ALJDEC decisions subject to certification as final

2010A-308471631-ROC · Registrar of Contractors · 2011-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2011, at 1:00 p.m. APPEARANCES: Complainant Janice Bozarth appeared on her own behalf; Respondent Sun Brite Professional Services, Inc. appeared through Greg Bullock, its secretary. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In May 2004, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC196443, Class K-5 for dual water and mold removal to Sun Brite Professional Services, Inc. (“Respondent”). On March 18, 2010, the Registrar received a complaint from Janice Bozarth (“Complainant”) against Respondent, alleging that its remediation of water damage at her house damaged the electrical system and certain personal property. The complaint was assigned to the Registrar’s inspector, Dennis Cook, for investigation. On April 16, 2010, Inspector Cook performed a jobsite inspection. After Inspector Cook did not find evidence of a workmanship deficiency or other contracting law violation, the Registrar closed Complainant’s complaint. On June 21, 2010, the Registrar received a letter from Complainant, requesting that the complaint be reopened and set for hearing. On September 14, 2010, the Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32-1154(A)(3) (namely A.A.C. R4-9-108). Respondent timely answered the Citation and Complaint, denying any statutory violation. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. A hearing was held on February 11, 2011. Inspector Cook testified. Complainant testified and presented the testimony of two witnesses: (1) Edward C. Flores, a journeyman electrician who inspected Complainant’s home; and (2) Jean Bozarth, Complainant’s sister and construction manager. Complainant submitted12 exhibits. Respondent presented the testimony of Patrick Bullock, Sr. (“Mr. Bullock”), Respondent’s qualifying party and treasurer. Respondent submitted eight exhibits. Additional Evidence On October 16, 2009, a portion of Complainant’s house at 2334 E. Desert Trumpet Rd. in Phoenix, Arizona flooded, resulting in damage to the family room, formal living room, office, and part of the hallway. At the time of the flood, Complainant was away from home, in New Jersey. State Farm Insurance Company (“State Farm”), Complainant’s home insurer, hired Respondent to remediate the water damage to Complainant’s house. On October 16, 2009, Mr. Bullock, on Respondent’s behalf, went to Complainant’s house and found several inches of standing water. Mr. Bullock removed furniture and appliances to the middle of the rooms, pulled out the carpet and carpet pad, and used a machine mounted on Respondent’s truck to extract the standing water. After Respondent extracted the water, it set up a power distribution box that it plugged into the kitchen range outlet to run Respondent’s fans and other drying equipment. Mr. Bullock explained at the hearing that Respondent could not use normal 100 amp outlets due to the power requirements of its equipment. Respondent’s bill to State Farm described its work on Saturday, October 17, 2009, as follows: Placed generator on-site Saturday morning. When we set up equipment Friday evening we used a power box off of the range outlet and as we got approx. half of the equipment up and running the range breaker trip [sic] and also trip [sic] the main [sic]. We tried turning off all breakers and resetting the main with no luck. We repeated this on Saturday morning before bringing in the generator again with no luck.

Respondent’s bill to State Farm for its work on Sunday, October 18, 2009, stated that “the main would not reset so we left it off and brought in the generator.” Mr. Bullock testified that when Respondent flipped the main circuit breaker after it tripped, the main breaker reset, but that the 220 amp circuit breaker for the range outlet would not, so Respondent brought in a generator. Mr. Bullock testified that the statement on the bill that Respondent could not reset the main circuit breaker was “a typographical error” that he inadvertently copied when he cut and pasted the entry to bill for the cost of the generator. Respondent shut the water off at Complainant’s house when it started the remediation process, and did not go to Complainant’s house on Sunday, October 19, 2009, to monitor the project. When Respondent went to Complainant’s house on Monday, October 20, 2009, the house again was flooded, even though the water was turned off. Although Respondent suggested that Complainant investigate the possibility of a leak in the slab, no explanation was offered at the hearing for the second flood. Because Respondent was still running its equipment off the generator on October 20, 2009, the flood did not cause any of the circuit breakers at Complainant’s house to trip. Respondent again extracted the standing water and moved Complainant’s personal property to get it out of the water. Complainant blamed Respondent for a power outage that she testified had occurred at her house due to the main circuit breaker having been tripped and not reset. She requested that the Registrar require Respondent as a condition of keeping its license in good standing to reimburse her for her refrigerator/freezer contents ($531.67), Ferrin Electric’s service call to inspect the electrical system ($240.00), a Maytag technician’s service call to inspect the refrigerator/freezer ($60.00), on Mr. Flores’ advice, and “[a]dditional properties damaged by the electrical surge” ($340.31). Respondent took numerous pictures during the course of its remediation project for State Farm. Complainant testified that the pictures showed that rugs and other personal property had been left out on the patio for months, which had caused the rugs not to be salvageable. Complainant requested that the Registrar award her the costs of new rugs ($221.96) and the cost to dry clean Jean Bozarth’s clothes, which had been in Complainant’s house and which Respondent failed to protect ($32.64). Subsequently, State Farm reimbursed Complainant for a portion of some of these claimed losses. Ms. Bozarth testified that State Farm did not reimburse all the costs because it determined the loss was avoidable or because it deducted an amount for depreciation. Ms. Bozarth testified that the rugs were new. Mr. Bullock testified that Respondent did not leave any rugs outside Complainant’s house for an extended period. Respondent had taken the photographs that Complainant used at the hearing on October 17, 2009, in the early stages of the remediation project, when the rugs would dry out faster outside. Photographs of the patio that Respondent took on October 22, 2009, when Complainant’s house was dry, did not show anything on the patio. Complainant also requested that the Registrar require Respondent to replace a large custom blind that had a water stain in the upper left corner. Ms. Bozarth testified that the window never leaked. Mr. Bullock testified that on October 16, 2009, when Respondent started the remediation project, the blind wicked water from the flood to “no more than a foot” from the bottom because it was touching the wet carpet. After Respondent removed the carpet and pad, the blind no longer reached the ground and on October 19, 2009, when the house flooded the second time, the blind stayed dry. Mr. Flores testified that he inspected Complainant’s house on March 3, 2010, while he was employed by Ferrin Electric Company, Inc. (“Ferrin Electric”).[1] Mr. Flores testified that he found no deficiencies in Complainant’s electric system, but that he believes that Respondent’s failure to unplug appliances when it performed the remediation resulted in “electrical continuity through the power cord” that caused a power surge that may have damaged the electrical system and the appliances. Mr. Flores acknowledged that he did not know what work Respondent had performed or the appearance of the jobsite, and was unfamiliar with professional flood remediation techniques. He also did not know that Complainant’s house flooded a second time. Inspector Cook testified that he was not able to confirm the validity of Complainant’s complaints about personal property that Respondent allegedly damaged in its remediation of the water damage in her house. Inspector Cook testified that cleaning and packing personal property was not “under the Registrar’s bailiwick” or considered to be contracting. CONCLUSIONS OF LAW The charged contracting law violation in this matter lies within the Registrar’s jurisdiction to determine.[2] Complainant bears the burden of proof and must establish Respondent’s statutory violations by a preponderance of the evidence.[3] Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] Complainant did not establish that Respondent damaged her refrigerator, electrical system, or any of her personal property when it remediated the water damage to her house in October 2009. Therefore, Complainant did not establish that Respondent violated A.R.S. § 32-1154(A)(3) (namely A.A.C. R4- 9-108).[6] RECOMMENDED ORDER In view of the foregoing, it is recommended that on the effective date of the Registrar’s final order, the Registrar dismiss Complainant Janice Bozarth’s complaint in Case No. 2010-[number redacted] against Respondent Sun Brite Professional Services, Inc.’s License No. ROC196443, Class K-5. 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, March 2, 2011. /s/ Diane Mihalsky Administrative Law Judge Transmitted electronically to: William A. Mundell, Director Registrar of Contractors ----------------------- [1] Mr. Flores submitted a business card that stated that Ferrin Electric had a “C11 & L11” license, but the only license on the Registrar’s database for Ferrin Electric is License No. ROC117751, Class L-11 for commercial electrical. Therefore, Mr. Flores’ inspection of Complainant’s house appears to have been beyond the scope of Ferrin Electric’s L-11 license. [2] See 32-1101 et seq. [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] See A.A.C. R2-19-119(B)(2). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] This statutory subsection 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.” A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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