ALJDEC

99F-2649-ROC · Registrar of Contractors · 1999-09-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On September 1, 1999, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). John R. Glasgow (the “Complainant”) appeared on his own behalf. Larry D. Anderson appeared on behalf of Sunridge Roofing, Inc. (the “Respondent”). Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. Larry D. Anderson is the president and qualifying party for the Respondent.

2. In early 1999, Mr. Anderson and the Complainant had a meeting to discuss the Complainant’s possible employment as a landscaping supervisor for the Respondent. The Complainant testified that Mr. Anderson promised to hire him at a salary of $600.00 per week.

3. Mr. Anderson testified that he did meet with the Complainant to discuss the hiring of the Complainant as a landscaping supervisor for the Respondent. Mr. Anderson testified that the Respondent was expanding into the landscaping business at that time. Mr. Anderson testified that he promised the Complainant that if the Respondent’s landscaping business actually materialized, then the Complainant would receive a $600.00 salary per week (plus the use of a truck) as the Respondent’s landscaping supervisor. However, Mr. Anderson testified that he told the Complainant that he could only pay the Complainant $9.00 per hour (for doing odd jobs) until the landscaping business materialized. Mr. Anderson testified that the landscaping business never materialized primarily due to the problems (discussed below) associated with the Complainant.

4. Unfortunately, the parties never entered into a written employment agreement. The Complainant testified that he quit his old job to work for the Respondent. The Complainant began working for the Respondent on Monday, January 11, 1999. The Complainant testified that he worked on a “gate” project at the Briarwood Apartments that lasted 3 or 4 days. The Complainant testified that there was no other work during his first week of employment with the Respondent.

5. The Complainant testified that he performed roofing work at a house on 10026 W. Mariposa, Peoria during his second week of employment with the Respondent. The Complainant testified that this work took one and a half days to complete.

6. The Complainant testified that he also did roofing work at a doctor’s house during his second week of employment with the Respondent. The Complainant testified that this work took a couple of days to complete.

7. The Complainant testified that there was minimal work to be performed during his third week of employment with the Respondent. The Complainant testified that he did odd jobs at Mr. Anderson’s home during this week. The Complainant testified that he was also sick for a couple of days during this week. The Complainant further testified that he took another day off during this third week to resolve a legal problem at court.

8. The Complainant testified that he did not feel well during his fourth week of employment with the Respondent. The Complainant testified that he had to take a couple of days off from work during this week “to get my thoughts together.” The Complainant testified that Mr. Anderson was also ill on one day during the fourth week of employment. The Complainant testified that he only worked one day on playground equipment for the Respondent during the fourth week of employment.

9. The Complainant testified that he never did perform any landscaping services for the Respondent. The Complainant testified that he worked 13 to 14 days for the Respondent. However, the Complainant conceded that he usually worked less than eight hours a day. The Complainant testified that he received $400.00 in cash for the Briarwood Apartments project. The Complainant further testified that he received a $600.00 check for the roofing work at the doctor’s office. The Complainant testified that he never was paid for the roofing work on the Mariposa house. The Complainant testified that he ultimately quit and returned to his old job. The Complainant testified that the Respondent owes him $1,000.00 for unpaid salary.

10. The Complainant testified that he contacted the Registrar of Contractors about filing a complaint against the Respondent. The Complainant testified that two ladies at the Registrar of Contractors told him that the Respondent’s license had been suspended.

11. Mr. Anderson testified that he promised a salary to the Complainant only if the Respondent’s landscaping business materialized. Mr. Anderson testified that on February 2, 1999, the Complainant told him that the Complainant could not lift more than 15 pounds. Mr. Anderson testified that this was a huge problem because he assumed that the Complainant (as the Respondent’s landscaping supervisor) would be able to perform landscaping duties requiring great physical strength. Mr. Anderson further testified that the Complainant was too unreliable to be a landscaping supervisor. Mr. Anderson testified that the Respondent’s landscaping business never materialized primarily because of the Respondent’s physical/health, legal, and emotional problems.

12. Mr. Anderson testified that the Respondent paid the Complainant $1,000.00 for about 11 days of work. Mr. Anderson testified that the Respondent owes nothing more to the Complainant.

13. Mr. Anderson testified that his license was never suspended by the Registrar of Contractors. Mr. Anderson testified that the Registrar of Contractors did not have the Respondent’s correct address because the Respondent had moved to a new location. The record is not entirely clear on this issue but apparently the Respondent’s problem(s) with the Registrar of Contractors were rectified after the Respondent had updated its address with the Registrar of Contractors. Notice is taken of the Registrar’s licensing records that the Respondent’s license number 118287 was renewed in April of 1999. The undersigned Administrative Law Judge cannot locate any record of this license being suspended. Furthermore, no evidence was presented showing that the Respondent entered into a contract or submitted a bid while this license was suspended.

14. The undersigned Administrative Law Judge finds that the Complainant was not entitled to a salary of $600.00 per week during his employment with the Respondent. First, the Complainant presented no employment contract showing that he was entitled to a salary. Second, the Complainant presented no eyewitness who could verify that the Complainant was entitled to a salary. Third, the Complainant repeatedly stated that he was paid (or not paid) for a certain project. A salaried employee would have testified that he was paid (or not paid) for a certain week. Finally, the Complainant and Mr. Anderson both testified that they met in early 1999 to discuss the hiring of the Complainant as a salaried landscaping supervisor. However, the Complainant never performed any landscaping services for the Respondent. More importantly, the Complainant’s personal and physical problems undoubtedly hindered the realization of the Respondent’s landscaping business.

15. The undersigned Administrative Law Judge finds that the Complainant worked approximately 100 hours (14 days x 7 hours per day) for the Respondent. Accordingly, the undersigned Administrative Law Judge finds that the $1,000.00 (or $10.00 per hour) paid by the Respondent to the Complainant was fair and reasonable for the work performed by the Complainant.

CONCLUSIONS OF LAW

1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(7) as set forth in Findings of Fact ## 14 & 15.

3. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(11) as set forth in Findings of Fact ## 14 & 15.

4. The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32-1154(A)(18) as set forth in Findings of Fact # 13.

5. The undersigned Administrative Law Judge concludes that grounds do not exist to discipline the Respondent’s Class C-61 license pursuant to A.R.S. §32-1154.

RECOMMENDED DECISION

Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Respondent’s Class C-61 License Number 118287 not be disciplined and that the entire Citation and Complaint in Case Number 99- 2649 be dismissed.

Done this day, September 7, 1999.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of September, 1999, to:

Michael P. Goldwater Registrar of Contractors 800 West Washington, 6th Floor Phoenix, AZ 85007 ATTN: Joyce Armijo

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826