FINACT2018A-05877-ROC.pdf

2018A-05877-ROC · Registrar of Contractors · 2019-05-22

RECEIVED 5/6/2019 State of Arizona Mail - New ALJ Decision transmitted for ROC (2018A-05877-ROC) 5.6.2019 ROC LEGAL OAH ALJ Recommendations - AZROC <[email redacted]> New ALJ Decision transmitted for ROC (2018A-05877-ROC) message OAH Electronic Decision Transmission System <[email redacted]> Mon, May 6, 2019 at 8:29 AM To: [email redacted] This is a message from the Arizona Office of Administrative Hearings to inform you that a decision has been transmitted for Registrar of Contractors. The details are as follows: Decision type: ALJ Decision Matter ID: 2018A-05877-ROC Filed by: OAH Filed on: 5/6/2019 Due Date for Final Agency Action (if applicable): 6/10/2019 You may access this decision at https://portal.azoah.com/aljdec/documents/ROC/2018A-05877-ROC-ALJDecision- 6219.pdf. To view all available ALJ decisions, visit https://portal.azoah.com/aljdec/documents/ROC/. This message is confidential and intended only for the named recipient(s). This message may contain information that is privileged, attorney work product or exempt from disclosure under applicable law. If you are not the intended recipient(s), you are notified that reading, disseminating, distributing or copying this message is strictly prohibited. If you have received this message in error or are not the named recipient, please notify the sender by telephone, facsimile or e-mail and delete this message from your computer. Receipt by anyone other than the named recipient(s) is not a waiver of any attorney-client, work product or other applicable privilege. https://mail.google.com/mail/b/AH1rexTMnQEeOSti1f9v0A0DOTfxJdPfoTJ4Cta-pjEWbySoHZrR/u/0?ik=5d3b7d39d0&view=pt&search=all&permthid=t… 1/1 RECEIVED 5.6.2019 ROC LEGAL IN THE OFFICE OF ADMINISTRATIVE HEARINGS David Ferdinand West, No. 2018A-05877-ROC COMPLAINANT ADMINISTRATIVE LAW JUDGE v. DECISION Kelvin Lumpkins, d/b/a Sun Valley Roofing, License No. ROC 101059, RESPONDENT HEARING: April 18, 2019. APPEARANCES: David and Cynthia West, Complainants, Oscar Gomez, Qualifying Party and Respondent, Mike Springer, ROC Investigator. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson FINDINGS OF FACT 1. Respondent Kelvin Lumpkins, d/b/a Sun Valley Roofing. (hereinafter,“Sun Valley”) is the holder of License Number ROC 101059 issued by the Arizona Registrar of Contractors (Registrar).1 2. Complainant David Ferdinand West (hereinafter, "West") purchased his manufactured home [the “Premises”] from seller Thomas Wright II. Prior to the purchase of Mr. West, Mr. Wright engaged Sun Valley to re-roof the Premises. In January of 2017, Sun Valley replaced the Premises roof. After the Sun Valley roof installation, the roof suffered ongoing leaking resulting in interior drywall damage to the Premises.2 3. On or about December 10, 2018, West filed a Complaint with the Registrar against Sun Valley alleging Sun Valley’s poor workmanship. Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website. See, Complaint, Agency Record, page 35 and Inspector Springer’s JSI Notes at Agency Record, page 8. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 5.6.2019 ROC LEGAL 4. The Registrar assigned the complaint to Investigator Mike Springer. On or about January 7, 2019 Investigator Springer conducted a jobsite inspection [the “JSI”].3 According to his JSI Notes, Investigator Springer Notes,4 he stated: Roof is leaking at the peak of the roof and running down to the outside walls towards the East side of the house. Drywall is damaged in numerous areas throughout the East side of the house. The floor under the dining area is damaged But I cannot substantiate whether this was from the roof leaks or not. 5. On January 7, 2019, Investigator Springer issued a Written Directive along with a Corrective Work Order [CWO] to Sun Valley that provided as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-l 08). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1 l 54(A)(22) and may result in the issuance of a Citation, discipline of your license, and a civil penalty pursuant to A.R.S. § 32- l l 54(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license, You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on January 29, 2019. [emphasis in original] You are hereby directed to remedy the following violations by the appropriate means: Complaint Item 1: Since purchase of our house, we have experienced high rain volume and have experienced leaks in the roof, to where buckets had to be placed under the leaks to try to protect the flooring. I, David F. West, have called Sun Valley Roofing, I have even went and waited at their front gate numerous times, trying get someone out to fix the roof. This neglect on this company's behalf has caused massive damage to the inside of my home. The Owner of the roofing said, "That's not his problem." I have only lived in this house for 10 months, now it is not even worth the money I am paying for it. No other roofing company will touch my roof because it is under warranty. The roof has only been on the home for one year and 11 months. I have other contractors on hold, due to the failure of the roof not being right. Correct roof leaks and drywall damage to ceiling. Registrar has determined that any workmanship violations alleged in the 3 In his testimony at hearing, Inspector Springer stated that he provided notice by mail for the JSI date and time to both parties. He testified that the Complainant appeared at the JSI, the Respondent did not. See, “Job Inspection Notes, Agency Record, page 8, Agency Record, page 8, supra. RECEIVED 5.6.2019 ROC LEGAL complaint but not listed above are unsubstantiated and do not require corrective action. 6. Following the issuance of the written directive, Sun Valley failed or refused to comply with the CWO on or before the stated compliance date of 5:00 p.m. on January 29, 2019. 7. On February 1, 2019, the Registrar issued a Citation against Sun Valley charging possible violations of A.R.S. § 32-l154 (A)(3) - R4-9-1085 and A.R.S. § 32-l154 (A)(22). 6 8. On April 18, 2019, a hearing was conducted before the Office of Administrative Hearings, an independent agency from the Registrar. 9. Investigator Springer testified consistent with his JSI Notes7 and added that at the JSI he noted that “…the roof leaked causing damage to the sheet rock, there were large bubbles in the paint where water had compromised the sheet rock’s paint where water had been leaking and there were holes in the sheet rock where water had been draining from the roof. It was Inspector Springer’s position that the leaking roof installed by Sun Valley constituted below standard workmanship. He had determined that based upon his experience and training, the damages he identified were the result of roof leaks from the roof installed by Sun Valley. Inspector Springer stated that he had a telephone conversation with West April 15, 2019 who advised that literally no work had been attempted by Sun Valley to repair the roof since the Job Site Inspection was done on January 7, 2019. Mr. Springer advised that according to Registrar records, Sun Valley has at least two8 other separate, pending unresolved Complaints. 10. Complainant West testified that after taking possession of his manufactured home, leaking from the roof resulted in visible wall cracks, sagging paint around his A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.” A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” 6 A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.” (Emphasis added). 7 “Job Inspection Notes,” Agency Record, page 8, supra. The ALJ’s review of the Registrar’s Public Access Website confirms that other than the instant case, Sun Valley has not two, but five additional, separate pending Complaints against its license. RECEIVED 5.6.2019 ROC LEGAL windows, stains and damage to the dining room ceiling, floor sagging and stains on the ceiling of the Master Bedroom. Mr. West testified that roofer Sun Valley failed or refused to respond to his repeated demands that the roof be fixed and the damage caused by the roof leaks of the roof that Sun Valley replaced. Mr. West stated that he was told by Oscar Gomez [Sun Valley’s Qualifying Party] that they have no responsibility for his interior damages. Mr. West stated that Sun Valley consistently refused to return his telephone calls. He said that he sat out front of Sun Valley’s place of business over 100 times in order to speak with a responsible agent or employee but was not successful. 11. Sun Valley’s only witness was its Oscar Gomez.9 Mr. Gomez testified that he performed and supervised the work performed on West’s roof. Mr. Gomez testified that “I admit I did not comply with the Directive.” He stated that he “…corrected one leak and he thought that it was the only leak.” Mr. Gomez offered no other testimony and offered no exhibits. In closing argument, Mr. Gomez only stated that “I will do whatever the Registrar orders.” 12. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s Public Access Website on May 4, 2019. Such prior License record reflects that Respondent’s License Number 101059 was first issued on February 22, 1994 and as of May 4, 2019 the license is current. The Registrar indicates that in addition to the West Compliant, five other separate Complaints against Sun Valley have been filed and are unresolved. 13. That Respondent failed to appear for the JSI, failed to timely comply with the CWO and its Sun Valley’s current license Complaint records are each aggravating circumstances. There are no mitigating circumstances. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. Without explanation, Qualifying Party Kelvin Lumpkins did not appear or testify at the hearing. RECEIVED 5.6.2019 ROC LEGAL R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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. As to the issue of poor workmanship, the evidence established by a preponderance of the evidence that the roof installation by Sun Valley at the West residence was below workmanship standards contrary to A.A.C. R4-9-108. Thus, Complainant established that Respondent performed work that failed to meet minimum acceptable trade or industry standards or practices or was not performed in a good and workmanlike manner in violation of A.A.C. R4-9-108, and thereby of A.R.S. § 32- 1154(A)(3). 4. By a preponderance of the evidence, Complaint West established that Respondent Sun Valley violated A.R.S. § 32-1154(A)(22). 5. A.C.C. R4-9-131 provides for the assessment of a civil penalty against a licensee. In assessing a civil penalty as provided for under A.R.S. § 32-1166(A), the Registrar shall give due consideration to whether the person cited or any individual acting on that person's behalf has committed one or more of the following acts in determining the gravity of the cited violation: …. 8. Performed work that failed to meet minimum acceptable trade or industry standards or practices or was not performed in a good and workmanlike manner…. 11. Performed work that has caused loss or damage to the structure, its appurtenances, or property being worked upon or has caused loss or injury to any person. 6. Inasmuch as Respondent Sun Valley has been shown by a preponderance of the evidence to have performed work that failed to meet minimum acceptable trade or industry standards and performed work in this case that caused loss and damage to the West property that Sun Valley work upon, a civil penalty of not less than $500.00 is appropriate. RECEIVED 5.6.2019 ROC LEGAL RECOMMENDED ORDER Based on the foregoing, IT IS RECOMMENDED that on the effective date of the Order, the Registrar shall suspend Respondent Kelvin Lumpkins, d/b/a Sun Valley Roofing’s license number ROC 101059 for a period of five (5) days. FURTHER IT IS RECOMMENDED that a civil penalty in the amount of Five Hundred Dollars ($500.00) be assessed against Respondent Kelvin Lumpkins, d/b/a Sun Valley Roofing’s license number ROC 101059 FURTHER IT IS RECOMMENDED that if Respondent Kelvin Lumpkins, d/b/a Sun Valley Roofing fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s Order, the Registrar revoke Respondent Kelvin Lumpkins, d/b/a Sun Valley Roofing’s license number ROC 101059, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent Kelvin Lumpkins, d/b/a Sun Valley Roofing, as defined in A.R.S. § 32-1101(A)(5), unless Respondent Kelvin Lumpkins, d/b/a Sun Valley Roofing tenders payment of any outstanding civil penalty. 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, May 4, 2019. /s/Randolph D. Wolfson Administrative Law Judge Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors