ALJDEC decisions subject to certification as final

2019A-00868-NPC-ROC · Registrar of Contractors · 2019-06-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 11, 2019, at 8:30 a.m. APPEARANCES: Roofline Supply & Delivery (“Complainant”) failed to appear; Kelvin Lumpkins DBA: Sun Valley Roofing (“Respondent”) appeared through Oscar Gomez, its qualifying party/owner. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

FINDINGS OF FACT On or about February 22, 1994, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC 101059 for Specialty Dual CR-42 Roofing to Respondent. Complainant is a supplier of roofing materials. On February 22, 2019, Complainant filed a non-payment complaint with the Registrar against Respondent, alleging that it owed a total of $15,595.07 for various roofing jobs in southeast Arizona. Complainant provided its address as 2110 E. 19th St., Tucson, Arizona 85719. On March 15, 2019, the Registrar issued a Citation for Alleged Violation of A.R.S. § 32-1154(A)(10) against Respondent.[1] Respondent filed a timely written answer to the Citation and Complaint. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On April 19, 2019, the Registrar issued a Notice of Hearing, setting a videoconference hearing on June 11, 2019, at 8:30 a.m. at the Registrar’s office in Tucson, Arizona. The Registrar mailed a copy of the Notice of Hearing to Complainant at the address on its complaint. Respondent’s representative appeared for the duly noticed hearing. Complainant did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed thirty minutes to allow Complainant additional travel time, Complainant did not appear, through a duly authorized employee or an attorney, and did not contact OAH to request that the start of the hearing be further delayed. Consequently, Complainant did not present any evidence to prosecute its complaint against Respondent. CONCLUSIONS OF LAW This dispute lies within the Registrar’s jurisdiction to resolve.[2] Because the Notice of Hearing that the Registrar mailed to the address on Complainant’s complaint was reasonable, Complainant is deemed to have received notice of the hearing.[3] Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence.[4] Complainant’s failure to appear at the duly noticed hearing or to offer any evidence to prosecute its complaint precludes a finding that Respondent violated A.R.S. § 32-1154(A)(10). / / / / RECOMMENDED ORDER Based on the foregoing, it is ordered that, on the effective date of the final order in this matter, Case No. 2019-00868 against Respondent Kelvin Lumpkins DBA: Sun Valley Roofing’s License No. ROC 101059 shall be dismissed. 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 five days from the date of that certification. Done this day, June 11, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] A.R.S. § 32-1154(A)(10) includes among the grounds to suspend or revoke a contractor’s license, “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay . . . .” [2] See A.R.S. § 32-1101 et seq. [3] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826