ALJDEC decisions subject to certification as final

22F-P21-058-BTR · Board of Technical Registration · 2022-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Eduardo Ornelas,

Registered Architect No. 22461,

and

Arquitecto E.J. Ornelas & Associates

Architect Firm,

Registration No. 11260, Expired,

Respondents.

No. 22F-P21-058-BTR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 26, 2022

APPEARANCES: Eduardo Ornelas appeared, representing both himself and Arquitecto E.J. Ornelas & Associates. Assistant Attorney General Deanie Reh represented the Arizona State Board of Technical Registration.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

Eduardo Ornelas (“Respondent”) held Professional Architect Registration No. 22461 issued by the Arizona State Board of Technical Registration (“Board”). Respondent held this registration at all times relevant to this matter.

Arquitecto E.J. Ornelas & Associates (“Firm”) previously held Professional Architectural Firm Registration No. 11260 which had expired on February 1, 2019; the Firm’s registration was inactivated by the Board due to the lapse in renewal. On April 9, 2021, Respondent again registered Firm and Firm now holds Professional Architectural Firm Registration No. 23199; this registration is set to expire on April 9, 2023.

On February 8, 2021, Kristine L. Slentz (“Client”) filed a complaint (“Complaint”) with the Board. Client stated that she hired Respondent and Firm to design a small addition to her home; she noted that she had signed a contract on November 11 [2020] and paid $3,750.00. Client further stated that the preliminary drawings (a) “diverged wildly” from the plans she had discussed with Respondent and (b) were “at odds” with the plans of her builder and herself. Finally, Client indicated that Respondent had “refused” to meet with herself and the builder but had, in early January, sent to her a project “update.” Client requested, as a resolution, that the Board recover the $3,750.00 she had paid and, if appropriate, to investigate whether Respondent is capable of performing the type and scope of work he had accepted.

Client supplied a copy of the parties’ contract (“Contract”). The parties’ total contract amount was $7,250.00 and Respondent had deposited Client’s check for $3,750.00.

In the Contract, Respondent agreed to “furnish the services necessary to complete” certain specified “working drawings” to construct an addition including a guest room, a kitchenette, bathroom, and a roof deck. Respondent agreed to provide the following: site planning; architectural drawings (foundation plan, floor, plan, framing plan, sections, elevations, details, roof plan); structural calculations and drawings; mechanical calculations and drawings; plumbing calculations and drawings; electrical calculations and drawings, a model energy code report, and permit processing.

With her Complaint, Client provided a chronology, in which she indicated that, after “pressing” Respondent to meet with her, they met on December 9, 2020 and he had presented a “very incomplete” floor plan sketch “that bore little resemblance” to their previous discussions.

In her Complaint, Client noted that, after she received an update from Respondent, she had responded to Respondent with a January 6, 2021 memo outlining the impetus of the project, her disagreements with Respondent’s update, and, overall, her recollection of their discussions. In the January 6, 2021 memo, Client set forth her recollection of her contact with Respondent regarding the project. Client noted that she had specified with Respondent [on December 9, 2020] to not do any more work on the design until he met with the builder; further that Respondent had not given her a copy of the plan he had done thus far and also had “committed” to redrawing and completing the plans pursuant to their initial discussion and meeting on site with the builder “two days later” (i.e. on December 11, 2020). Client noted that Respondent did not come to the site on that date, but contacted Client on December 13, 2020 to drop off “revised plans;” Client noted she responded indicating that they needed to get together with the builder. Client noted that the builder told her on December 17, 2020 that he had talked with Respondent, and that builder was waiting to hear from Respondent about a day they could meet. Finally, Client noted that Respondent contacted her on December 24, 2020 wondering if they could meet on December 26th “to finalize the design.” Client noted that she declined to meet on that date for several reasons. Finally, Client noted that, due to the circumstances, she no longer wanted to work with Respondent and proposed that he “keep $500 ... as compensation for the work [Respondent] may have done” and return the remainder of the deposit.

On January 20, 2021, Respondent contacted Client and indicated that he had “just returned from Mexico after [being] quarantined for 14 days” and that when he was able to go to his office, he would respond back to her.

On January 30, 2021, Client notified Respondent that she had hired another architect; in the chronology, Client noted that, as of February 8, 2021, she had not yet heard anything else from Respondent.

Board staff contacted Respondent, who provided his project chronology and documentation on or about April of 2021.

In his chronology, Respondent stated that, on December 9, 2021, after discussing “Concept #2,” Client had “accepted” his suggested “Concept #3” but wanted more “specifics.” Respondent noted that a meeting date of December 12, 2020 was set; however, he does not indicate any outcome of such a meeting. Respondent mentions the communication from him on January 3, 2021, i.e., the Project Update. Respondent describes the remaining contact as being a call from the “contractor” to whom Respondent indicated that he was waiting for Client to set up a meeting.

In June 2021, Board staff requested professional assessments of the Complaint and circumstances regarding the project.

In letter dated July 26, 2021, Architect Brian M. Anderson concluded that “the concept drawings and lack of communication shows an absence of a standard of care a licensed profession is obligated to provide.” Mr. Anderson determined that Respondent had not been “grossly negligent” but had demonstrated “misconduct by not providing a standard of care that would be in comparison to another professional.” Mr. Anderson noted the “big gap” in communication from Respondent to Client. Mr. Anderson described the Respondent’s work product, as had been provided for his review, to be at a level of a first-year student and not at a professional level for someone with as many years of experience as Respondent. Mr. Anderson recommended that the Enforcement Advisory Committee (“EAC”) not be required, but that the Board substantiate the allegations and impose penalties to be determined by the Board.

In letter dated June 25, 2021, Architect Thomas R. Knapp concluded, overall, that Respondent: had not provided professional documents, drawing, or services; failed to communicate with Client and builder; and, subsequently, abandoned the project without repayment of funds to Client. Mr. Knapp noted that the “crude” drawings did not meet a standard of care of a registered architect and did not demonstrate the “technical knowledge and skill” that would be applied by other qualified architects who were practicing in the same area and in the same time frame that would be required pursuant to Arizona Administrative Code (“A.A.C.”) R4-30-301(6). Mr. Knapp recommended that EAC be convened.

The EAC convened a meeting on December 13, 2021, and concluded (a) that Respondent’s practice in these circumstances rose to the level of “other misconduct” as defined in A.A.C. R4-30-101(16); and, (b) that Respondent’s work product was not professional, not meeting the “technical knowledge and skill required of an architect.”

In its Complaint and Notice of Hearing, dated June 17, 2022, scheduled an administrative hearing to consider the Board’s allegations and consider whether discipline was appropriate.

The Board alleged that Respondent actions and conduct constituted grounds for discipline, pursuant to Arizona Revised Statutes (“A.R.S.”) § 32-128(C)(4) and A.A.C. R4-30-301(6), in that Respondent had failed to apply the appropriate technical knowledge and skill that would be applied by other qualified registrants who practice in the same profession in the same area and at the same time.

The Board alleged that Respondent’s actions and conduct in this matter constituted grounds for discipline, pursuant to A.R.S. §§ 32-121, 32-128(C)(4), 32-141(A) and A.A.C. R4-30-301(4) and (20), in that Respondent and Firm contracted to practice architecture while Firm was unregistered.

At hearing, Architect David J. Brotman testified regarding his review of the matter and his participation in the EAC. Mr. Brotman opined that Respondent’s documents, including Respondent’s Contract forma and the prepared Concept #2 and #3 drawings did not meet the “standard of care” for registered architects. Mr. Brotman opined that, even as “concept” drawings, the drawings produced were insufficient, and had not depicted what Client wanted (for example, did not show a connection between the carport and the addition and did not show the laundry area connection Client had described). Mr. Brotman indicated that the Concept #3 drawings Respondent had produced were really only a proposed floor plan without any specifications or details. Mr. Brotman opined that, because the Contract had not defined “architectural drawings,” he could not determine whether Client received the “architectural drawings” that the Contract called for. Mr. Brotman agreed that, some of the Contract-listed “drawings” certainly would not be needed until construction (mentioning structural and mechanical); however, Mr. Brotman continued to opine that the Concept #3 drawings did not meet the standard of care. Overall, Mr. Brotman opined that Respondent’s treatment of Client and the project fell below the standard of care as to the client-architect process with respect to being responsive to Client, and that, in this case and under these circumstance, Client had not received what she contracted/paid for.

On cross-examination, Mr. Brotman agreed that unless a client had agreed to conceptual or preliminary plans, it would be difficult to proceed, and he agreed that final “construction” drawings would contain details and specifications regarding the various construction stages. Mr. Brotman further indicated that, as to obtaining a client’s approval, no one phase of a project was more important that another phase.

At hearing, as to the process, Respondent argued that the drawings he had prepared were “preliminary” and that Client had canceled some appointments. Respondent stated that he had been anxious to get the project going (when he wanted the December 26th meeting) and that it was going to be an “infill” project for his draftsman, who would have produced the set of working documents. Respondent stated that he had been reluctant to work with the unlicensed builder.

At hearing, Respondent spent some time defending his Concept #3 as reflecting what Client had wanted. In this regard and as to proceeding, Respondent argued that what Client wanted kept changing. However, Respondent also acknowledged that Client had not seen Concept #3.

Respondent testified that he had spent “at least 100 hours” on this project and that his hourly fee was typically $185.00 an hour, noting that wasn’t what he had charged on the Contract.

In Closing, Respondent argued that Client never made an appointment for him to review Concept #3 with Client and he indicated that he would be willing to give back the deposit monies that Client had given to him. Arguing against the position that he had provided nothing to Client that she had contracted for, Respondent felt that he had demonstrated he had been to the site and made drawings for Client. Regarding the Firm’s status as non-registered at the time of the Contract, Respondent acknowledged that allegation was accurate.

In Closing, the Board argued that the evidence demonstrated Respondent had failed to meet the standard of care in these circumstances. The Board argued that it had demonstrated the alleged violations of A.R.S. § 32-128(C)(4) and A.A.C. R4-30-301(6), of Respondent failing to apply appropriate technical knowledge and skill, and had demonstrated the alleged violations of A.R.S. §§ 32-121, 32-128(C)(4), 32-141(A) and A.A.C. R4-30-301(4) and (20), as to the Firm’s registration status issue. The Board argued that that Client should be made whole through a restitution order, that Respondent should receive a letter of reprimand with a licensure suspension until the restitution is made, and that the Board should be provided with its administrative costs.

Since the hearing, the Tribunal has received no indication from the parties or the Board that this matter was resolved and/or that the Tribunal’s administrative decision was not required to be issued.

CONCLUSIONS OF LAW

The Board is the duly constituted authority for the regulation and control of the practices of architecture, including the unregistered practice.

A.R.S. § 32-106.02 provides, in pertinent part, as follows:

A. The board may initiate a hearing pursuant to title 41, chapter 6, article 10 on receipt of a complaint that a person who is not exempt from this chapter and is not registered or certified under this chapter is practicing, offering to practice or by implication purporting to be qualified to practice any board regulated profession or occupation. The board shall give notice of the hearing by mailing a copy of the complaint to the person’s last known address by certified mail return receipt requested.

B. If after the hearing the board determines that based on the evidence the person committed a violation under section 32-145, it, in addition to any other sanction, action or remedy, shall issue an order that imposes a civil penalty of no more than two thousand dollars per violation.

A.R.S. § 32-121 provides, in pertinent part, as follows:

Except as otherwise provided in this section, a person or firm desiring to practice any board-regulated profession or occupation shall first secure a certificate or registration and shall comply with all the conditions prescribed in this chapter.

A.R.S. § 32-141(A) provides, in pertinent part, as follows:

A firm shall not engage in the practice of any board-regulated profession or occupation unless the firm is registered with the board and the professional services are conducted under the full authority and responsible charge of a principal of the firm, who is also a registrant.

A.R.S. § 32-128(C) provides, in pertinent part, as follows:

The board may take disciplinary action against the holder of a certificate or registration under this chapter who is charged with the commission of any of the following acts:

. . . .

4. Violation of this chapter or board rules.

A.A.C. R4-30-101(16) provides, in pertinent part, as follows:

“Other misconduct" means the applicant/registrant:

a. Has knowingly acted in violation or knowingly failed to act in compliance with any provisions of the Act, or rules of the Board or any state, municipal, or county law, code, ordinance, or regulation pertaining to the practice of the applicant's/registrant's profession ...

A.A.C. R4-30-301(4) provides, in pertinent part, as follows:

A registrant shall comply with state, municipal, and county laws, codes, ordinances, and regulations pertaining to the registrant’s area of practice.

A.A.C. R4-30-301(6) provides, in pertinent part, as follows:

A registrant shall apply the technical knowledge and skill that would be applied by other qualified registrants who practice the same profession in the same area and at the same time.

A.A.C. R4-30-301(20) provides, in pertinent part, as follows:

A registrant who is designated as a responsible registrant shall be responsible for the firm or corporation. The Board may impose disciplinary action on the responsible registrant for any violation of Board statutes or rules that is committed by a non-registrant employee, firm, or corporation.

The evidence of record demonstrated that Firm did not have an active registration at the time of the contract with Client. Respondent did not dispute the Board’s allegation in this regard. Therefore, Respondent’s actions and conduct in this matter constituted grounds for discipline, pursuant to A.R.S. §§ 32-121, 32-141(A), 32-128(C)(4), and A.A.C. R4-30-301(4) and (20), in that Respondent and Firm contracted to practice architecture while Firm was unregistered.

The evidence of record demonstrated that Respondent’s actions and conduct in these circumstances were a failure to apply the technical knowledge and skill that would be applied by other qualified registrants who practice the same profession in the same area and at the same time pursuant to A.A.C. R4-30-301(6). The hearing record demonstrated that not only did Respondent fail to produce “preliminary” drawings technically sufficient to document Client’s requested project, he failed to return Client’s deposit after Client notified him on January 6, 2021 that she no longer wanted to work with him and had hired another architect. While Respondent argued that he had worked “at least 100 hours” on the project, his assertion is not credible given the insufficient technical quality of the drawings he prepared. The Administrative Law Judge concludes that Respondent’s failure to meet the standard of care rose to the level of “other misconduct” pursuant to A.A.C. R4-30-101(16). Therefore, Respondent’s actions and conduct constituted grounds for discipline, pursuant to A.R.S. § 32-128(C)(4), A.A.C. R4-30-101(16), and A.A.C. R4-30-301(6) with respect to the Contract with Client.

While A.R.S. §32-106.02(B) authorizes the Board to impose a civil penalty of no more than $2,000.00 per violation in the event the Board determines that the registrant committed a violation under A.R.S. § 32-145, the Board did not allege, or notice Respondent of a position for this administrative hearing, that his actions and conduct constituted a violation of A.R.S. § 32-145. Therefore, the Administrative Law Judge makes no recommendation regarding the imposition of a civil penalty.

Given the findings and conclusions herein, the Administrative Law Judge recommends discipline in the form of a letter of reprimand and a Board Order which requires the following:

Respondent make full restitution to Client within a specified time frame after the effective date of the Board’s Order;

Respondent’s registration is suspended from the effective date of the Board Order until restitution is made, as demonstrated by valid documentation provided to the Board of restitution; and

Respondent be required to pay the costs and fees incurred by the Board during the investigation and prosecution of this matter.

RECOMMENDED ORDER

IT IS ORDERED that the Board require Respondent to make full restitution to Client of Client’s $3,750.00 deposit.

IT IS FURTHER ORDERED that the Board suspend Respondent’s Professional Architect Registration No. 22461 issued by the Board until Respondent presents valid documentation of restitution to Client

IT IS FURTHER ORDERED that the Board require Respondent to pay the costs and fees incurred by the Board during the investigation and prosecution of this matter.

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 five days from the date of that certification.

-54864001

001

-137160-45720000Done this day, September 23, 2022.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Judith Stapley, Director

Board of Technical Registration

By Miranda Alvarez

Legal Secretary