FINACT2018A-06016-ROC.pdf

2018A-06016-ROC · Registrar of Contractors · 2019-05-10

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Theresa M Conley Case No. 2018-06016 COMPLAINANT, Docket No. 2018A-06016- ROC v. Kelvin Lumpkins, FINAL ADMINISTRATIVE DECISION DBA: Sun Valley Roofing, AND ORDER License No. ROC 101059, 101064, RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. REGISTRAR’S ACCEPTANCE In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby accepts it. CONCLUSION Because the Registrar has accepted the administrative law judge’s decision, that decision is the final administrative decision in this case and becomes effective on June 18, 2019. FINAL NOTES On page 2, line 14 replace “February 19, 2015’ with “February 18, 2015”. On page 3, line 4 replace “January 10, 2019” with “December 24, 2018”. On page 3, line 18 replace “December 21, 2018” with “February 4, 2019”. On page 7, line 23 replace “insufficient” with “sufficient.” Replace all instances of “corrective work order” with “Directive”.

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $150.00,

payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be

hand-delivered to the Registrar’s physical address or mailed to:

Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748 Dated May 9, 2019. Registrar of Contractors /s/ Joseph Citelli Joseph Citelli, Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail May 9, 2019 to: Respondent Kelvin Lumpkins DBA: Sun Valley Roofing PO Box 3038 Sierra Vista, AZ 85636 Complainant Theresa M Conley 6255 E. Herder Court Hereford, AZ 85615

AND copy electronically mailed this same date to:

Respondent at email address on record with the Registrar Complainant at email address on record with the Registrar Office of Administrative Hearings Jenna Clark, Administrative Law Judge

Case No. 2018-06016/tw

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 4.26.2019 ROC LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Theresa M. Conley, No. 2018A-06016-ROC COMPLAINANT, ADMINISTRATIVE LAW JUDGE v. DECISION Kelvin Lumpkins, DBA: Sun Valley Roofing, ROC License: ROC 101059, 101064, RESPONDENT. HEARING: April 19, 2019 at 1:00 PM. APPEARANCES: Theresa Conley (“Complaint”) appeared on her own behalf. Oscar Gomez appeared on behalf of Sun Valley Roofing (“Respondent”). Norma Loreto and Estella Dodgson observed. ADMINISTRATIVE LAW JUDGE: Jenna Clark. _____________________________________________________________________ Having heard the evidence and testimony and having considered the record in

this matter, the undersigned Administrative Law Judge hereby makes the following

Findings of Fact and Conclusions of Law and issues the following RECOMMENDED

ORDER to the Director of the Arizona Registrar of Contractors (“ROC”).

FINDINGS OF FACT

BACKGROUND AND PROCEDURE

1. On February 22, 1994, the ROC issued License No. 101059 for specialty

dual CR-42 roofing contracting to Respondent.1 Respondent’s address of record for the

license is PO Box 3038 Sierra Vista, AZ 85363-3038.2 Kelvin Lumpkins is listed on the license as Qualifying Party and Owner.3 2. Administrative Notice is taken of Respondent’s prior License record, for License No. 101059, as reflected on the ROC’s public website on April 19, 2019. Such

See https://roc.az.gov/contractor-search?Id=a0Yt000000ACZLbEAP. 2 Id. Id. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 4.26.2019 ROC LEGAL

prior License record reflects that Respondent’s license is currently active.4 The license has not been previously disciplined by the ROC, but has had one case settle between the parties on one prior occasion.5 The record also reflects that there are five open

complaints against Respondent’s license, one of which is presumed to be related to

this matter.6 Respondent has an active $6,750.00 surety bond issued through Western

Surety Company effective January 07, 2007.7 Notably, the ROC issued License No.

101064, for specialty dual CR-42 roofing contracting, to Respondent on February 22,

1994, which was voluntarily cancelled by Respondent on April 15, 2015.8

3. On February 19, 2015, Complainant entered into a contract agreement

whereby Respondent agreed to re-roof Complainant’s residential property located at

2141 Lexington Drive Sierra Vista, AZ 85635 for the sum total of $14,625.00.9 The

project commenced on February 19, 2015. No project completion date was identified.

Complainant issued a down payment of $11,500.00 to Respondent via check on

February 19, 2015.10 Complainant issued a final payment of $3,125.00 to Respondent

via check on February 27, 2015.11

4. On December 18, 2018, the ROC received a workmanship complaint from

Complainant which included a copy of the contractual agreement between the parties.12 The ROC received proof of payment from Complainant on February 15, 2019.13 5. On or about December 24, 2018, the ROC issued a JOBSITE INSPECTION NOTIFICATION letter to the parties, advising that an onsite review would be conducted at the project site by an ROC investigator on January 10, 2019, at 10:30 a.m.14 6. On January 10, 2019, ROC investigator Mike Springer (“Investigator Springer”) conducted a review of the contract executed between the parties. Id. 5 Id. Id. 7 Id. See https://roc.az.gov/contractor-search?Id=a0Yt000000ACQi5EAH. See Hearing File, pages 21-22. See Hearing File, pages 26 and 32. See Hearing File, pages 26 and 33. See Hearing File, pages 21-28. See Hearing File, pages 31-34 14 See Hearing File, pages 81-82. RECEIVED 4.26.2019 ROC LEGAL

Investigator Springer also inspected the work that had been done on the project to date and took twelve photographs of the property.15 When he was finished, Investigator Springer drafted JOBSITE INSPECTION NOTES.16

7. On or about January 10, 2019, investigator Springer issued a W ARNING

LETTER to Respondent to advise that its contract with Complainant did not meet

statutory minimum elements in violation of ARIZ. REV. STAT. § 32-1158(A).17 Respondent

was further advised that failure to comply with ARIZ. REV. STAT. § 32-1158(A) was a

violation of ARIZ. REV. STAT. § 32-1154(A)(12), which could result in discipline against

Respondent’s license including suspension or revocation.18

8. On or about January 11, 2019, Investigator Springer issued a DIRECTIVE

FROM THE REGISTRAR to Respondent because he substantiated Complainant’s

allegation that Respondent’s work failed to meet minimum ROC workmanship

standards.19 Specifically, Respondent was ordered to remediate complaint items 1-3 via

appropriate means.20 Respondent was put on notice that it had until January 28, 2019,

to notify the ROC of its compliance with the corrective order or face discipline pursuant

to ARIZ. ADMIN. CODE R4-9-108, and ARIZ. REV. STAT. §§ 32-1154(A)(22) and 32-

1154(E).21 Respondent failed to timely comply. 9. On December 21, 2018, the ROC issued a CITATION AND COMPLAINT to Respondent for alleged violations of ARIZ. REV. STAT. §§ 32-1154(A)(3) and 32- 1154(A)(22), and ARIZ. ADMIN. CODE R4-9-108.22 Respondent was given until February 19, 2019, to respond with its ANSWER or face discipline pursuant to ARIZ. REV. STAT. §§ 32-1154(A)(22) and 32-1155.23 10. Respondent filed its ANSWER with the ROC on an unknown date.

See Hearing File, pages 96-107 16 See Hearing File, page 71. See Hearing File, pages 77-78. Id. See Hearing File, pages 69-70. Id. Id. See Hearing File, pages 37-43. 23 Id. RECEIVED 4.26.2019 ROC LEGAL

11. On February 19, 2019, the ROC referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on April 19, 2019.24 Per the NOTICE OF HEARING25 the issue to be determined is whether the

ROC has cause to discipline Respondent’s license based on the following charges:

Charge 1: A violation of Rule 4-9-108, titled “Minimum Construction Standards,” in the Arizona Administrative Code, and thereby of A.R.S. § 32-1154(A)(3). Charge 2: A violation of A.R.S. § 32-1154(A)(22) (“Failure 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. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of issuance of the directive.”). HEARING EVIDENCE 12. Complainant testified on her own behalf and submitted on exhibit. Oscar Gomez testified for Respondent. The ROC’s electronic hearing file and NOTICE OF HEARING were also admitted into the evidentiary record. Complainant’s testimony 13. Complainant testified that at all times relevant she was the owner of 2141 Lexington Drive Sierra Vista, AZ 85635. 14. Per Complainant, she discovered workmanship deficiencies in her roof in late-2018 after her husband passed and she decided to sell the property.26 During the inspection phase of the selling process it was discovered that several repairs needed to be made to the roof, at which point she reported her concerns to Respondent.27 15. Respondent performed an inspection of the flat portion of Complainant’s roof. Respondent agreed that three repairs needed to be made within the area.

See Hearing File, pages 1-2. See NOTICE OF HEARING. See Complainant Exhibit A-10. 27 See Complainant Exhibit A-1. RECEIVED 4.26.2019 ROC LEGAL

16. Complainant testified that per Respondent’s request she paid $500.00 maintenance fee on June 18, 2018, so that repairs could be made, as her home was still on the market for sale.28

17. Complainant testified that prior to Respondent attempting to make repairs,

a home-buying inspection took place and the inspector noted that the roof was in need

of repair.

18. Complainant testified that although Respondent had agreed to perform

the repairs that she had requested, the work was not done. Because time was of the

essence, as her home was pending sale, she filed a complaint with the ROC on

December 14, 2018.

19. Per Complainant, although the ROC substantiated her allegations of poor

workmanship against Respondent, Respondent failed to adhere to the resulting

DIRECTIVE.

20. Complainant denied that there was ever a denial of access, but noted that

she sold the property on or about January 29, 2019, and no remediation efforts were

made by that date.

Mr. Gomez’s testimony 21. Mr. Gomez testified that he has been listed on ROC License No. 101059 as a Qualifying Party for the last eleven years, and has worked for Respondent for the last forty years. 22. Per Mr. Gomez, he was directly involved with Complainant’s project. 23. Mr. Gomez admitted that he was in receipt of the ROC’s DIRECTIVE, and testified that he failed to comply because ran out of time. Mr. Gomez agreed that he did not ask the ROC or Complainant for additional time to comply with the DIRECTIVE. 24. Mr. Gomez offered his apologies to Complainant. CONCLUSIONS OF LAW 1. The ROC has jurisdiction over this matter pursuant to ARIZ. REV. STAT. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to ARIZ. REV. STAT. §§ 41-1092 et seq. See Hearing File, page 34. 5 RECEIVED 4.26.2019 ROC LEGAL

2. The ROC may resolve contractual disputes if such resolution in ancillary to its regulatory mission and may penalize a contractor’s license by ordering payment of restitution if a proven statutory violation was not remedied by corrective action.29

3. The purpose of the ROC’s licensing statutes is to protect the public from

unscrupulous, unqualified, and financially irresponsible contractors.30

4. Complainant bears the burden of proof to establish cause to discipline

Respondent’s license by a preponderance of the evidence.31 Respondent bears the

burden to establish factors in mitigation of the penalty and affirmative defenses by the

same evidentiary standard.32

5. “A preponderance of the evidence is such proof as convinces the trier of

fact that the contention is more probably true than not.”33 A preponderance of the

evidence is “[t]he greater weight of the evidence, not necessarily established by the

greater number of witnesses testifying to a fact but by evidence that has the most

convincing force; superior evidentiary weight that, though not sufficient to free the mind

wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to

one side of the issue rather than the other.”34

6. ARIZ. ADMIN. CODE 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.” 7. ARIZ. REV. STAT. § 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.” 8. ARIZ. REV. STAT. § 32-1154(A)(22) holds, in pertinent part, that “[a] holder of a license may not fail to take appropriate corrective action to comply with this chapter or rules adopted pursuant to this chapter without valid justification within a reasonable See ARIZ. REV. STAT. § 32-1156.01; Sunpower of Arizona v. Arizona Registrar of Contractors, 166 Ariz. 437, 441, 803 P.2d 430, 434 (App. 1990). See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). ARIZ. REV. STAT. § 41-1092.07(G)(2); ARIZ. ADMIN. CODE R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). See ARIZ. ADMIN. CODE R2-19-119(B)(2). 33 MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). RECEIVED 4.26.2019 ROC LEGAL

period of time after receiving a written directive from the registrar. The written directive shall set forth the time within which the contractor is to complete the remedial action. The time permitted for compliance shall not be less than fifteen days from the date of

issuance of the directive. A license shall not be revoked or suspended nor shall any

other penalty be imposed for a violation of this paragraph until after a hearing has been

held. The ROC has the authority to issue license discipline under this provision,

including summary suspension, revocation, or imposing a civil penalty or recovery fund

award.”

9. ARIZ. REV. STAT. § 32-1154(E) holds, in pertinent parts, that the ROC may

“[i]mpose a civil penalty not to exceed five hundred dollars on a contractor for each

violation. The failure by the licensee to pay any civil penalty imposed results in the

automatic revocation of the license thirty days after the effective date of the order

providing for the civil penalty. It also holds that no future license may be issued to an

entity consisting of a person who is associated with the contractor, unless payment of

any outstanding civil penalty is tendered.”

10. Here, the material facts are not in dispute. It is undisputed that

Complainant contracted with Respondent for a residential roofing project that Complainant paid the agreed upon fees for Respondent’s services/maintenance and materials, and the work that Respondent completed fell below the ROC’s minimum workmanship standards. It is further undisputed that the ROC issued its DIRECTIVE to Respondent on January 11, 2019, and required Respondent’s full compliance by January 28, 2019. It is also undisputed that Respondent failed to comply. There are insufficient facts in the record to conclude that Respondent violated ARIZ. REV. STAT. §§ 32-1154(A)(3), 32-1154(A)(22), and ARIZ. ADMIN. CODE R4-9-108 by a preponderance of the evidence. 11. Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to timely and completely finish Complainant’s project per contract. This is an affirmative defense that Respondent bears the burden to establish. Respondent did not provide evidence in mitigation to refute Complainant’s BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). RECEIVED 4.26.2019 ROC LEGAL

evidence or justify his inaction in this matter. Thus, his burden has not been sustained. The record shows that Respondent failed to adhere to an ROC corrective work order, and had no affirmative defense(s) for doing so.

12. Because Complainant established by a preponderance of the evidence

that Respondent failed to perform the scope of work included in her signed and paid for

contract with Respondent, Complainant has also established cause for the ROC to

suspend or revoke Respondent’s contractor’s license under ARIZ. REV. STAT. § 32-

1154(A)(22).

13. Complainant may petition the ROC’s Recovery Fund for financial

recompense regarding this matter, as the Tribunal has no jurisdiction to award a refund

of the underlying amount contracted between the parties.

RECOMMENDED ORDER

Based on the foregoing findings of fact and conclusions of law,

IT IS RECOMMENDED that on the effective date of the FINAL ORDER in this matter Respondent Sun Valley Roofing, ROC License No. 101059 shall be suspended for three (3) business days. IT IS FURTHER RECOMMENDED that the ROC require Respondent to pay the sum total of $150.00 as a civil penalty pursuant to ARIZ. REV. STAT. § 32-1154(E). IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the ROC’s Order, the ROC revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in ARIZ. REV. STAT. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior 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, April 26, 2019.

/s/ Jenna Clark RECEIVED 4.26.2019 ROC LEGAL

Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors