ALJDEC decisions subject to certification as final

06F-2536-ROC · Registrar of Contractors · 2006-12-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 13, 2006. APPEARANCES: Ed Zyadet appeared personally. Respondent was represented by its qualifying party, Glen Brennan. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. Badger Restoration, Inc. (“Respondent”) is the holder of License No. 146524, a Class KB-02 contracting license issued by the Registrar of Contractors. 2. Ed Zyadet (“Complainant”) is the owner of a residential property located at 4314 E. Paradise Lane, Phoenix, Arizona. The residence is not Complainant’s primary residence. He uses the house for storage by his contracting business. 3. Complainant’s property sustained water damage. After contacting his insurance carrier, Complainant was referred to Respondent for water remediation. 4. On or about February 20, 2006, Complainant executed a Certificate of Authorization and Contract submitted by Respondent. The parties agreed that Respondent would perform the following scope of work:

Remove all walls, cabinets, bathrooms, floorings, eight feet in height. No ceilings remediation for air sampling. Reconstruction does not apply to this contract.

5. The parties’ contract further provided that Respondent would be paid from the insurance proceeds received by Complainant from his insurance carrier. 6. It is not uncommon in the water remediation industry for the scope of remediation work to expand as water damage is subsequently discovered during the demolition process. 7. In addition to Respondent’s scope of work, Complainant paid Respondent an additional $1,000.00 to remove all ceilings and insulation to inspect for water damage. Although specifically excluded from its original scope of work, Respondent did perform such demolition for an additional price of $1,000.00 and discovered additional water damage. Respondent treated the trusses with IAQ 6000 to prevent future mold growth. 8. During the demolition of the ceilings, Respondent found electrical wires which ran to interior walls that appeared to have been disconnected by others during an earlier remodeling project. 9. The removal of the ceilings also revealed extensive rust in the duct work. The rusted duct work did not appear to have been caused by the latest water damage. Complainant’s insurance carrier would not pay for the removal and repair of the rusted duct work. 10. The demolition of the ceilings also revealed a non-functioning door bell. 11. It took Respondent from February 20, 2006 to on or about March 20, 2006 to receive payment for the original scope of work and the subsequent ceiling demolition from Complainant. 12. The air conditioning duct work, electrical wiring found loose in the ceilings, the telephone wiring, alarm system and windows discovered by Respondent during the demolition of Complainant’s ceilings are found not to have been damaged by Respondent. 13. Respondent is found not to have contracted with Complainant for any restorative work on the project. Respondent’s scope of work was the original scope of work in the February 20, 2006 contract, and the subsequent removal of the ceilings and installation. The parties’ written contract specifically excluded restorative work. While Respondent subsequently provided Complainant with a bid for restorative work at his insistence, Complainant never accepted Respondent’s bid for such work. 14. There was credible evidence presented at the hearing that Complainant’s insurance carrier would now agree to pay him for some of the water damage discovered by Respondent after the demolition of the ceilings and insulation. 15. Respondent is found not to have abandoned its contracted scope of work. Complainant has insisted that Respondent perform reconstruction work outside the scope of the parties’ contract and repair of damage not attributable to Respondent’s workmanship. 16. Respondent completed its scope of work for the agreed upon prices and to minimum workmanship standards. 17. Respondent’s submitted paperwork to Complainant’s insurance carrier and its contract with Complainant listed its contracting license number 146524, but did not use the required prefix “ROC.” 18. There is no credible evidence that Respondent committed any wrongful act resulting in substantial injury to Complainant. 19. Respondent presented evidence of a written Proposal dated December 13, 2006 from RNS Remodeling, Inc., the holder of License Nos. 152409, a residential contracting license, and 160761, a commercial contracting license, offering to perform the following scope of work for a total contract price of $1,525.00:

1). Supply and install door knobs throughout. 2). Supply and install light fixtures throughout the entire house. 3). Supply and install ceiling fans throughout. 4). Supply and install thermostat, door bell. 5). Remove and replace copper plumbing lines in kitchen which blocked installation of duct work.

NOTE: R-N-S was advised that items in 1, 2, 3, 4 were left on the property but were not located upon start of project.

20. Respondent presented evidence of a second written Proposal dated December 13, 2006 from RNS Remodeling, Inc. offering to perform the following scope of work for a total contract price of $550.00:

Replace and install missing duct work in kitchen area approximately 10 to 12 feet.

Inspect duct work throughout house.

NOTE: Duct work appears to be in sound working condition and no rust or corrosion was visible at this time.[1]

21. Respondent presented evidence of a third written Proposal dated December 13, 2006 from RNS Remodeling, Inc. offering to perform the following scope of work for a total contract price of $4,350.00:

Supply and install missing insulation in bedrooms, kitchen, dining room, hall and bathroom ceilings.

Replace drywall on ceilings. Tape & texture.

Prime and paint as necessary.

NOTE: All of my dealings with Mr. Zyadet have been of a professional and friendly nature. A. Schultz.

22. The above Proposals submitted to Complainant by RNS Remodeling & Construction, Inc. cover work outside the scope of work contracted by Respondent with Complainant.[2]

CONCLUSIONS OF LAW

1. The Registrar of Contractors has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. The evidence of record failed to demonstrate that Respondent violated the provisions of A.R.S. § 32-1154(A)(1), as cited in the Citation and Complaint issued by the Registrar of Contractors. 4. The evidence of record failed to demonstrate that Respondent violated the provisions of A.R.S. § 32-1154(A)(7), as cited in the Citation and Complaint issued by the Registrar of Contractors. 5. The evidence of record failed to demonstrate that Respondent violated the provisions of A.R.S. § 32-1154(A)(9), as cited in the Citation and Complaint issued by the Registrar of Contractors. 6. The evidence of record failed to demonstrate that Respondent violated the provisions of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, as cited in the Citation and Complaint issued by the Registrar of Contractors. 7. The evidence of record demonstrated that Respondent violated the provisions of A.R.S. § 32-1154(A)(13), specifically A.R.S. § 32- 1124(B), as cited in the Citation and Complaint issued by the Registrar of Contractors.

RECOMMENDED ORDER

The Citation and Complaint in Registrar of Contractors’ Case No. 06- 2536 is closed on the effective date of the Order entered in 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 40 days from the date of that certification.

Done this day, January 2, 2007.

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Fidelis V. Garcia, Acting Director Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] No one from RNS Remodeling & Construction, Inc. testified at the hearing. Therefore, it is unclear if its personnel examined the missing rusted duct work. [2] RNS Remodeling & Construction, Inc. also failed to list the required prefix “ROC” with its contracting license numbers in the proposals.

-----------------------

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