ALJDEC decisions subject to certification as final

2010A-308474254-ROC · Registrar of Contractors · 2011-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 28, 2011

APPEARANCES: Complainant appeared on his own behalf; Respondent was represented by its Managing Member and Qualifying Party.

WITNESSES: Frank Olivas Tom Riggers, Water Specialist for Respondent Craig Moody Adam Ashby, Production Manager for Respondent

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant Frank Olivas brings this action claiming poor workmanship by Respondent Puroclean of Flagstaff, LLC when Respondent performed water remediation at Complainant’s home after a roof leak. Respondent denies the allegation. This tribunal entered the complaint file received from the Registrar of Contractors into the record. The parties presented evidence, including pre-marked Exhibits C1 through C8 (including photographs) from Complainant and Exhibits R1 and R2 from Respondent, and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding no violation. FINDINGS OF FACT 1. Respondent is the holder of license K-61.220541-D, a dual residential and commercial contractor’s license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform carpentry, remodeling, and repair for residential and commercial properties. Craig Moody is the Qualifying Party. At hearing, the evidence showed that Respondent is a 24-hour water remediation company. 2. In January 2009, Complainant experienced a major roof leak. It was not the first roof leak he had, and Respondent had done work at Complainant’s house before. Complainant was called out again and performed water remediation, completing its work on January 11, 2009. 3. Tom Riggers testified at the hearing as to how he performed the work. He stated that he used a thermal imaging camera to find cold spots in the walls and then tested the areas that appeared to be wet with a moisture meter. He was directed to general areas by Complainant’s wife. He testified that this is the standard method for finding water in walls and ceilings. He is confident that he found all the wet areas and remediated them. Complainant’s claim is that Respondent did not follow the standards of the IICRC (Institute of Inspection, Cleaning and Restoration Certification), an organization that certifies Respondent and others. Alternatively, he claims that Respondent did not follow EPA (United States Environmental Protection Agency) guidelines for mold remediation. 5. Complainant submitted evidence showing that Respondent is certified by the IICRC.[1] However, Complainant did not submit evidence showing that the IICRC standards are the same as the minimum industry standards that Respondent is required to abide by as a licensee. 6. The evidence from the EPA, Exhibit 4, is clearly marked as “guidelines” and not industry standards. 7. Complainant is convinced that there is mold in his home. Complainant’s case is built upon his speculation that mold was discovered in May 2010 and that it was caused by Respondent’s failure to adequately perform the water remediation in January 2009. Complainant’s theory is speculative. 8. The evidence presented is insufficient to show what the minimum industry standards are with respect to water remediation and whether or not Respondent complied with them. Complainant presented no expert in the field that stated what the standards are and whether or not Respondent met them. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[4] Complainant has not met that burden. 2. The Citation and Complaint alleges violations of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(2) (failure to follow plans, specifications, and building codes) and (A)(3) by way of ROC Rule R4-9-108 (prohibiting poor workmanship). Rule R4-9-108 requires that a contractor’s work be professional, workmanlike, and be in accordance with industry standards. 3. The evidence does not show that Respondent failed to meet workmanship standards. Complainant did not establish what the industry standards are with respect to water remediation. The standards of the IICRC, upon which Complainant’s claim is built, may or may not be industry standards. In addition, Complainant has shown no plans, specifications or building codes that Respondent has failed to comply with. Complainant’s case is speculative. 4. There being no violation, this matter should be dismissed.

RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that Citation and Complaint 2010-[number redacted] against Respondent Puroclean of Flagstaff, LLC 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 will be 40 days from the date of that certification.

Done this day, July 8, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit 2. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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