ALJDEC decisions subject to certification as final

2012A-3774-ROC · Registrar of Contractors · 2013-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 15, 2013, at 8:00 a.m. APPEARANCES: Lloyd and Della McQuay (hereinafter “Complainants”) appeared through Lloyd McQuay. Mountain View Industries LLC dba Servpro of North Central Mesa (hereinafter “Servpro”) appeared through its authorized representative and member, Paul Skouson Frost. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Servpro is the holder of License No. B.266274-R issued by the Registrar of Contractors. This is a residential matter where Servpro performed dry-out, cleaning, and demolition work at Complainants’ residence. Servpro also performed a general inventory of Complainants’ personal possessions that were present in the residence and disposed of personal property that was deemed to be either non-cleanable or non-repairable. Complainants were dissatisfied with Servpro’s actions at their residence and filed a formal Complaint against Servpro with the Registrar of Contractors. Complainants alleged that Servpro had failed to complete contracted work and that Servpro had billed their insurance company for work that Servpro had not performed and for dumpster costs that Servpro had not incurred. Complainants also alleged that Servpro had failed to account for hundreds of personal items and that Servpro had removed plumbing fixtures and countertops from Complainants’ residence, despite Complainants’ instruction to the contrary. The parties’ construction agreement provided that Servpro was to perform dry-out, cleaning, and demolition work on Complainants’ residence.[1] Respondent’s dry-out, cleaning, and demolition work at Complainants’ residence was completed on or about October 20, 2012. Complainants were utilizing a different licensed contractor to reconstruct their residence. Accordingly, the Registrar of Contractors did not perform an onsite inspection in this matter. Pursuant to the filing of the formal Complaint, after review, a formal Citation and Complaint was issued by the Registrar of Contractors charging Servpro with a possible violation of A.R.S. § 32-1154(A)(1).[2] Lloyd McQuay (hereinafter “Mr. McQuay”) testified that the Complainants were in Ohio when their residence at 9128 West Raven Drive, Arizona City, Arizona 85123 suffered interior water damage. Mr. McQuay stated that Complainants’ daughter informed them of the water damage in their residence. Mr. McQuay acknowledged that Complainants gave their daughter written authorization to represent Complainants at the construction site. Mr. McQuay testified that Servpro performed demolition work at Complainants’ residence without consulting Complainants’ daughter. Mr. McQuay testified that Servpro disposed of countertops and bathroom fixtures that could have been cleaned rather than discarded. Mr. McQuay stated that Servpro failed to perform a proper inventory of personal property that was boxed and removed from Complainants’ residence. Mr. McQuay testified that Complainants were missing hundreds of personal items from their residence, including a box of souvenir Harley Davidson t-shirts, motorcycle rings and bracelets, and gold-rimmed antique crystal. Mr. McQuay acknowledged that Complainants had not paid Servpro for its dry- out, cleaning, and demolition work at Complainants’ residence. Mr. McQuay stated that the parties are involved in a concurrent civil action regarding Complainants’ claim for monetary damages from Servpro and Servpro’s claim for payment from Complainants. Mr. McQuay testified that Complainants were required to re-inventory their boxed personal items because the inventory performed by Servpro was so poorly performed. Mr. McQuay stated that the contents of the boxes were mislabeled and that the boxes had to be re-packed and re-labeled. Mr. McQuay testified that Servpro damaged the concrete substrate when Servpro removed floor tile from Complainants’ residence and that the damage increased the scope of the work that was required to install new floor tile. Mr. McQuay opined that Servpro was “spiking.” Mr. McQuay defined “spiking” as the process of causing unnecessary damage that would require a contractor to then perform additional construction work to correct the unnecessary damage. Mr. McQuay testified that Complainants lost media that was stored in Complainants’ computers because Servpro discarded the water-damaged computers rather than attempting to clean the computers. Mr. McQuay acknowledged that Complainants’ daughter was able to retrieve the computers before they were disposed of. Mr. McQuay stated that by then, it was too late to save the computers and the stored media was lost. Mr. McQuay testified that Complainants’ daughter observed Servpro’s employees loading water-damaged televisions into their personal vehicles rather than placing the damaged televisions in a dumpster. Mr. McQuay testified that Complainants lost hundreds of personal items that were not properly inventoried by Servpro. Mr. McQuay stated that Complainants’ losses included irreplaceable motorcycle rings, souvenir Harley Davidson t-shirts, belt buckles, leather jackets, insulated overalls, and antique china. Mr. McQuay opined that Servpro had lost control of the demolition project. Della Marie McQuay (hereinafter “Ms. McQuay”) testified that Servpro did not properly supervise its employees during the demolition process. Ms. McQuay stated that Servpro caused unnecessary damage to Complainants’ residence during the demolition process. Ms. McQuay testified that numerous items of personal property, including antique china, Harley Davidson memorabilia, and clothing were not properly inventoried and are missing. Ms. McQuay stated that she was very disappointed in Servpro’s work at Complainants’ residence. Ms. McQuay testified that Servpro left thousands of nails in the studs when Servpro removed damaged drywall from Complainants’ residence. Ms. McQuay testified that Servpro improperly disposed of marble countertops, bath enclosure, and toilets that could have been cleaned rather than discarded. Ms. McQuay acknowledged that Servpro requested that Complainants remove any personal items of value from the residence before Servpro began its demolition work. Paul Skouson Frost (hereinafter “Mr. Frost”) testified that Servpro was contacted on October 3, 2012, by Complainants’ daughter. Mr. Frost stated that Complainants provided Servpro with written authorization that enabled Complainants’ daughter to represent them during the demolition process.[3] Mr. Frost stated that when he inspected Complainants’ residence, he observed extensive mold growth “just about everywhere” in the residence. Mr. Frost stated that the residence had to be demolished “down to the studs.” Mr. Frost testified that Servpro completed its demolition, dry-out, and cleaning work at Complainants’ residence on or about October 20, 2012. Mr. Frost stated that Servpro had not been paid for its work at Complainants’ residence. Mr. Frost testified that at Complainants’ insurance company’s request, a third party was retained to examine Complainants’ personal property to identify the furniture and other property that could be saved. Mr. Frost stated that the third party determined that Complainants’ furniture could not be repaired or saved.[4] Mr. Frost testified that Servpro advised Complainants to remove all personal property, including jewelry, firearms and personal items of value, from their residence before Servpro began its demolition work. Mr. Frost stated that Complainants’ daughter removed some items of personal property from Complainants’ residence before Servpro began its demolition work. Mr. Frost testified that Servpro conducted a general inventory of personal property that was removed from the residence. Mr. Frost stated that an example of a general inventory of personal property would be “a box of shirts.” Mr. Frost stated that Complainants were responsible for creating their own inventory of specific items of personal property in their residence. Brandon Kent Turley (hereinafter “Mr. Turley”) testified that he was a member of Servpro. Mr. Turley stated that Servpro did not have access to Complainants’ residence until Complainants’ daughter gave Servpro a key to the residence. Mr. Turley testified that he advised Complainants’ daughter to remove personal property of “high value,” including firearms and jewelry, from the residence before Servpro began its demolition work. Mr. Turley stated that no security guard was provided for the residence during the construction process and opined that personal property could have been removed from Complainants residence by a third party. CONCLUSIONS OF LAW The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). There was no credible evidence that Servpro abandoned or refused to perform demolition, dry-out, and cleaning work at Complainants’ residence or that Servpro refused to perform demolition, dry-out, and cleaning work at Complainants’ residence after submitting a bid to perform such work. This Tribunal concludes that Complainants failed to meet their burden of proving, by a preponderance of the evidence, that Servpro violated the charged provision of A.R.S. § 32-1154(A)(1).[5] Complainants’ claim for monetary damages for their missing personal property and for items that were discarded rather than cleaned can be resolved in the parties’ concurrent civil action. RECOMMENDed order In view of the foregoing, it is recommended that this Citation, together with the Complaint that it is based upon, shall be dismissed. In the event of certification of this 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 the certification

Done this day, April 26, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit No. R-2 (Contract). [2] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [3] See Exhibit No. R-4 (Authorization for Complainants’ daughter to act on their behalves). [4] See Exhibit No. C-2 (Furniture Medic Invoice). [5] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

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