ALJDEC decisions subject to certification as final

2010A-308476790-ROC · Registrar of Contractors · 2011-04-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 18, 2011

APPEARANCES: Complainant appeared and was represented by attorney William Novotny; no one appeared on behalf of Respondent.

WITNESSES: Rick Oelke, ROC Inspector Mark Caretto

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging poor workmanship and failure to comply with a Corrective Work Order against Respondent regarding installation of hardwood flooring. As noted above, Respondent did not appear at the hearing; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record, as well as marked Exhibits A, B, C, and D.[1] Complainant presented evidence and testimony from himself and Inspector Oelke. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding violations of the law and recommending provisional revocation of the license. FINDINGS OF FACT 1. Respondent is the holder of license K-64.250168-D, a dual specialty contracting license issued by the Registrar of Contractors (“ROC”). It authorizes Respondent to install and repair wood floor covering materials for both residential and commercial properties. The Qualifying Party for the license is Bogdan Serafin. 2. In October 2010, Complainant filed a complaint with the ROC complaining about installation of hardwood flooring by Respondent at Complainant’s residence. An initial inspection was performed[2] and ROC Inspector Rick Oelke issued a Corrective Work Order (“CWO”) on November 8, 2010. The CWO ordered Respondent to correct several aspects of the flooring in various locations, including hollow areas and “peaking” at board edges, as well as poor repairs done prior to the inspection. 3. Complainant testified that Respondent made attempts to correct the floor after the CWO was issued, but failed. Inspector Oelke inspected the floor again on March 17, 2011,[3] and confirmed that the floor has not been corrected and remains in substantially the same condition. 4. Complainant’s evidence is uncontested. 5. The evidence shows that Respondent did a poor job installing the flooring and has tried to repair it, but has not done so. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[6] Complainant has met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(3) by way of ROC Rule R4-9-108 (prohibits poor workmanship), and (A)(23) (requires compliance with a CWO).[7] The evidence shows that Respondent has violated those provisions. 3. A review of current ROC records shows that Respondent’s license is current and in good standing. 4. The appropriate sanction in this matter is provisional revocation of the license. If Respondent makes the corrections to the floor, the case should be closed. Also, a substantial civil penalty is warranted. RECOMMENDED ORDER IT IS RECOMMENDED that license K-64.250168-D, held by Serafin Enterprises, LLC, dba Mission Hardwood Floor Company be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives written proof that all items in the November 8, 2010, CWO have been corrected and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides written proof of compliance with the CWO on or before the effective date of the Registrar’s Order, license revocation shall not take place and case 2010- [number redacted] shall be closed. IT IS FURTHER RECOMMENDED that, in addition to the sanctions provided above, Respondent Serafin Enterprises, LLC, dba Mission Hardwood Floor Company, pay a civil penalty of $500.00 to the Registrar of Contractors pursuant to A.R.S. §32-1154(D). Failure to pay the entire amount of the civil penalty on or before 30 days following the effective date of the Registrar’s Order entered in this matter shall result in the automatic revocation of Respondent’s license, effective on the deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is made.

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 6, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit D contains photographs of the flooring with commentary by Complainant. [2] Respondent was present at that inspection. [3] Respondent was not present at that inspection. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [7] The Citation and Complaint also cites provisions relating to the use of a name that is different than the one on the license and minimum elements of a contract. Respondent has been sent written notification by the ROC about those provisions and no further action is warranted.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826