ALJDEC - Licensing

2023A-04281-CHC-ROC · Registrar of Contractors · 2024-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Dwayne Lewis,

COMPLAINANT,

v.

Eco Life 21 Century LLC

DBA: Vital Roofing

ROC License No. 334792,

RESPONDENT.

No. 2023A-04281-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 24, 2024 at 1:00 PM.

APPEARANCES: Dwayne Lewis (“Complainant”) appeared on his own behalf. Edgar Tumbaga appeared on behalf of Eco Life 21 Century LLC (“Respondent”). Cliff Corlett appeared on behalf of the Arizona Registrar of Contractors (“Registrar”). Shara Lewis observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

EXHIBITS ADMITTED INTO EVIDENCE: The Notice of Hearing, including the Registrar’s attached administrative file, was admitted into the record.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

Pursuant to Arizona Administrative Code (“Ariz. Admin. Code”) R4-9-117, Administrative Notice is taken of Respondent’s prior license record as reflected on the Registrar’s public website. On September 16, 2021, the Registrar issued License No. 334792 Specialty Dual CR-42 Roofing contracting license to Respondent. The license is renewed through September 30, 2025. Edgar Ivan Urias Tumbaga is listed as the Qualifying Party, Member, and Manager on the license. Respondent’s address of record for the license is 83228 S. Yavapai Ln. Yuma, AZ 85364. Respondent has an active $6,750.00 surety bond on the license issued by Platte River Insurance Company, effective August 17, 2021. The license no prior disciplinary record, save one open complaint which is presumed to be related to this matter.

On or about April 11, 2023, the Registrar received a narrative complaint from Complainant against Respondent’s License No. 334792 alleging poor work of their residential roofing project. The Registrar designated it Complaint No. 2023-04281 and assigned to Cliff Corlett (“Investigator Corlett”) for investigation.

On April 14, 2023, Investigator Corlett issued a Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on May 05, 2023, at 11:30 a.m. Correspondence was not returned as undeliverable to Respondent.

On May 05, 2023, Investigator Corlett inspected the work that had been performed on the project to date. Respondent was not present. Investigator Corlett also reviewed the contract-related correspondence between the parties, and took 15 photographs of the project site. When he was finished, Investigator Corlett drafted his Inspection Notes. Ultimately, Investigator Corlett derived a total of 9 separate and distinct complaint items, of which he was able to substantiate 8 based on his firsthand observations. Specifically, Investigator Corlett determined Respondent’s workmanship on complaint items 1-7 and 9 failed to meet the Registrar’s minimum standards and required Respondent to perform corrective and/or completion work to remediate the identified deficiencies.

On May 11, 2023, Investigator Corlett issued a Written Directive from the Registrar (“Directive”) to Respondent because he substantiated nearly all of Complainant’s complaint allegation(s) against Respondent. Respondent was put on notice that it had until 5:00 p.m. on May 31, 2023, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A) and 32-1154(E). Correspondence was not returned as undeliverable to Respondent.

On May 13, 2023, Investigator Corlett issued a Warning Letter to Respondent for an alleged violation of Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 32-1154(A)(12); 32-1158(A) for Respondent’s failure to include all nine (9) required minimum elements in his contracts, including his contract with Complainant. Respondent was further advised that statutory noncompliance could result in discipline against Respondent’s license including suspension or revocation. Correspondence was not returned as undeliverable to Respondent.

On May 31, 2023, Respondent requested an extension of the Registrar’s Directive. Though granted, a formal letter acknowledging such was not issued by Investigator Corlett.

On July 07, 2023, Investigator Corlett issued a 10-Day Response Due Letter to warn Complainant that Complaint No. 2023-04281 would be closed by the Registrar if an update regarding the status of Respondent’s compliance with the Directive was not provided.

On August 16, 2023, Complaint No. 2023-04281 was closed by the Registrar, without prejudice.

On September 14, 2023, Complainant requested a reopening of Complaint No. 2023-04281, as well as a compliance jobsite inspection.

On September 16, 2023, the Registrar reopened Complaint No. 2023-04281.

On September 17, 2023, Investigator Corlett issued a Compliance Jobsite Inspection Notification Letter to the parties, advising that he would conduct an inspection of the project on October 19, 2023, at 11:00 a.m. Correspondence was not returned as undeliverable to Respondent.

On October 19, 2023, Investigator Corlett inspected the corrective work that had been performed on the project and took 22 photographs. Respondent was not present. When he was finished, Investigator Corlett drafted his Compliance Jobsite Inspection Notes. Ultimately, Investigator Corlett determined that Respondent had satisfactorily performed corrective work necessary to remediate complaint items 4-5 and 9. Complaint items 1-3 and 6-7 remained outstanding.

On November 09, 2023, Investigator Corlett forwarded the matter to the Registrar’s legal department with the issuance of a Citation Recommendation.

On November 14, 2023, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22). Respondent was given until November 29, 2023, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155. Correspondence was not returned as undeliverable to Respondent.

On November 27, 2023, the Registrar received Respondent’s timely Answer whereby Mr. Tumbaga argued that Complainant was uncommunicative during the Directive’s compliance period, causing confusion. Mr. Tumbaga also argued that he had previously forwarded Complainant that the facie boards at issue “might not be perfectly straight” because they were “difficult to cut while upside down.”

On November 29, 2023, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on January 24, 2024. Per the December 08, 2023, Notice of Hearing the issues to be determined are whether the Registrar has cause to discipline Respondent’s license based on the following alleged statutory violations:

Charge 1: A.R.S. § 32-1154(A)(3) – A.A.C. R4-9-108(a)

Charge 2: A.R.S. § 32-1154(A)(22)

Hearing Evidence

Complainant testified on his own behalf and called Investigator Corlett as a witness. Edgar Tumbaga testified on behalf of Respondent. The substantive evidence of record is as follows:

Complainant is what is colloquially referred to as a Snowbird: a person who spends winter months in Arizona.

Complainant owns secondary residential property located at 49684 Diamond Ave. Quartzite, Arizona 85346.

On or about February 26, 2023, the parties entered into a $9,375.00 roof replacement contract.

Work on the projects commenced on or about March 16, 2023, and stopped or was otherwise completed in March 18, 2023.

Complainant paid Respondent in full.

Respondent received the Registrar’s jobsite and compliance inspection notices, but chose not to participate in either.

Between May 11, 2023, and May 31, 2023, Respondent did not perform any corrective work on substantiated complaint items 1-7 and/or 9.

During this period of time, Complainant had an onsite caretaker that could have and/or would have let Respondent on site if ever such a request had been received.

Investigator Corlett did not provide Respondent with a deadline to comply with the extended Directive.

Sometime between June 01, 2023, and October 18, 2023, Respondent satisfactorily performed corrective work necessary to remediate complaint items 4-5 and 9 only. During this time Respondent sent multiple text messages to Complainant to confirm satisfaction with all corrective work, but Complainant never replied.

Complainant was not in Arizona when Respondent’s remediations were performed.

At no point in time did Respondent allege a denial of access to the project site during the Directive’s compliance period, or the extension thereof.

Closing Arguments

In closing Mr. Tumbaga argued that because Complaint No. 2023-04281 was Respondent’s first complaint, that he was he did not know what to do but that he tried his best to comply with the Registrar’s Directive.

In closing Complainant argued that he had sustained his burden of proof by establishing that Respondent’s workmanship on his project was poor, that Respondent had sufficient time and access to the project site to perform corrective work and failed to completely do so.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter pursuant to Ariz. Rev. Stat. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

The Registrar 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.

Complainant bears the burden of proof to establish cause for the Registrar to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

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.”

Ariz. Admin. Code R4-9-108(a) requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”

Ariz. Rev. Stat. § 32-1154(A)(22) provides, 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 other penalty be imposed for a violation of this paragraph until after a hearing has been held. The Registrar has the authority to issue license discipline under this provision, including summary suspension, revocation, or imposing a civil penalty or recovery fund award.

Ariz. Rev. Stat. § 32-1154(E) provides, in pertinent parts, that the Registrar 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 provides that “[n]o 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.”

Statutes shall be liberally construed to affect their objects and to promote justice. In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.”

Statutes should be interpreted to provide a fair and sensible result. “In applying a statute its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”

The Tribunal is required to apply equitable principles when rendering decisions. The application of equity entails offering a remedy to avoid an unconscionable or unjust result.

The material facts in the case at bar are not in dispute.

It is undisputed that the Complainant paid Respondent in full for the underlying roofing contract. It is also undisputed that most of the work Respondent performed on the project did not satisfy the minimum standards set for workmanship by the Registrar. It is further undisputed that Respondent failed to timely and completely comply with the Registrar’s Directive, despite the generous extension that had been afforded.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to adhere to the Registrar’s Directive and remediate Complainant’s project. This is an affirmative defense that Respondent bears the burden to establish. Here, Respondent did not sustain his burden. There is no evidence in the record that excuses or otherwise justifies Respondent’s inaction and/or lack of performance/competence on this project. While the record establishes that Respondent timely remediated substantiated complaint items 4-5 and 9, nothing in there is no mitigating evidence to hold that Respondent was not responsible for also remediating substantiated complaint items 1-3 and 6-7 as well.

Because Complainant has established Respondent’s violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22), Complainant has also established cause for the Registrar to discipline Respondent’s contractor’s license.

Complainant may petition the Registrar’s Recovery Fund for financial recompense in this matter.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter, Respondent Eco Life 21 Century LLC, ROC License No. 334792, be suspended two (2) days.

IT IS FURTHER RECOMMENDED that the Registrar require Respondent to pay the sum total of $100.00 (one hundred dollars) in certified funds as a civil penalty.

IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty (30) days following the effective date of the Registrar’s Order, the Registrar shall 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.

NOTICE

Pursuant to Ariz. Rev. Stat. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the Final Decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, January 29, 2024.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Tom Cole, Director

c/o Legal Department

Registrar of Contractors

1700 W. Washington St., Ste. 105

Phoenix, AZ 85007

[email redacted]

Dwayne Lewis, Complainant

49684 Diamond Ave.

Quartzsite, AZ 85346

[email redacted]

Eco Life 21 Century LLC, Respondent

dba Vital Roofing

8328 S. Yavapai Ln.

Yuma, AZ 85364

[email redacted]

By: OAH Staff