ALJDEC decisions subject to certification as final

2013A-4322-ROC · Registrar of Contractors · 2014-03-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 24, 2014, at 1:00 p.m. APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General, John Tellier. Ortiz Investments, LLC dba: Ortiz Flooring (hereinafter “Ortiz” or “contractor”) failed to appear. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background On July 9, 2006, the Registrar issued License No. K-8.221788-D to Ortiz.[1] On or about January 28, 2013, Karen Blandini (hereinafter “Ms. Blandini”) filed a Complaint with the Registrar alleging poor work by Ortiz in the performance of its November 2012 contract to replace carpeting in Ms. Blandini’s residence located at 9422 East Bloomfield Road, Scottsdale, Arizona.[2] Pursuant to the filing of the Complaint, an assigned Registrar Compliance Investigator, Jim Dimond (hereinafter “Investigator Dimond”), conducted a jobsite inspection of the construction project at Ms. Blandini’s residence. Investigator Dimond subsequently issued a Corrective Work Order that directed Ortiz to remedy its deficient workmanship on the construction project. The Corrective Work Order provided, in pertinent part, as follows: Item- Bad carpet seam in southeast bedroom.

Carpet at seam is frayed near the jambs and there is a void in the yarn near the center. Contractor is to correct the condition in an appropriate manner.[3]

Testimony of Registrar Compliance Investigator Jim Dimond Investigator Dimond testified that he was familiar with the Complaint that had been filed by Ms. Blandini against Ortiz. Investigator Dimond stated that Ms. Blandini filed a notarized statement regarding the terms of the parties’ oral construction agreement.[4] Investigator Dimond testified that there was a bad carpet seam approximately three feet long in Ms. Blandini’s residence. Investigator Dimond testified that the Corrective Work Order was issued on March 13, 2013. Investigator Dimond stated that he conducted a pre-hearing inspection at Ms. Blandini’s residence on January 31, 2014, at 1:00 p.m. Investigator Dimond testified that he took photographs of the carpet in Ms. Blandini’s residence at that time.[5] Investigator Dimond reviewed the photographs and testified that the carpet seam was located in Ms. Blandini’s daughter’s bedroom in the southeast portion of the residence. Investigator Dimond stated that the bedroom gets “quite a bit of sunlight.” Investigator Dimond testified that the photographs accurately show the seam and the inadequate work on the carpet in Ms. Blandini’s residence. Investigator Dimond opined that Ortiz failed to comply with Corrective Work Order as of the date of the pre-hearing inspection. Investigator Dimond’s testimony is found to be credible. Administrative notice is taken of Ortiz’s prior license record as reflected on the Registrar’s public website on March 6, 2014. Such prior license record reflects that License No. K-8.221788-D of Ortiz was suspended from January 22, 2007, through January 26, 2007, and from December 17, 2007, through March 7, 2008, for lack of bond. License No. K-8.221788-D of Ortiz was suspended from August 7, 2008 through August 28, 2008 as a result of Case No. 07-1383. CONCLUSIONS OF LAW The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The carpet in Ms. Blandini’s residence is frayed near the jambs and the carpet has a visible three-foot-long seam near the center of the carpet in Ms. Blandini’s daughter’s bedroom. This Tribunal concludes that Ortiz violated the charged provision of A.R.S. § 32-1154(A)(3),[6] namely, A.A.C. R4-9-108.[7] Investigator Dimond performed a pre-hearing inspection at Ms. Blandini’s residence on January 31, 2014. Investigator Dimond reviewed each of the items set forth in the Corrective Work Order and took photographs of the carpet as it appeared on the day of the pre-hearing inspection. The photographs were taken in a bedroom with abundant natural light. The photographs support Investigator Dimond’s opinion that Ortiz failed to comply with the terms of the Corrective Work Order. This Tribunal concludes that Ortiz violated the charged provision of A.R.S. § 32- 1154(A)(23).[8] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the final Order, License No. K-8.221788-D of Ortiz shall be suspended for a period of five days. It is further recommended, in addition to the above-provided penalties, if any, that Ortiz pay the sum of $500.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32-1154(D).[9] The failure by Ortiz to pay the entire amount of the aforesaid civil penalty on or before 30 days following the effective date of the Order entered in this matter shall result in the automatic revocation of Ortiz’s contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Ortiz, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered. 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, March 7, 2014.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit No. 2 (Application for Contractor’s License, license certificate). [2] See Exhibit No. 3 (1/28/13 Complaint). [3] See Exhibit No. 4 (3/13/13 Corrective Work Order). [4] See Exhibit No. 3 (8/23/13 Notarized statement attached to Complaint). [5] See Exhibit No. 5 ( Photographs of carpet seam and carpet fraying). [6] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, violation of any rule adopted by the registrar. [7] A.A.C. R4-9-108 provides, in pertinent part, as follows:

A. A contractor shall perform all work in a professional and workmanlike manner. B. A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. C. All work performed by a contractor in a county, city, or town that has not adopted building codes or where any adopted building codes do not contain specific provisions applicable to that aspect of construction work shall be performed in accordance with professional industry standards.

[8] A.R.S. § 32-1154(A)(23) provides as follows:

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. 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.

[9] A.R.S. § 32-1154(D) provides as follows:

The registrar may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of subsection A, paragraph 23 of this section. Civil penalties collected pursuant to this subsection shall be deposited in the residential contractors' recovery fund. The failure by the licensee to pay any civil penalty imposed under this subsection results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. No future license may be issued to an entity consisting of a person, as defined in section 32-1101, subsection A, paragraph 6, who is associated with the contractor, unless payment of any outstanding civil penalty is tendered.

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