ALJDEC decisions subject to certification as final

07F-2790-ROC · Registrar of Contractors · 2008-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 20, 2008 APPEARANCES: Complainant appeared on his own behalf and Respondent appeared through its president and qualifying party, Mark Olea (“Olea”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver ________________________________________________________________ Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Pursuant to contract, Complainant retained Respondent to accomplish a dry out of his home, which had experienced water flooding. Complainant alleges certain deficiencies in the work performed and/or materials provided by Respondent and same are discussed in the findings below.

2. The following salient facts were adduced at the hearing and are important to note:

a. On or about January 15, 2007, Complainant’s home was flooded. The home was vacant, as it was being prepared to be a rental property. b. The house was constructed in 1956 and Complainant has only owned the home since 1993. c. After the initial flooding of the home, Complainant contacted Respondent to remove the water from the home and complete the appropriate dry out procedures. d. Evidence or record showed that Respondent first arrived on the scene on January 16, 2007, whereupon it commenced work on the project. e. Subsequent to commencing their work on the project, the home experienced a second water leak and flood on January 18, 2007 f. The applicable contract between the parties was a time and materials type contract, without any fixed price or estimated cost for the project. g. Among other things, the contract provided that Respondent would use its best efforts to remove mold type growths. However, the contract goes on to provide that Respondent “does not guarantee that treatment will permanently remove any mold…”

3. Complainant testified to the following issues that he has with Respondent’s work on the project:

a. A dry-up blower tube was taped to the ceiling hole and it came loose. According to Complainant, he contacted Respondent to repair the taping and when he was told they would be out the next day to reapply the tape, he elected to tack the tube back onto the ceiling himself, using screws. b. He objects to the fact that the entire baseboard was not removed. c. One of Respondent’s employees used his ladder and saw. Nevertheless, he does not claim that they damaged either. d. He feels they should have removed specified kitchen cabinets, wood panels, wallpaper, and carpet tack strips. e. Although Respondent removed ceiling insulation, Complainant contends that they failed to remove all damaged insulation. f. Sometime after Respondent was finished with the project, Complainant found mold in specified areas of the home. g. Respondent has been paid in full by Complainant.

4. Evidence of record showed that at the conclusion of the project Complainant and one of Respondent’s employees walked the entire project and used a specialized water detection device, “FLIR” camera to insure that all necessary dry out of the affected areas had been completed. Evidence presented at the hearing showed that the results from the FLIR camera showed the dry out was, in fact, complete at the time of the final walk- thru.

5. Complainant’s exhibit no. 4 was entered into evidence. This exhibit is a letter from Dominion Environmental Consultants, Inc. (“Dominion”). According to the report, on February 23, 2007 (approximately one month after Respondent finished its work on the project), Dominion did a visual inspection of the premises. The report indicates that “elevated moisture was detected in the north and east walls of bedroom #2 and in the common walls.” In addition, the report showed visible mold in specified areas. No one from Dominion appeared at the hearing to testify regarding their testing techniques or, for that matter, to be subject to cross examination by Respondent. The failure of Dominion to appear for the hearing did affect the weight that was given to this report.

6. William Yaw (“Yaw”) was called as a witness by Complainant. Yaw is the manger of Valley Disaster Services, another company involved in flood remediation. He was shown to have thirteen years experience in the water restoration business. Yaw went to Complainant’s home on or about April 16, 2007 (several months after Respondent completed work on the project).

7. Yaw and his report (Complainant’s exhibit no. 5) showed how his company would have performed the dry out procedure. Although his testimony indicated that his company may have performed additional procedures, over and above those performed by Respondent, it was inadequate to establish that Respondent did anything wrong or that Respondent failed to complete an adequate dry out procedure.

8. Olea testified that he has been involved in the dry out business for fifteen (15) years and his company has performed many successful dry out procedures. According to Olea, every dry out is different, in regard to what needs to be done, taking into account how much water got into the home and how long did it sit there.

9. Olea testified that they used the FLIR camera to see what was wet and then made their judgment call regarding what needed to be accomplished. He emphasized that their goal is to do as little damage (destruction) to the home as possible. He also emphasized that this was a time and materials contract and thus, there was no reason for Respondent not to perform more work or use additional dry out fans, if it had been necessary.

10. According to Olea, Complainant asked Respondent not to drill any unnecessary holes in the wall. However, some holes were drilled as needed.

11. Olea testified that Respondent does its best to get rid of any mold and mildew but they give no guarantee in this regard. Olea indicated that he never saw any mold at Complainant’s home. Moreover, he asserted that the home is over fifty (50) years old and there is no way to know where the mold issue came from that Complainant is complaining about.

12. Rob McGrath (“McGrath”), another owner of Respondent, appeared at the hearing and provided testimony. According to McGrath, Respondent’s insurance company came out at the end of the project to inspect and they found no deficiencies in Respondent’s work. McGrath also testified that all wet insulation was removed from the ceiling.

13. Mike Heyberger (“Heyberger”), Respondent’s superintendant also appeared at the hearing and presented testimony. Heyberger performed a lot of the work on the project. The salient portions of his testimony included the following:

a. He drilled holes where he felt it was necessary. b. He removed baseboard, as necessary. c. He removed insulation, where required. d. He walked the house with Complainant and the FLIR camera at the end of the project and no excessive moisture was found. e. There was nothing unusual about using duct tape to tape the dry out tube to the ceiling. f. The wallpaper did not appear to be affected by the water and that is the reason Respondent did not remove it.

14. Complainant indicated that he is seeking a fine to be imposed against Respondent, as well as a revocation of their license. Olea argued, at the conclusion of the hearing, that the matter should be dismissed since there was no proof that Respondent caused the mold in the fifty (50) year old house and there was no adequate evidence that they failed to perform their work in a proper workmanlike manner.

15. Since this was a time and materials contract, and ultimately Respondent’s insurance company provided coverage, there is no logical reason for Respondent to not do whatever was needed to dry out the home. The home is over fifty (50) years old and Complainant has only owned it for a short period of time. Thus, any mold that was discovered after Respondent’s dry out procedure could have been caused at any time during the existence of the home. The evidence presented at the hearing is not found to be adequate to support any finding of poor or substandard workmanship on the project by Respondent. Complainant failed to sustain the requisite burden of proof on the issues presented.

CONCLUSIONS OF LAW

1. Complainant has the burden of proof and must establish statutory violations by a preponderance of the evidence. A.A.C. R2-19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990).

2. Complainant failed to sustain his burden of proof to establish that Respondent violated the applicable charged sections of the State’s Contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation (07-2790), together with the Complaint upon which it is based, be dismissed. 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 in this matter will be forty (40) days from the date of that certification.

Done this day, February 25, 2008.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By ___________________________

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