ALJDEC

01F-3026-ROC · Registrar of Contractors · 2001-11-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 5, 2001 APPEARANCES: Jose Mendez for Complainant; Michael Peck for Respondent ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. The caption of this matter is amended to reflect that the respondent in this matter is Courtesy Roofing, Inc. doing business as Aspen Roofing (Respondent). 2. This matter involves an allegation made by Matrix Roofing, L.L.C. (Complainant) that it is owed monies from Respondent for roofing work performed at 4232 East Paradise Drive, Paradise Valley, Arizona (the project/Home). 3. It is undisputed that Michael Peck (Mr. Peck), the owner of Respondent, initially contacted Michael Stapleton (Mr. Stapleton), a licensed roofing subcontractor doing business as AZPRO Roofing and Repairs (AZPRO), to perform work on the project. 4. Mr. Stapleton did not agree to perform work at the project for Respondent because he was physically unable to perform such work. 5. It is undisputed that Mr. Stapleton referred Respondent to Complainant, a licensed contractor, to perform work on the project.

6. Mr. Peck testified that Respondent and Mr. Stapleton had a prior working relationship whereby Mr. Stapleton verbally accepted to perform roofing work for Respondent at the rate of $85.00 “per square”. Previously, when Respondent orally contracted with Mr. Stapleton to perform roofing work, it was not uncommon for Mr. Stapleton to not perform the work himself and send other individuals to perform that work. 7. In this case, the issues presented before the Administrative Law Judge were: a) whom did Respondent contract with to perform roofing work on the project; b) whether Complainant was an employee of AZPRO; and c) what were the payment terms of the contract. 8. It is undisputed that Mr. Peck contacted Jose Mendez (Mr. Mendez), Complainant’s owner and Qualifying Party, requesting that roofing work to be performed on the project. Complainant agreed to and did perform such work. 9. Mr. Stapleton testified that during the relevant time period, Complainant was not an AZPRO employee and that Mr. Stapleton did not contract with Respondent for work to be performed on the project. 10. Mr. Mendez testified that he did not contract with Mr. Stapleton to perform work on the project, that he believed he was contracting with Respondent for such work, and that he was never Mr. Stapleton’s employee during the relevant time period. 11. The Administrative Law Judge determines that Complainant and Respondent entered into a verbal contract for roofing work to be performed on the project. 12. Mr. Peck testified that Respondent’s payment arrangement with Mr. Stapleton was always that Mr. Stapleton would be paid in full when work was completed at the rate of $85.00 “per square”. 13. Mr. Mendez testified that at the time he agreed to perform work on the project, he was aware of Respondent’s measurements as to square footage of the roof of the Home as being 2100 square feet and the rate of $85.00 “per square”. 14. During the hearing, Complainant contended that because it performed work on the roof of the Home over an area greater in square footage than that measured by Respondent, Complainant is entitled to be compensated in the total amount of $2040.00, calculated by using Complainant’s measurement of 2400 square feet ($85.00 x 24). 15. Respondent contended that because when the contract was entered into Complainant was aware of Respondent’s measurement of the Home’s roof, Complainant accepted such measurement as the scope of work to be performed. Respondent further contended that prior to performing work over a greater area than that contemplated by Respondent, Complainant should have informed Respondent that Complainant intended to perform work on a larger area and to be compensated accordingly for such work. 16. It is undisputed that Complainant did not measure the Home’s roof or submit a bid to Respondent prior to or during work being performed on the project. 17. Respondent has paid Complainant the sum of $1,040.61, which was calculated using the rate of $85.00 “per square” ($85.00 x 21). From that sum, Respondent deducted $744.39, which is the amount Respondent paid to the owner of the Home for damage caused to her car. 18. Joe Brundon (Mr. Brundon), an employee of Complainant during the relevant time period, testified that Complainant loaded materials on the roof of the Home. Subsequently, the owner of the Home informed him that she needed to move her car from the garage. When the garage door was opened, the owner observed that the dome light in the garage had fallen down and glass had shattered on the hood of her car. The evidence is inconclusive as to when the dome light actually fell down. 19. Upon being notified by the owner of the Home that the dome light had fallen, Complainant’s workers came down from the roof and removed glass from the car and garage. The employees then swept the area and moved the car into the sunlight for inspection. 20. According to Mr. Brundon, after glass was washed off of the hood of the car and the car was inspected, no damage was observed to have occurred to the car. 21. Mr. Peck testified that the owner of the Home presented him with an estimate for repair for the damage that occurred to her car. Mr. Peck has paid the owner of the Home the sum of $744.39 and deducted that sum from the amount of compensation Respondent intended to pay Complainant because Mr. Peck believes Complainant is responsible for the damage to the car. 22. The weight of the evidence of record establishes that Complainant undertook to perform work on the project for Respondent at the rate of $85.00 “per square” and accepted Respondent’s measurements as to the scope of the work. Consequently, it is determined that Respondent owed Complainant the sum of $1,785.00 ($85.00 x 21) for such work. 23. The evidence of record established that Respondent has paid Complainant the sum of $1,040.61. 24. The evidence of record established that Respondent did not pay Complainant when the work was completed because of the above-mentioned damage claim submitted by the owner of the Home . 25. Mr. Peck testified that when the verbal contract was entered into, he never discussed with Complainant what would happen in the event of a damage claim by the owner of the Home. Mr. Peck testified as to his belief that when damage occurs on a project under the control of a contractor, the contractor is responsible. 26. The weight of the evidence of record did not establish that Complainant caused the dome light to fall on the car or that the car was damaged as a result of Complainant’s work on the project. Consequently, Respondent‘s withholding the sum of $744.39 from Complainant was improper. 27. The Administrative Law Judge determines that Respondent owes Complainant the sum of $744.39, in accordance with the terms of the above- mentioned contract.

CONCLUSIONS OF LAW 1. The weight of the evidence of record established that Respondent violated the provisions of A.R.S. §32-1154(A)(7) and (11). 2. The weight of the evidence of record did not establish that Respondent is in violation of A.R.S. §32-1154(A)(21). RECOMMENDED ORDER Based on the above, it is recommended that Respondent’s Class K-42 license shall be suspended on the effective date of the Order entered in this matter until the Registrar of Contractors receives written proof that Respondent has paid or tendered to Complainant the sum of $744.39. It is further recommended that if on or before the effective date of the Order entered in this matter Respondent complies with the above, then the above-mentioned license suspension shall not take place and Case Number 01-300026 shall be closed. Done this day, November 20, 2001.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

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

By ___________________________

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