ALJDEC decisions subject to certification as final

07F-L0427-ROC · Registrar of Contractors · 2008-02-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 31, 2008. APPEARANCES: Lisa and Jason Schrotberger appeared personally. Flying W Ranch, Inc., doing business as Westbrook Brothers Construction Company, was represented by its corporate officer, Marie Carroll. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ At the commencement of the scheduled hearing, the parties agreed to amend the Citation and Complaint in this matter to reflect Jason Schrotberger as Co-Complainant. Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. Flying W. Ranch, Inc., doing business as Westbrook Brothers Construction Company (“Respondent”), is the holder of License No. 158375, a Class B- contracting license, issued by the Registrar of Contractors (“Registrar”). 2. Donald Joseph Carroll is named on Respondent’s contracting license. He was its qualifying party until he resigned on January 31, 2007. 3. On or about April 6, 2005, Jason and Lisa Schrotberger (“Complainants”) entered into a written agreement with Carroll and Bracale Construction Company, LLC, for the construction of a residence in Lake Havasu City, Arizona. 4. Carroll and Bracale Construction Company, LLC represented to Complainants that it was a licensed contractor. However, it was not licensed at the time the parties entered into their contract. 5. Complainants should have verified the license status of Carroll and Bracale Construction Company, LLC at the time of entering into the contract. 6. Carroll and Bracale Construction Company, LLC was issued License No. 206186 on May 3, 2005. Donald Joseph Carroll is listed as a member and qualifying party for that license. 7. There is no evidence that the Registrar was aware of the unlicensed contracting by Carroll and Bracale Construction Company, LLC at the time it issued License No. 206186. 8. The contract between Carroll and Bracale Construction Company, LLC and Complainants bears a signature for “Donnald [sic] Carroll” on behalf of the contractor. 9. The issue of whether or not Daniel Joseph Carroll signed the contract with Complainants is deemed moot. His subsequent actions and those of Carroll and Bracale Construction Company, LLC and Iron Gate Homes, LLC after the contract was executed confirm that those parties entered into a contract to build Complainants’ residence. 10. Complainants signed their loan documents in May, 2005, after Carroll and Bracale Construction Company, LLC received its contracting license. 11. The contract provided that the new residence would be completed within 210 days from the date the permit was pulled. The residence was not completed within that time frame. 12. Donald Joseph Carroll was Respondent’s qualifying party at the time Complainants and Carroll and Bacale Construction Company, LLC entered into their contract. 13. Work on Complainants’ project commenced after the issuance of the building permit on August 22, 2005. 14. On or about April 25, 2006, Donald Joseph Carroll accepted a written proposal from Accelerated Electric of Havasu, LLC. Respondent’s name and facsimile number appear on the facsimile header for the document. 15. On or about August 14, 2006, Mr. Carroll, on behalf of Carroll and Bracale Construction Company, LLC, executed an Unconditional Waiver and Release on Progress Payment included in Draw 16. The waiver contains the facsimile header containing Respondent’s business name and facsimile number. 16. A spread sheet and a draw request for Draw 17 contain Respondent’s name and facsimile number on the header of the documents. 17. On November 2, 2006, Carroll and Bracale Construction Company, LLC changed its name to Iron Gate Homes, LLC. 18. The facsimiles sent by Respondent’s fax machine were sent after Carroll and Bracale Construction Company, LLC received its contracting license. Donald Joseph Carroll’s wife, Marie, credibly testified that she used Respondent’s fax machine to send those documents. She is listed as a member of Iron Gate Homes, LLC, formerly Carroll and Bracale Construction Company, LLC, and Respondent’s secretary/treasurer. Respondent is her family’s business. 19. Although Daniel Joseph Carroll was listed as Respondent’s qualifying party, there is no credible evidence that Respondent is liable for the actions or inactions of Carroll and Bracale Construction Company, LLC or its successor, Iron Gate Homes, LLC. 20. Complainants previously filed a Complaint against Iron Gate Homes, LLC in Case No. L07-0276. The Registrar issued an Order revoking License No. 206186 held by Iron Gate Homes, LLC in that case. The revocation of License No. 206186 was effective on December 4, 2007.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainants have the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent did not violate the provisions of A.R.S. § 32-1154(A) (1), (7), (23), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B), as cited in the Citation and Complaint issued by the Registrar in Case No. L07-0427. Complainants contracted with Carroll and Bracale Construction Company, LLC prior to the issuance of its contracting license. After receiving its contracting license approximately one month after the parties executed their agreement, Carroll and Bracale Construction Company, LLC and its successor, Iron Gate Homes, LLC, performed work pursuant to the contract. The fact that Daniel Joseph Carroll also was listed on Respondent’s contracting license during the interval of the parties entering into their contract and the issuance of the contracting license to Carroll and Bracale Construction Company, LLC is not sufficient to hold Respondent accountable in this matter as cited by the Registrar.

RECOMMENDED ORDER

The Citation and Complaint in Case No. L07-0427 shall be dismissed on the effective date of the Order entered in this matter. In the event of certification of the 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 that certification.

Done this day, February 20, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ -----------------------

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