ALJDEC decisions subject to certification as final

2017A-3688-NPC-ROC · Registrar of Contractors · 2017-11-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Efren Torres,

COMPLAINANT,

v.

Arizona Wrangler Construction LLC,

License No. 291723,

RESPONDENT

No. 2017A-3688-NPC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 8, 2017 at 8:30 AM

APPEARANCES: Efren Torres (“Complainant”); Gabriela Contreras (“Ms. Contreras” Interpreter for Complainant); Manny Torres (“Mr. Torres” Witness for Complainant); Saman J. Golestan (“Mr. Golestan” attorney for Complainant); Joe Bernard (“Respondent” or “Mr. Bernard” representative for Arizona Wrangler Construction LLC); Thomas N. Swift (“Mr. Swift” attorney for Respondent); and Cesar Torres (“observer).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

FINDINGS OF FACT

Arizona Wrangler Construction LLC (“Respondent”) is the holder of License No. 291723 issued by the Registrar of Contractors (“Registrar”).

On or about July 19, 2017, Efren Torres (“Complainant”) filed a Complaint against Respondent with the Registrar alleging that Respondent failed to pay Complainant the sum of $11,000.00 for labor hours provided to Respondent on bathroom remodel and boot camp gym project.

Attached to Complainant’s claim were worksheets prepared for the Labor Department to include hours worked 12/22/2015 to 01/27/2016, Invoice No. 2016006 dated 02/05/2017. However, at hearing, Complainant testified that he never saw Respondent on-site and provided his hours to Manuel Torres.

Upon receipt of the Complaint, the Registrar sent a letter to the parties dated July 21, 2017, providing Notice that a Complaint was filed against Respondent for non-payment of materials or services rendered, and that Respondent may raise any issue or affirmative defenses to this complaint and may file a response by August 3, 2017, to the Complaint.

Respondent submitted it response to Complaint on July 27, 2017. In its response, Respondent argued at no time was Complainant an employee and no wages or other sums are due. Complainant further argued that Respondent paid to Manuel Torres and/or RMI Engineering, LLC for labor and he paid laborers it hired from the sums received from Respondent.

Respondent supported its position by accompanying canceled checks made payable to Manuel Torres, along with Invoice No. 2016002 from Manuel Torres to Joe Bernard AZ Wrangler dated 01/05/2016, to include various costs as follows:

Framing of Walls (Efren and Cesar) $1440.00

Floor Tile (Juan) $1100.00

Project Management $1320.00

General Labor $ 480.00

Plumbing Recirculate Pump (ADD) $ 375.00

On August 17, 2017, the Registrar issued a Citation to Respondent for Alleged Violation of A.R.S. § 32-1154(A)(10) . . . failure to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with licensee’s operations.

Respondent filed its Written Answer to Citation and Complaint on August 10, 2017, denying any violation, and further alleging that Efren Torres was employed by his son, Manuel Torres and/or RMI Engineering, LLC as a laborer on certain projects. Respondent admits that on one instance Respondent was mistakenly paid by its bookkeeper.

A Notice of Hearing was issued on August 16, 2017, that a hearing will be held at the Office of Administrative Hearings located at 1400 W. Washington St., Ste 101, Phoenix, AZ 85007.

Saman Golestan stated that Complainant is still due moneys for labor provided to Respondent on three (3) separate projects for an remainder amount due of approximately $11,000.00.

Thomas Swift stated that it is Respondent’s position that Complainant was not an employee and that he did not provide the tools or set the hours. He also admitted that on February 10, 2016, Respondent’s bookkeeper inadvertently made payment directly to Complainant.

Complainant referenced an invoice that was sent to Respondent dated 02/05/2017. When questioned on who prepared the statement, Complainant replied he did not know. There were various discrepancies in invoicing practices. Complainant submitted what was labeled Exhibit D on November 7, 2017, to the Registrar. Exhibit D was an invoice from Complainant to Respondent dated 02/05/2017, Invoice No. 2016006, in the amount of $2,618.00 with a description of Juanita Bathroom Remodel (76 total hours) $1,672; Sun Valley Church Remodel (21 Total Hours) $572; and Fit Body Boot Camp (17 Total Hours) $374.

However, the initial Invoice No. 2016006 dated 02/05/2016, from Efren Torres to Respondent that was attached to the Complainant’s initial complaint provided the billing parties name as Efren Torres but included Manny Torres’ address. Complainant was asked if he resides at Manny Torres’ address to which he replied, no.

Additionally, the initial Invoice submitted with the Complaint reflected a different total due of $2,244.00 with a description of Juanita Bathroom Remodel $500.00 (this work was lined out with a note “only 1 time”), and Sun Valley Church Remodel (79 hours) $1,744.00. Complainant testified he was paid $25.00 an hour but yet the billed amount equates to $22.08 per hour. It was also noted that the numbering scheme on the Invoices align with Manual Torres’ accounting system.

Manny Torres’ testified that he did prepare the Invoice to help his father, the Complainant.

Complainant provided copies of timesheets that were drafted on Labor Department Worksheets and prepared months after work was performed. The purpose of these worksheets was to accompany a complaint filed with the Labor Department by Complainant. Neither party provided any timesheets submitted at the time the work was performed and that were consistent with the hours that Complainant is alleging is still due and owing.

Complainant required the assistance of a language interpreter and provided testimony that he did not sign any paperwork with Respondent prior to being work and that he never gave his hours to Respondent but gave them to his son, Manuel Torres. He testified that he relied on his son to give his hours to Respondent for payment. When asked if he had any knowledge of his son’s billing practices, he replied no.

Manny Torres testified that he is the son of Complainant and was responsible for connecting his father with Respondent. He testified he is the owner and operator of RMI Engineering, LLC and he provided project management to Respondent. His tasks as project manager was to oversee getting supplies, obtaining bids and other on-site construction oversight.

Respondent provided four (4) separate invoices from Manny Torres to Arizona Wrangler Construction, LLC:

Date Invoice No. Amount Description

December 21, 2015 2016001 $3,900.00 Included cash payments to various labors

January 2, 2016 2016003 $3,500.00 Project Management

January 5, 2016 2016002 $4,715.00 Included work for various laborers.

January 11, 2016 2016004 $2,440.00 Included hours for various laborers.

Respondent provided a copy of its check ledger payable to Manny Torres/RMI Engineering, LLC, which reflects check no. 2400 in the amount of $17,000.00 paid on January 17, 2017. No invoice was provided by either party in support of or basis for this payment.

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 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.

Complainant failed to meet its burden that he was an employee of Respondent and that amounts are still due and owing in the amount of approximately $11,000.000 for the labor services. Complainant failed to provide time cards or time sheets to reflect that he, in fact, was being paid per hour upon submission of a weekly time sheets for payment. Complainant did provide an invoice dated 02/05/2016, but there were two conflicting versions of this Invoice.

Respondent did establish that it did not employee Complainant but does not come to this Tribunal with clean hands on unrelated matters that are not part of this complaint. Specifically, what appears to be the hiring of an unlicensed subcontractor who was charged with employing and payment to laborers.

Based on the testimony and evidence, Complainant failed to establish that Respondent violated A.R.S. § 32-1154(A)(10) of failing to pay Complainant $11,000.00 for services or materials rendered in connection with Respondent’s construction business.

Based upon the provisions of A.R.S. § 32-1154(A)(10), grounds do not exist to impose discipline against Respondent’s license

RECOMMENDed order

Based on the foregoing, it is recommended that the Registrar dismiss Complainant’s complaint.

.

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 27, 2017.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors