ALJDEC decisions subject to certification as final

2020A-02724-CHC-ROC · Registrar of Contractors · 2020-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Sara E Selimi,

COMPLAINANT,

v.

Alberto Lopez Ramirez,

License No. 273001,

RESPONDENT.

No. 2020A-02724-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: Sara Selimi (“Complainant”) appeared on her own behalf with Chris Fultz as a witness. Alberto Ramirez (“Complainant”) appeared on his own behalf.

APPEARANCES: October 23, 2020 at 1:00 PM.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Order to the Director of the Arizona Registrar of Contractors (“Registrar”).

FINDINGS OF FACT

Background and Procedure

On June 27, 2014, the Registrar issued License No. 293265 for General Residential B contracting to Respondent. Respondent’s address of record for the license is 10507 E. Montgomery Dr. Spokane Valley, WA 99206-4280. Alberto Lopez Ramirez is listed on the license as the Qualifying Party and Officer.

Pursuant to Ariz. Admin. Code R4-9-117 Administrative Notice is taken of Respondent’s prior license record, for ROC License No. 273001, as reflected on the Registrar’s public website on October 23, 2020. Such prior license record reflects that Respondent’s license is active and currently renewed through May 31, 2021. The license has not been previously disciplined and there are no prior complaints has been settled or otherwise resolved with the license. The record also reflects that there is one open complaint against Respondent’s license, which is presumed to be related to this matter. Respondent has a $9,000.00 surety bond for the license issued through Great American Insurance Company, effective October 05, 2016.

On June 05, 2020, the Registrar received a complaint filed by Complainant poor workmanship of a demolition and reinstallation of skirting, sheeting, and 2 x 4s project. The Registrar later received copies of an estimate, invoice, proof of payment, emails between the parties, and related photographs from Complainant.

On June 06, 2020, the Registrar issued a Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on June 30, 2020, at 2:30 p.m.

On June 30, 2020, Registrar investigator Chris Fultz (“Investigator Fultz”) inspected the work that had been done on the project to date and took 3 photographs of the project. When he was finished, Investigator Fultz drafted Jobsite Inspection Notes whereby he substantiated 4 of Complainant’s 5 complaint items. Specifically, Investigator Fultz concluded that complaint items 1-4 required remediation for poor workmanship.

On July 08, 2020, Investigator Fultz issued a Directive from the Registrar to Respondent because he determined that Respondent’s work on the project failed to meet the Registrar’s minimum workmanship standards. Respondent was put on notice that he had until 5:00 p.m. on July 30, 2020, to notify the Registrar of its compliance with the Directive or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, 32-1154(A)(22), and 32-1154(E).

On July 28, 2020, Investigator Fultz received written notification from Respondent that he remediated all of the complaint items outlined in the Registrar’s Directive.

On August 12, 2020, Investigator Fultz issued a Compliance Jobsite Inspection Notification letter to the parties, advising that an onsite review would be conducted at the project site by an investigator on August 18, 2020, at 12:00 p.m.

On August 18, 2020, Investigator Fultz inspected the project and took 5 photographs. When he was finished, Investigator Fultz drafted Compliance Jobsite Inspection Notes detailing his determination that Respondent successfully remediated complaint items 3 and 4, but that Respondent had failed to properly correct complaint items 1 and 2.

On August 21, 2020, Investigator Fultz escalated Complaint No. 2020-02724 to the Registrar’s legal department with citation recommendations.

On August 25, 2020, the Registrar issued a Citation to Respondent for alleged violations of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and 32-1154(A)(22). Respondent was given until September 09, 2020, to respond with its Answer or face discipline pursuant to Ariz. Rev. Stat. §§ 32-1154(A)(22) and 32-1155.

On September 02, 2020, the Registrar received Respondent’s Answer whereby Respondent asserted, in pertinent part, an employee had mistakenly installed an untreated 2 x 4 but that he had replaced it with a treated on July 29, 2020. Per Respondent, he also completed water treating the same day. Respondent also alleged that Complainant had denied Respondent access to the project site on multiple occasions, was “extremely rude,” and that Complainant field the underling complaint against Respondent to get out of paying an outstanding balance of $300.00 owed to Respondent.

On September 14, 2020, the Registrar referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on August 12, 2020. Per the September 21, 2020, Notice of Hearing the issue to be determined is whether the Registrar 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.”).

Hearing Evidence

Complainant testified on her own behalf and called Investigator Fultz as a witness. Alberto Ramirez testified on behalf of Respondent. The Registrar’s agency file and Notice of Hearing were also admitted into the record as their own exhibits. The substantive evidence of record is as follows:

Complainant owns a residential manufactured home located at 20821 W. Cheyenne Rd. Buckeye, Arizona 85326.

On or about March 13, 2020, the parties entered into a contractual agreement whereby Complainant agreed to pay Respondent $2,210.00 to demolish and reinstall skirting along the perimeter of her home, install rear siding sheets, and install treated 2 x 4s in the back of the home.

Complainant paid Respondent $1,877.00 on the project.

On April 07, 2020, work on the project commenced. On April 08, 2020, work on the project was completed.

In May 2020, Complainant contacted Respondent over concerns regarding his workmanship on the project. Respondent refused to make corrections until he received full payment on the contract from Complainant.

Complainant filed a complaint with the Registrar because the parties were unable to resolve their dispute themselves.

Respondent did not participate in the jobsite inspection because he did not receive Investigator Fultz’s correspondence.

During the Directive’s compliance period, the parties argued on multiple occasions. On two occasions Respondent reported to the project site several hours earlier than agreed upon because he thought the premises would be vacant. However, both times when Complainant awoke she asked Respondent to return at the time they had previously agreed to. Respondent made 3 remediation trips to the project site in total, but ultimately fell behind and did not complete Complainant’s waterproofing due to other unrelated work commitments.

Respondent did not participate in the compliance jobsite inspection because he had conflicting job-related appointments.

In closing, Complainant argued that she never denied Respondent access to the project site, and on the 2 occasions Respondent showed up outside the hours they agreed he would remediate his work, she redirected him to return during said hours and made the site available during those times to Respondent.

In closing, Respondent argued that he would still like the opportunity to “make it right” with Complainant, and that he does not want any “problems” with the Registrar.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction and has been properly brought before the Office of Administrative Hearings for adjudication.

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 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 requires that “a contractor shall perform all work in a professional and workmanlike manner, and that a contractor shall perform all work in accordance with any applicable building codes and professional industry standards.”

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 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.

Here, the record is clear.

It is clear from the record that Complainant paid Respondent $1,877.00 on a $2,210.00 contract, and that most of the work Respondent performed on the project fell below the Registrar’s minimum workmanship standards. It is also clear from the record that Respondent failed to completely remediate all items identified for remediation in the Registrar’s Directive by the compliance deadline date.

Therefore, the only issue in dispute is whether Respondent raised a sufficient justification or excuse for failing to timely comply with the Registrar’s Directive. This is an affirmative defense that Respondent bears the burden to establish.

Here, although Respondent argued that he had been denied access to the project site, he failed to establish by a preponderance of the evidence that the reason he did not complete the outstanding waterproofing was because Complainant precluded his access between July 08, 2020, and July 30, 2020. By his own admission, Respondent made 3 separate remediation trips to the project site during the corrective period, and fell behind due to work obligations unrelated to Complainant’s project.

Because Complainant established by a preponderance of the evidence that Respondent failed to adhere to an issued Directive regarding Respondent’s poor workmanship, Complainant has also established cause for the Registrar to take disciplinary action against Respondent’s contractor’s license under Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108, and/or 32-1154(A)(22).

Complainant may petition the Registrar’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,

IT IS RECOMMENDED that on the effective date of the Final Order in this matter Respondent Alberto Lopez Ramirez, ROC License No. 273001, be suspended for two (2) days.

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, November 09, 2020.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors