FINACT2019A-01014-ROC.pdf

2019A-01014-CHC-ROC · Registrar of Contractors · 2019-08-16

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Benjamin Henry Dragoo, Case No. 2019-01014 COMPLAINANT, Docket No. 2019A-01014-CHC-ROC v. FINAL ADMINISTRATIVE DECISION AND ORDER Kelvin Lumpkins, DBA: Sun Valley Roofing, License No. ROC 101059, 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 September 21, 2019.

IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $500.00 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

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 FINAL NOTE

• On page one, line 10, “her” should be replaced with “his.”

• On page one, line 21, “four” should be replaced with “three.”

• On page one, line 25, “2007” should be replaced with “2000.”

• One page two, line five, “1774” should be replaced with “1744.”

• On page two, line 27, “1-8” should be replaced with “two through four, six, nine, 10, and 13.”

• On page three, line three, “17” should be replaced with “18.”

• On page three, line seven, “an unknown date” should be replaced with “May 3, 2019.”

• On page three, line 24, “1774” should be replaced with “1744.”

• On page four, line 11, between “but” and “limited” should be “not.”

• On page seven, line seven, “violation” should be followed by “of subsection A, paragraph 22 of

this section.”

• On page seven, line 18, “insufficient” should be replaced with “sufficient.”

Dated August 12, 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 August 12, 2019 to: Respondent Kelvin Lumpkins DBA: Sun Valley Roofing PO Box 3038 Sierra Vista, AZ 85636 Complainant Benjamin Henry Dragoo 1774 C Paseo De La Luna Sierra Vista, AZ 85635

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Complainant’s Attorney Joel P. Borowiec, Esq. Borowiec & Borowiec PC 1723 S Highway 92 Sierra Vista, AZ 85635 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 Complainant’s Attorney at email address of record with Registrar Office of Administrative Hearings Antara Nath Rivera, Administrative Law Judge Case No. 2019-01014 / KR

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Received 7/29/2019 ROC Legal IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Benjamin Henry Dragoo, No. 2019A-01014-CHC-ROC COMPLAINANT v. ADMINISTRATIVE LAW JUDGE DECISION Kelvin Lumpkins, DBA: Sun Valley Roofing ROC License: ROC 101059 RESPONDENT

HEARING: July 9, 2019 APPEARANCES: Benjamin Henry Dragoo (“Complaint”) appeared on her own behalf. Oscar Gomez appeared on behalf of Sun Valley Roofing (“Respondent”). ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ FINDINGS OF FACT 1. On February 22, 1994, the ROC issued License No. 101059 for specialty dual CR-42 roofing contracting to Sun Valley Roofing (“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 July 9, 2019. Such prior License record reflects that Respondent’s license is currently active.4 The license has been disciplined by the ROC on four cases and has had one case settle between the parties on one prior occasion.5 The record also reflects that there are two 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.

See https://roc.az.gov/contractor-search?Id=a0Yt000000ACZLbEAP. Id. Id. Id. Id. 6 Id. Id. Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 Received 7/29/2019 ROC Legal 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 May 18, 2018, Benjamin Henry Dragoo (“Complainant”) entered into

the first contract agreement whereby Respondent agreed to re-roof Complainant’s

residential property located at 1774 C Paseo De La Luna, Sierra Vista, AZ 85635 for

the sum total of $6,500. On July 8, 2018, Complainant entered into a second contract

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

for the sum total of $11,900.00. The second contract was created as a result of an error

committed by Respondent. The project commenced on July 5, 2018. No project

completion date was identified. Complainant paid Respondent a total $5,900.00 by the

time Respondent stopped working on the date of January 10, 2019.

4. On March 1, 2019, the ROC received a workmanship complaint from

Complainant which included a copy of the contractual agreement between the parties.

The ROC received proof of balance due from Complainant.

5. Between March 1, 2019 and March 26, 2019, the ROC issued a Jobsite

Inspection Notification letter to the parties, providing proper notice to them, and

advising that an onsite review would be conducted at the project site by an ROC investigator on March 27, 2019, at 10:00 a.m. 6. On March 27, 2019, ROC investigator Mike Springer (“Investigator Springer”) conducted a review of the contract executed between the parties. Investigator Springer also inspected the work that had been done on the project to date and took thirty photographs of the property. When he was finished, Investigator Springer drafted Jobsite Inspection Notes. 7. On or about March 27, 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. Specifically, Respondent was ordered to remediate complaint items 1-8 via appropriate means. Respondent was put on notice that it had until April 16, 2019, to notify the ROC of its compliance with the corrective order or face discipline pursuant to ARIZ. ADMIN. CODE See https://roc.az.gov/contractor-search?Id=a0Yt000000ACQi5EAH. Received 7/29/2019 ROC Legal R4-9-108, and ARIZ. REV. STAT. §§ 32-1154(A)(22) and 32-1154(E). Respondent failed to timely comply. 8. On April 17, 2019, the ROC issued a Citation 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. Respondent was given until May 3, 2019, to respond with its Answer or

face discipline pursuant to ARIZ. REV. STAT. §§ 32-1154(A)(22) and 32-1155.

9. Respondent filed an Answer to the Citation, with the ROC, on an unknown

date.

10. On May 10, 2019, the ROC referred this matter to the Office of

Administrative Hearings, an independent state agency, for an evidentiary hearing on

April 19, 2019. Per the Notice of Hearing9 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.”).

11. At hearing, Complainant testified on his own behalf and submitted one exhibit. Oscar Gomez testified for Respondent. The ROC’s electronic hearing file and Notice of Hearing were also admitted into the evidentiary record. 12. Complainant testified that at all times relevant he was the owner of 1774 C Paseo De La Luna, Sierra Vista, AZ 85635. 13. Per Complainant, he discovered workmanship deficiencies in his roof in early July. Complainant discovered that Respondent removed roofing from the incorrect section of the house. Complainant testified that Respondent removed the front section

9 See NOTICE OF HEARING. Received 7/29/2019 ROC Legal of the roof instead of the back section. He stated that this resulted in the second contract dated July 8, 2018. 14. Complainant stated that Respondent was supposed to remove the air-

conditioning unit to allow for placement of the roofing tile. Complainant stated that the

unit was never removed on July 19, 2018, as scheduled.

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

a home-buying inspection took place, on July 10, 2018, and the inspector noted that

the roof was in need of repair.

16. Complainant testified that, although Respondent had agreed to perform

the repairs that he had requested, the work was not done. Complainant testified to the

following unworkmanlike issues, including but limited to: failure to repair rotted drywall,

failure to repair a broken drain gutter, failure to use correct matching steel, failure to

repair exposed wood, failure to properly re-install the water heater vent pipe according

to current industry standards failure to properly seal the water heater vent pipe causing

internal property damage, failure to replace the T-top, failure to match new roofing tile

to existing roofing tile with regard to color and shape, failure to properly install mud

balls causing mortar to come down on even and staining the eve and sidewalk, failure to clean the jobsite leaving behind hazardous debris (including cigarette butts), moving gravel not requested to be moved, and failure to maintain professionalism with Complainant when addressing the above mentioned issues. 17. Complainant further testified that when a roof inspection was conducted, thereafter, the roof was not up to code. Complainant stated that he paid for the inspection. He also stated that Respondent kept asking Complainant for payment. 18. Per Complainant, although the ROC substantiated his allegations of poor workmanship against Respondent, Respondent failed to adhere to the resulting Directive. 19. 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. 20. Per Mr. Gomez, he was directly involved with Complainant’s project. Received 7/29/2019 ROC Legal 21. Mr. Gomez admitted that he was in receipt of the ROC’s Directive. Mr. Gomez testified that he failed to comply because Complainant breached the contract when Complainant failed to pay Respondent the remaining balance of $8,576.00.

22. Mr. Gomez admitted to beginning work on the wrong side of the roof, per

the first contract. Mr. Gomez admitted that Respondent’s representative told

Complainant that they had matching tiles. Mr. Gomez blamed Complainant’s previous

roofer for doing a poor job. Mr. Gomez stated that he replaced the plywood and agreed

to fix the fascia, at a later date.

23. Mr. Gomez stated that the gutter was 20-30 years old and was brittle so

any damage to that was not his fault. Mr. Gomez stated that he used the kind of steel

that he felt was appropriate because there were no specified color or type mentioned in

the contract. Mr. Gomez testified that the tile that he and Complainant agreed to was no

longer available. Mr. Gomez admitted that he could not find matching tile in that area

and that was why the tile he installed did not match the existing tiles.

24. Mr. Gomez apologized for his mistakes. He apologized for leaving debris

at the jobsite, for moving gravel that was not supposed to be moved, and for causing

Complainant additional property damage. Mr. Gomez also apologized for being aggressive with Complainant. 25. Mr. Gomez admitted that he did not comply with ROC’s Directive. Mr. Gomez admitted to being negligent and stated that he is “motivated to close the business.” 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. 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.10 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). Received 7/29/2019 ROC Legal 3. The purpose of the ROC’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.11 4. Complainant bears the burden of proof to establish cause to discipline

Respondent’s license by a preponderance of the evidence.12 Respondent bears the

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

same evidentiary standard.13

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

fact that the contention is more probably true than not.”14 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.”15

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 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

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). 14 MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). Received 7/29/2019 ROC Legal 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 March 27, 2019, and required Respondent’s full compliance by April 16, 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 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.

15 BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999). Received 7/29/2019 ROC Legal 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 revoked. IT IS FURTHER RECOMMENDED that the ROC require Respondent to pay the sum total of $500.00 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, July 29, 2019.

/s/ Antara Nath Rivera Administrative Law Judge Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors