ALJDEC decisions subject to certification as final

2016A-799-ROC · Registrar of Contractors · 2016-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 8, 2016 APPEARANCES: Jerry L. Brown, president of WRECORP, appeared on behalf of Complainant. No one appeared on behalf of Michael John Murphy dba Mike Murphy Roofing. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT 1. Michael John Murphy dba Mike Murphy Roofing (Respondent) is the holder of License Nos. 086191, 261853, and 274308 issued by the Registrar of Contractors (Registrar). 2. WRECORP (Complainant) filed a complaint against Respondent with the Registrar alleging that Respondent had failed to pay Complainant the total sum of $750.00 for a roof evaluation it completed at Respondent’s request. 3. 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). 4. Respondent failed to appear at the time scheduled for hearing and did not request to appear telephonically. After the expiration of a 20 minute grace period, the Administrative Law Judge conducted the hearing in Respondent’s absence. 5. Jerry L. Brown offered the only testimony in this matter. He indicated that on December 15, 2014, Respondent telephoned him while he was driving to request that Complainant provide an expert evaluation of a roof. Brown stated he told Respondent that he had a backlog of two or three weeks, was informed that was not a problem, and requested that Respondent email the exact address of the roof to be inspected so the parties could meet there to determine if Complainant could provide a helpful evaluation. 6. Respondent did not email the address to Complainant until January 7, 2015. The parties subsequently met at the home with the consent of the homeowner on January 25, 2015. 7. Complainant determined that it could provide a helpful evaluation for Respondent and on January 25, 2015, sent Respondent a proposal to provide a report for the fee of $750.00. Respondent signed the proposal. 8. On February 4, 2015, Complainant sent Respondent a report dated February 1, 2015, detailing damage to the roof. Complainant also sent Respondent an invoice dated February 4, 2015, for $750.00. 9. Respondent did not pay the invoice. 10. In its answer to the complaint, Respondent argued that Complainant’s delay in performing its evaluation and producing its report caused the homeowner to obtain a different expert opinion and resulted in Respondent not obtaining the homeowner’s roof repair project. For those reasons, he did not believe Respondent owed Complainant any money. 11. Brown acknowledged that the invoice in question did not exceed $750.00, but said that he believed that Complainant was also owed interest, which it would have been willing to forgo if Respondent had just paid the amount of the invoice. Complainant did not specify the amount of the claimed interest. 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. (Emphasis added).

4. The evidence established that Respondent does not owe Complainant an amount in excess of $750.00 for materials or services. The unspecified interest amount is not for materials or services and is, therefore, not applicable and not recoverable in this forum. 5. Complainant has accordingly failed to prove a violation of A.R.S. §32- 1154(A)(10). 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, June 8, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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