ALJDEC decisions subject to certification as final

2011A-5533-ROC · Registrar of Contractors · 2012-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 21, 2012

APPEARANCES: Complainants appeared on their own behalf; Respondent was represented by sole proprietor and Qualifying Party Alan Deobler.

WITNESSES: Dennis Cook, ROC Inspector Elsayed Hammad Cathy Parenti Hammad Alan Deobler

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring this action against Respondent alleging poor workmanship with regard to repair and remodeling work on Complainants’ house. Respondent denies the allegations. This tribunal entered the complaint file received from the Registrar of Contractors (Registrar or ROC) into the record. Testimony was presented from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding poor workmanship and recommending provisional suspension of the license and a term of probation. FINDINGS OF FACT 1. Respondent Alan Deobler, a sole proprietor, is the holder of License No. B.174444-R, a general residential contracting license issued by the Registrar. The license authorizes Respondent to operate as a general contractor for residential projects. 2. In May and June 2011, Complainants hired Respondent to perform remodeling work that included, among many items, killing mold that was present in specified areas where Respondent worked. After Complainants filed an ROC complaint about various aspects of Respondent’s work, ROC Inspector Dennis Cook issued a Corrective Work Order (“CWO”) dated October 31, 20011. Complainants later filed an addendum to their complaint, and another CWO was issued dated January 12, 2012. Pursuant to those CWOs, Respondent was ordered to perform specified corrective work. 3. At the hearing, Complainants stated that the items in the October 31, 2011, CWO had been corrected. They stated that the only issue remaining concerned mold in the master bathroom and under the kitchen sink that had been raised in the addendum. 4. Inspector Dennis Cook inspected the jobsite for mold on January 10, 2012, and could not confirm the presence of mold with the naked eye. He noted this in the January 12, 2012 CWO and did not order any action by Respondent with regard to the mold complaint. 5. Complainants hired Espree Mold Testing (Espree) to perform tests for mold in the home. According to the report issued by Espree,[1] Espree tested to determine if suspected areas or air inside the home contained mold by taking six test samples on January 16, 2012.[2] Espree found abnormal levels of mold in the two areas related to this complaint: the common wall between the master bathroom and the bedroom/office, and under the kitchen sink. It found no significant mold spores in the air. Espree recommended that remediation be performed at the two areas noted. 6. Respondent testified that he had performed all the necessary procedures to remove mold in the two areas. He quarreled with the process used for testing by Espree, but there is no evidence from a witness with expertise in the field to show that the methods used by Espree were flawed. 7. This tribunal finds the evidence from Espree to be credible and persuasive. 8. Complainants have not yet had the mold remediated. Complainants submitted a bid from Firestorm 24/7 Construction, Inc. (Firestorm) to show the cost for remediation of the mold.[3] They did this in support of a request for an order that Respondent pay them the cost of remediation. However, the bid from Firestorm includes more remediation than just for the two areas listed above. Also, there are no other bids in the record by which to judge the reasonableness of the bid from Firestorm. Therefore, the bid from Firestorm does not carry sufficient weight to assess an amount of restitution. In addition, the evidence does not provide a reason to require that Respondent pay restitution in place of an order that Respondent cause the remediation to be accomplished through his own efforts. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] Therefore, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[6] Complainants have met that burden. 2. The Citation and Complaint alleges violations of A.R.S. § 32- 1154(A)(3) by way of A.A.C. R4-9-108 (prohibiting poor workmanship) and A.R.S. § 32-1154(A)(23) (requiring compliance with a CWO). The evidence shows that Respondent complied with the CWOs as they were written. Therefore, no violation of A.R.S. § 32-1154(A)(23) has been established. However, the evidence shows that because of poor workmanship, remediation is necessary in two areas to remove mold and thereby establishes a violation of A.R.S. § 32-1154(A)(3) by way of A.A.C. R4-9-108. 3. Administrative notice is taken of Respondent’s prior license record as reflected on the ROC’s public website on June 8, 2012. That prior record shows that Respondent has held the license since April 2002 and did not have any disciplinary actions taken against him until 2011, when Respondent served a three-month term of probationary discipline from June 9, 2011 to September 7, 2011. 4. The appropriate sanction in this matter is to suspend Respondent’s license unless and until Respondent has properly performed, or caused another properly licensed contractor to perform, remediation of mold at the common wall between the master bathroom and bedroom/office and under the kitchen sink. After Respondent accomplishes that work, a term of disciplinary probation for 180 days is appropriate. RECOMMENDED ORDER IT IS RECOMMENDED that License No: B.174444-R, held by Woody Alan’s Home Repair, be suspended beginning the effective date of the Registrar’s Order until the Registrar receives written proof that that Respondent, or another properly licensed contractor at Respondent’s expense, has performed remediation of mold at (1) the common wall between Complainants’ master bathroom and bedroom/office and (2) under the kitchen sink, and the Registrar of Contractors accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license suspension shall not take place. In addition to the above-provided license suspension, if any, License No: B.174444-R, held by Woody Alan’s Home Repair, shall be placed on disciplinary probation for a period of 180 days beginning the effective date of the Order entered in Case No. 2011-5533 or the date on which the Registrar approves proof of Respondent’s compliance with the terms of the Order entered in Case No. 2011-5533, whichever is later.

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, June 12, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] A copy of the report was submitted by Complainants to the ROC on January 18, 2012. A much better copy of the same report was submitted to this tribunal on May 18, 2012. [2] Espree report (undated) at “Project Description.” [3] This was submitted to the ROC on May 17, 2012. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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