ALJDEC decisions subject to certification as final

2011A-2948-ROC · Registrar of Contractors · 2011-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 20, 2011 APPEARANCES: James and Karen Worden appeared personally. A Ability Company, Inc. was represented by its authorized representative, Jason Brouwer. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ 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. A Ability Company, Inc. (“Respondent”) is the holder of License No. 271063, a Class C-42 contracting license issued by the Registrar of Contractors (“Registrar”). 2. On January 22, 2011, Jim Worden, on behalf of himself and his wife, Karen Worden (“Complainants”), executed a written Agreement with A Ability Roofing Company, the holder of License No. 124650, for roofing work at Complainants’ residence located at 214 West Bethany Home Road, Phoenix, Arizona. Complainants’ residence had sustained hail damage in a storm. 3. During the parties’ negotiations, Complainants were given A Ability Roofing Co. business cards for Don and Vicki Thompson, who were identified as roof consultants, and Jason L. Brouwer, as sales/general manager. Neither of the business cards listed a Registrar-issued contractor’s license number. 4. On March 9, 2011, Mr. Worden, on behalf of himself and his wife, and A Ability Roofing Company executed a second Agreement for roofing work on Complainants’ shed and a patio cover. The second Agreement lists the contractor’s license as “Arizona License # 124650.” 5. Neither the first nor second Agreement contains the minimum elements of a contract. For example, there are no stated commencement or completion dates, as required by statute. 6. On May 19, 2011, Complainants filed a written Complaint against Respondent, alleging statutory and regulatory violations by Respondent. The Registrar designated the Complaint as Case No. 2011- 2948. 7. The Registrar issued a Citation and Complaint in Case No. 2011-2948, charging Respondent with violating the provisions of A.R.S. § 32- 1154(A) (3), namely A.A.C. R4-9-108, (13), specifically A.R.S. § 32- 1158, (15), (17), and (20). 8. The Registrar forwarded Case No. 2011-2948 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 9. A Ability Roofing Co., the holder of License No. 124650, was a sole proprietorship of Fred James Peters. That license was suspended by operation of law for lack of bond from July 7, 2010 to December 9, 2010. The license was suspended for lack of a qualifying party on January 18, 2011. 10. Mr. Peters died sometime prior to December 2010. Therefore, A Ability Roofing Co. could not do business after his death, since he was a sole proprietorship. 11. The Gopher Company, Inc. (“Gopher”) is a roofing company from Minnesota. 12. On December 6, 2010, Gopher’s principal, Jason L. Brouwer, came to Arizona to search for employment in sales of roof contracting. Mr. Brouwer contacted A Ability Roofing Co. and spoke to Mr. Peters’ widow. Mr. Brouwer and Mrs. Peters entered into an agreement for Mr. Brouwer to work for A Ability Roofing Co. and to have the bond reinstated. 13. On December 9, 2010, Gopher submitted a cashier’s check in the amount of $1,000.00 to the Registrar as a bond to reinstate Mr. Peters’ License No. 124650. 14. Mr. Brouwer had approximately 21 contracts for A Ability Roofing Co. when License No. 124650 was suspended for lack of qualifying party. Mr. Brouwer decided to become licensed as Respondent[1] to fulfill those contracts. 15. On February 28, 2011, Respondent obtained its Class C-42 contracting license. 16. Respondent advertised that it also had a Class L-42 contracting license, but it had never obtained such a license. 17. Respondent also advertised customer endorsements that appear to be from Respondent’s customers, but those glowing endorsements came from customers of Gopher, in Minnesota. 18. The evidence of record established that Respondent billed Complainants’ insurance carrier for painting and dry wall work, but that work was not performed by Respondent. 19. Respondent performed the work on Complainants’ projects contracted under A Ability Co.’s License No. 124650. Even though Respondent’s License No. 271063 was issued on February 28, 2011, it contracted with Complainants using A Ability Co.’s License No. 124650 instead of its own Class C-42. 20. Respondent performed work on Complainants’ patio awning that exceeded the scope of its C-42 contracting license. Such work requires a Class C-3 license. 21. On August 30, 2011, A Ability Co.’s License No. 124650 was revoked in a disciplinary action. 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), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). 3. Respondent violated the provisions of A.R.S. § 32-1154(A) (13), specifically A.R.S. § 32-1158, as charged in the Citation and Complaint issued by the Registrar. Respondent failed to give Complainants notice that Respondent was performing work under the contracts executed with A Ability Roofing Co. and its contracting license. Respondent failed to contract with Complainants in its own name and with its own contracting license number when it entered into the March 9, 2011 contract. The contracts also fail to contain the minimum elements of a contract required by the statute. 4. Respondent violated the provisions of A.R.S. § 32-1154(A) (15), as charged in the Citation and Complaint issued by the Registrar. Respondent contracted with Complainants as A Ability Roofing Co. under License No. 124650. 5. Respondent violated the provisions of A.R.S. § 32-1154(A) (17), as charged in the Citation and Complaint issued by the Registrar. Respondent contracted and performed work on Complainant’s patio awning that was beyond the scope of its Class C-42 contracting license. 6. Respondent violated the provisions of A.R.S. § 32-1154(A) (3), namely A.A.C. R4-9-108, as charged in the Citation and Complaint issued by the Registrar. Respondent billed Complainants’ insurance carrier for painting and dry wall work, but it never performed that scope of work. 7. Pursuant to A.R.S. § 32-1154(A) (20), Respondent’s conduct described in the above-provided Findings of Fact would have been grounds to deny Respondent application for licensure if such actions had been known to the Registrar at the time of the issuance of Respondent’s Class C-42 contracting license. RECOMMENDED ORDER Respondent’s License No. 271063 shall be revoked on the effective date of the Order entered in Case No. 2011-2948. 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, November 9, 2011. /s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Mr. Brouwer is Respondent’s qualifying party and corporate officer.

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