. 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). 8. At hearing, neither party could submit documentation that was different than what had previously been submitted to the Industrial Commission of Arizona. 9. Delmi Plumney provided a spread sheet that she had created for the Industrial Commission of Arizona showing the purported $9,873.00 of shortages on the Honeycutt job. She also submitted check stubs that appeared to show that Complainant had been paid sliding commissions on other jobs. 10. Complainant testified that when he began working for Respondent he and Jason Plumney had a verbal agreement for a flat seven percent commission. He noted he would never have agreed on a sliding commission because doing so would not provide security for his family.

11. Complainant acknowledged that after he began work, Jason Plumney told him about a sliding scale but that was never settled between the parties. 12. Complainant said he left the job because Jason Plumney had become verbally abusive and forced him out. He waited until the Honeycutt job ended and then attempted to obtain his commission. 13. Michele Anne Bell, Complainant’s wife and Respondent’s former office manager, testified that Complainant had no authority over the management of jobs and so would never have agreed to tie his commission to job management. She noted that Jason Plumney added thousands of dollars of extras to the Honeycutt job at no cost and hence was responsible for any shortages. 14. Delmi Plumney testified that Respondent had been locked out of its showroom and lacked access to its written documentation. She said that Respondent had gone out of business and that her husband Jason Plumney could not attend the hearing because he was working out of state.

CONCLUSIONS OF LAW 1. 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. 2. 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). 3. 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.

4. In the absence of a written agreement between the parties relative to the commission agreement, the Tribunal cannot determine by a preponderance of the evidence that such an agreement to pay a flat seven percent commission existed. While Complainant is adamant that such an agreement existed, Respondent is equally convinced that it agreed to pay commissions on a sliding scale only when a job was profitable. Where, as here, the evidence is of equal weight, Complainant has failed to meet his burden of proof that Respondent violated A.R.S. § 32-1154(A)(10). RECOMMENDed order Complainant’s Complaint should 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, May 31, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] The Tribunal takes administrative Notice of Respondent’s licensing history available on the Registrar’s website and reviewed on May 23, 2016. Respondent’s license has been disciplined three times and two additional, open complaints were settled or withdrawn.

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