ALJDEC decisions subject to certification as final

2011A-6755-ROC · Registrar of Contractors · 2012-04-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 27, 2012, at 1:00 p.m. APPEARANCES: Complainant appeared on his own behalf. Respondent appeared through its attorney, Edward H. Britt Esq., Britt Law Group, P.C. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of License No. K-42.265407-D issued by the Registrar of Contractors. 2. This is a residential matter where Complainant suffered storm damage to his roof and was contacted by an entity identified as Countrywide Shingle which submitted a bid for the correction of Complainant’s roof. 3. Countrywide Shingle utilized Respondent’s license number and presented itself to Complainant as a licensed contractor in the State of Arizona. 4. Complainant accepted the bid and entered into a construction agreement with Countrywide Shingle for the repair of the damaged roof for the total sum of $6,628.49. 5. There was no dispute that the construction agreement at issue failed to contain the minimum elements of a contract as required by A.R.S. § 32- 1158. 6. Pursuant to the terms of the construction agreement, Complainant paid Countrywide Shingle the sum of $4,202.32 as a down payment for the agreed upon roof repair work. 7. When Countrywide Shingle failed to perform the agreed upon roof repair work within the time period set forth in the construction agreement, Complainant contacted Countrywide Shingle and demanded his money back. Countrywide Shingle agreed to return Complainant’s down payment within twenty (20) days, less ten percent for its alleged administrative costs. 8. When Countrywide Shingle failed to return the money as promised, Complaint filed a formal complaint against Countrywide Shingle with the Registrar of Contractors. 9. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector reviewed the matter and discovered that the contractor’s license number utilized in this matter belonged to Respondent and processed the complaint against Respondent’s License. 10. Respondent refused to comply with the terms of the Complainant’s construction agreement and denied any responsibility for the performance of the agreed upon construction work on Complainant’s roof. 11. There was no dispute that on January 1, 2011, Respondent entered into a license agreement with an unlicensed entity, identified as Countrywide Shingle & Siding LLC, wherein Respondent paid Countrywide Shingle & Siding LLC the sum of $100.00 so that Respondent could do business under the name “Countrywide Shingle”. 12. There was no dispute that Respondent also entered into a fee agreement with Countrywide Shingle & Siding, LLC wherein Respondent agreed to combine with Countrywide Shingle & Siding LLC and enter into combined construction agreements with homeowners in the State of Arizona for roof removal, repair and replacement work. 13. Respondent agreed to perform all necessary roof construction work for an agreed upon sum per roofing square, and Countrywide Shingle and Siding, LLC agreed to solicit work from homeowners and to provide all necessary roofing materials and equipment. 14. There was no dispute that Countrywide Shingle and Siding LLC is not a licensed contractor in the State of Arizona. 15. Credible testimony and evidence established that Respondent knowingly and recklessly assisted an unlicensed entity to enter into a construction agreement with Complainant and then abandoned the construction project and refused to perform the agreed upon construction work on Complainant’s roof. 16. Respondent is found to be fully responsible for the actions of the unlicensed entity that Respondent knowingly and recklessly combined with in effort to evade the state’s contracting laws. 17. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar of Contractors’ public website on April 12, 2012. Such prior License reflects that License No. K-42.265407-D of Foresight Roofing LLC dba Countrywide Shingle was revoked on February 6, 2012, revoked on February 27, 2012, and revoked on February 28, 2012. 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 this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990). 3. Credible testimony and evidence supported findings which establish violations by Respondent of the charged provisions of A.R.S. § 32- 1154(A)(1)(abandonment or refusal to perform without legal excuse), and A.R.S. § 32-1154(A)(13), namely, A.R.S. § 32-1158 (minimum elements of a contract). RECOMMENDed order In view of the foregoing, it is recommended that License No. K- 42.265407-D of Foresight Roofing LLC dba Countrywide Shingle be revoked. 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, April 16, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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