ALJDEC decisions subject to certification as final

04F-F0231-ROC · Registrar of Contractors · 2005-06-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 15, and June 2, 2005 APPEARANCES: The Complainant appeared in her own behalf Jennifer McQueen, President-Secretary, for the Respondent ADMINISTRATIVE LAW JUDGE: Brian Smith on March 15, 2005 and Allen Reed on June 2, 2005 _____________________________________________________________________ Preliminary Matters This hearing initially commenced on March 15, 2005, in Flagstaff, Arizona before ALJ Administrative Law Judge Brian Smith. The case was not concluded and was set for further hearing in Phoenix, Arizona, to continue on June 2, 2005. Due to unforeseen circumstances, ALJ Smith was unable to preside over the further hearing and the case was transferred to ALJ Allen Reed who listened to the audio record and reviewed the exhibits which had been previously admitted. Based on the complete record before ALJ Smith and the record before ALJ Reed, the following findings are submitted. Findings of Fact 1. The Complainant owns a condominium unit in Sedona, Arizona. 2. In February of 2004, the Complainant had the Respondent put a new roof on her unit. 3. The unit was unoccupied. On May 4, 2004, the Complainant’s son went to check unit and discovered extensive water and mold damage from a leaking roof which had been leaking for an undetermined time. The damage included mold on the ceiling and walls as well as furnishings, bedding materials and numerous other items. 4. The Complainant contacted the Respondent who offered to clean the interior. The Complainant did not want the Respondent doing the work but rather wanted a professional company which had experience in mold detection and removal.[1] The fact that the condominium and much of what was in it had a mold problem was self evident and did not require expertise. The more technical issue was the full extent of the mold, its eradication and necessary restoration of the condominium. 5. On June 14, 2004, the Complainant filed her complaint against the Respondent, with the Registrar of Contractors (ROC). 6. On June 23, 2004, ROC Inspector Warren Duncan (Duncan) did a jobsite inspection. 7. On June 29, 2004, Duncan issued a Corrective Work Order (CWO) which required the Respondent to correct the roof leak and corollary damage by appropriate means. 8. The Respondent did corrective work on the roof. The parties had a number of communication exchanges. The Complainant wanted a professional company to clean up the mold. The Respondent wanted to be able to do the work itself rather than hire a third party (Exhibit B, Letter of July 8, 2004). The parties were unable to reach an agreement and in August 2004, the Complainant hired Carothers Environmental, LLC to do the mold testing at a cost of $2,700.00 9. In early September, 2004, a contractor (Williams), recommended by the Respondent, came to look at the Complainant’s unit. According to the Complainant, Williams initially said he would do the reconstruction but then backed out of the job after learning of the full extent of what the Complainant expected. 10. In mid September, 2004, the Complainant hired Restoration One and paid $10,000.00 for removal of damaged items and clean up of the unit. She paid another $9,597.97 for replacement and installation of cabinets, sinks, faucets, countertops etc. 11. The Complainant submitted total costs of $41,987.30, testing, cleaning, restoration, repair and replacement. According to the Respondent, some of the new items appear to be an upgrade of what is being replaced. Other items may not have required replacement. The need for replacement of or the cost of items such as wood replacement blinds at $1,259.54, a new refrigerator at 910.39, love seat and sofa at $950.00, mattress and box spring at $1,037.65, venting installation for a microwave at $527.73, bedding skirt, shams, pillows at $883.29, lighting materials at $607.53[2], granite countertops (rather than the original Formica or similar material), and door replacement, were some of the things called into question. Although it was the Respondent’s failure to properly do the roofing that caused the damage to the Complainant, and the Complainant is entitled to restitution, this does not mean that the Respondent had no right to participate in the non mold clean up to minimize costs, to have some input in what was and was not salvageable, and to have an inventory of the make and value of items which had to be replaced. As it is, the Complainant and Restoration One made these decisions with no input from the Respondent and the evidence suggests possible overreaching by the Complainant.[3]

12. In February, 2005, the Complainant noted more leaking and another contractor did corrective work on a corner of the roof. Conclusions of Law The allegations in the Citation and Complaint concern A.R.S.§32- 1154(A)(3)/A.A.C. R4-9-108 workmanship, (A)(7) a wrongful act with substantial injury, and (A)(23) failure to take appropriate corrective action. 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary, 1182 (6th ed. 1990). 2. The evidence clearly establishes a violation of A.R.S.§32- 1154(A)(3)/A.A.C. R4-9-108. The Respondent’s roofing job was totally inadequate and led to the above noted damages. The Respondent’s failure to do the work in a workmanlike manner is a wrongful act which resulted in substantial injury to the Complainant and establishes a violation of (A)(7). 3. The evidence was somewhat mixed with respect to a violation of (A)(23). The parties were diametrically opposed with respect to clean up of the mold. It is concluded the Complainant was justified in requiring a professional company to determine the extent of the mold and in having a professional deal with the mold eradication. As already indicated, the Respondent had a right to have the opportunity to clean up non mold damage and have some input on restoration. However, the only person sent by the Respondent to look at the restoration was Williams who did no work. This resulted in the Complainant securing a contractor. Given the fact that the roof leaked again in February, 2005, and the fact that there is no evidence the Respondent made a serious effort to correct the “corollary damage” as required by the CWO, it is concluded the Respondent failed to take appropriate corrective action and thereby violated (A)(23). 4. The Complainant seeks monetary restitution for her cost in restoring the condominium and its furnishings. The Complainant is entitled to restitution. However, as discussed, the evidence was insufficient to readily determine the appropriate amount of restitution. The initial claim was for $41,987.30. The Complainant then acknowledged she had received $10,000.00 in insurance proceeds. As discussed in paragraph 11 of the Findings of Fact, a number of other costs are somewhat suspect. The Registrar may order restitution if appropriate under A.R.S. §32-1156.01. However, any such amount should be reasonably ascertainable. In this case the matter is better left to a civil forum if it is to be pursued. Recommended Order It is recommended that on the effective date of the Order entered in this case[4], the Respondent’s license shall be suspended for a period of 15 days to be followed by a 180 day period of probation.

Done this day, June 15, 2005.

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2005, to:

Israel G. Torres, Director Registrar of Contractors ATTN: Jennifer Brown 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] The Complainant is a licensed realtor and submitted evidence regarding real estate disclosure requirements for mold damage (Exhibit 6). [2] Now recessed when previously they were not [3] The Complainant did not disclose that she had received $10,000.00 in insurance proceeds until questioned by the Respondent. The Complainant had previously testified that she had been denied recovery by an insurer because the insurer did not cover hot tar or membrane roofs. [4] Forty (40) days from the date of the Order. If the decision is certified by the Director of the Office of Administrative Hearings, forty (40) days from the date of certification.

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